Bar proposes performance tests for exam alternative

The State Bar board's proposal to the Supreme Court for a pilot project alternative to the bar exam recommends that after participants complete at least 700 hours of legal work on eight projects they take a performance test, with a cut score set by the bar.

The proposal, outlined in a letter sent to the justices last Friday by bar Executive Director Leah Wilson, noted that the proposal was controversial and opposed by most of the state's largest bar associations. An attachment showed that the Board of Trustees vote to forward the proposal was 6-2, with two members absent.

The letter suggests that agency staff determine many of the procedures and requirements for the program where the state high court does not specify its preferences. It anticipates the program would start and conclude by Dec. 31, 2025, if approved.

In addition to the tests and the cut score, which are also elements of the bar exam pathway to licensure, the proposal says that the 700 to 1,000 hours of supervised legal work "was intended to allow candidates to complete the program in roughly the same time it would take to study for the bar exam and receive bar exam results."

The high end of 1,000 hours translates to 25 weeks at 40 hours per week, the proposal stated. The lower end is similar to the 675-hour requirement adopted by the State of Oregon. "The pilot will provide an opportunity to test the hours requirement, with evidence-based refinements to be included in any proposal for program continuation or expansion."

Wilson's letter said the board does not view the portfolio pathway as easier than the bar exam.

"Each component of the portfolio and the performance test(s) will be graded anonymously by independent examiners," it states. "The score(s) on the performance test(s) can either be combined with all other parts of the portfolio to produce an overall score or the performance test(s) can be a 'must pass' item."

"A cut score needs to be established," it said.

"The performance tests will be developed later if and when the Supreme Court approves the pilot Portfolio Bar Exam," the bar's media office said in an email Tuesday. It noted that examples of performance test questions and answers are available on its website.

"The Board made clear its belief that the bar exam is not the only, and may not be the optimal, mechanism for assessing minimum competence to practice law," Wilson wrote to the court. "This belief is grounded in a recognition that, despite our best efforts, the traditional bar exam continues to rely heavily on rote memorization as opposed to the skills that new attorneys need to competently practice law."

The State Bar "acknowledges the concerns expressed by some that the development and consideration of this proposal is inappropriate" since a Supreme Court-appointed Blue Ribbon Commission declined to make a recommendation on an alternative to the bar exam, the letter said. Also, it said, there was "significant opposition to the idea of an alternative pathway by many in the licensee population. While the Board appreciates these perspectives, the Board believes that the value of an extremely limited scope pilot in advancing this important re-examination of how to improve the assessment of minimum competence in a fair and equitable way outweighs the concerns expressed throughout this challenging policy debate."

An attached chart said that of 2,814 comments submitted, 71% disagreed with its proposal. Among attorneys, the opposition was 86%, while 87% of nonattorneys favored the idea.

Of the 134 organizations that commented on the proposal, 74 disagreed and 61 of those disagreeing "represented state, local, and affinity bar associations, many of which signed on to and/or separately submitted the letter of opposition from the Los Angeles County Bar Association as representative of their views."

"Of those agreeing, there was considerable support for the proposal in the legal services community, with 34 such organizations agreeing or agreeing if modified, including 22 that signed on to the support letter submitted by Disability Rights Education and Defense Fund," the letter said.