One bar exam is enough

The California Supreme Court should join the vast majority of other state supreme courts that have adopted reciprocal admission on motion for experienced attorneys from other states. Studies by the State Bar of California have recommended, and the California Legislature has endorsed, this practice.

"Admission on motion" simply means that out-of-state licensed attorneys in good standing do not have to reinvent the wheel and take another bar exam. They still have to apply, pay the application fees, which generally range from $1,000 to $2,000, pass the California's extensive moral character vetting process, submit fingerprints, and be recommended for admission by the Committee of Bar Examiners.

No licensing test can perfectly predict the performance of applicants, safeguard the public with certainty, or ensure an adequate supply of attorneys to meet the demand for legal services. In virtually every learned profession in the state, California has adopted reciprocal licensing. But not for lawyers.

For at least the past 22 years, the California Supreme Court and State Bar have resisted implementing an admission by motion process for sister-state attorneys, even though appointed panels and the California Legislature have recommended reciprocal admission. In 1995, state and federal judges and past presidents of the bar, among others, issued a Final Report of the Commission on the Future of the Legal Profession and the State Bar of California. The panel unanimously recommended reciprocal admission for sister-state attorneys with three years of experience.

In 2000, the California Legislature enacted Senate Bill 1782, permitting admission on motion by sister-state attorneys, and directing the California Supreme Court to adopt rules for the same. The Legislature asked the Supreme Court to consider many factors, including years of practice, specialization and intended scope of practice, moral character evaluation and disciplinary implications.

The Supreme Court's appointed a task force -- almost all of whom were active participants in the licensing paradigm being studied -- issued its final report in 2002. The task force recommended admission by motion only for in-house counsel and legal services attorneys. It did not permit admission on motion for private lawyers who would compete for the private practice attorneys' business. The report did suggest that additional changes that "may be appropriate and beneficial to the public" be reviewed in a few years. Fifteen years later, neither the Supreme Court nor the State Bar have revisited admission by motion. Its consideration has been overdue.

The American Bar Association undertook two studies of admission on motion, both of which recommended states adopt the practice for experienced attorneys. The 2012 ABA Commission on Ethics 20/20, echoing the recommendations of the 2002 ABA Commission on Multijurisdictional Practice, recommended admission on motion, noting that over 40 states had adopted the practice, and that admission on motion has "enabled lawyers to represent their clients more effectively and efficiently, provided clients with more freedom regarding their choice of counsel and afforded lawyers more personal and professional flexibility." The 20/20 Commission was unpersuaded that passage of a bar exam is necessary to demonstrate competency in another state, as detractors have argued. It also determined there was compelling evidence that absence of admission of motion disproportionately harmed women and minorities.

The Uniform Bar Exam was developed by the National Conference of Bar Examiners to establish uniformity for state bar exams, recognizing that law schools teach a national curriculum. Competence has been defined as the ability to take on and complete a matter with the requisite skill and knowledge. Twenty-six states and the District of Columbia have adopted the UBE. The ABA and Conference of Chief Justices have recommended its adoption. The UBE also stands for the principle that one bar exam is enough to determine competence.

It is imperative that the California Supreme Court revisit admission on motion and consider the wealth of information accumulated on the subject since 2002. The benefits to the public and profession have been clearly established, while concerns about risk to the public have been thoroughly discredited. The ABA has concluded that nine out of 10 fundamental lawyering skills are not tested on a bar exam. Hence, bar exams for experienced attorneys are not valid test. They are also not reliable because it is well known by psychometricians that it is almost impossible to get subjective graders to agree on a score. They are also not fair test because many practice specialties are not tested such as patent law, immigration, taxation, child custody and indigent legal services. .

This lack of reliability and validity is not a new issue. The experienced attorney California bar exam is a 100 percent subjective test. The reports that the bar prepares for the California Supreme Court have shown that the bar exam subjective test given to experienced attorneys for the past 30 years has a correlation coefficient below 50 percent. Correlation coefficients reflect the degree on subjective grader agreement. Dr. Robert Kane of the National Conference of Bar Examiners has reported that a level of consistency greater than or correlation coefficient higher than 84 percent is required for subjective tests. The State Bar's former testing expert Dr. Stephen P. Klein has published RAND Corporation findings that 100 percent subjective tests should never be used in isolation for high-stakes decisions.

The State Bar has also admitted that "[t]here is no empirical evidence available that indicates California lawyers are more competent than those in other states. Nor is there any data that suggests that a higher cut score reduces attorney misconduct." While the bar insists that requiring experienced attorneys to take the bar exam protects the public, it is not a secret that the requirement protects in-state lawyers from competition. If there is a countervailing public policy to rejecting the ABA's recommendation and allowing admission on motion that outweighs the benefits, the State Bar and the Supreme Court should provide that evidence to the public.

Bar exams are high-stakes tests and requiring experienced attorneys to sit for an entry-level licensing exam is not a trivial matter and can have a devastating impact on careers and livelihoods. It excludes thousands of qualified lawyers who could increase the accessibility and affordability of legal services. Lawyers who have practiced law for three or 33 years have learned how to practice law by practicing law.

Dr. Gary Klein, a world famous expert on decision-making, in controlled scientific experimental tests has demonstrated that licensing officials are less qualified to judge competence than novices and experts actually working in the profession. Klein played six videotapes for three audiences: 10 novices who had just finished an eight-hour CPR course; 10 CPR instructors who were experienced teachers but have never performed CPR on an actual victim; and 10 paramedics who had used CPR many times. Five of the videotapes showed novices with minimal training performing CPR; the sixth tape showed a person who was an actual paramedic performing CPR.

Klein's study asked each participant to imagine it was his or her life on the line. He asked each group of participants to identify which one of the six people they would want to do CPR on them. Nine out of 10 actual paramedics picked the actual paramedic. When asked why, they could not point to any one thing other than he seemed to know what he was doing. The novices generally chose the paramedic. Only three of 10 instructors chose the paramedic to save their lives. According to the instructors, the paramedic was not following the rules carefully and according to their instructions.

If licensing officials cannot spot the difference between a novice and an expert on a skill set as basic as CPR, it is absurd to think they can do so on a skill set as complicated as practicing law based on a subjective testing process that the State Bar of California's own testing expert has concluded should not be used in isolation for high stakes licensing decisions.

History well teaches under the rule of law no citizen, race, gender, religion or sexual orientation is inherently superior or inferior. If all men and women are created equal, than all licensed attorneys are created equal.