Passing the bar

The current discussion about whether to lower the passing score on the California bar examination to match that of other states raises questions about how much bearing the exam has on determining who will be a good lawyer and what is the future of the legal profession in California.

There is no evidence that California's bar exam threshold passing score, which is higher than most other states, protects the public from unqualified persons practicing law, measures an attorney's skills or ensures attorney competency. As it is a "pass or no pass" test for which successful passers are never given their scores, it is impossible to defend the contention that the bar exam really measures an attorney's ability to practice. "Setting the bar" at one level or another without any correlation of test scores to an attorney's future practice or simply because this is how it has been done in the past is without justification.

Knowing that an attorney has passed the bar exam does not assist the public in selecting an attorney as one is not able to distinguish between the good test takers and those who barely scrape through. Even if bar passing scores were to be posted, it is doubtful that they would be very useful to clients in selecting an attorney, as numerous practice areas call for completely different skills. Clients retain attorneys based on their ability to resolve legal problems, not because they were good test-takers.

In practical terms, passing the bar is a measure of a law school graduate's adeptness in answering intricately detailed multiple-choice questions on certain core subjects and rapid-fire writing a limited number of essays, often based on improbable fact patterns, designed generally to test analytical skills. Little is asked that will ever be used by most attorneys in the real life practice of law.

There is a fiction that California's higher passing score than most states weeds out unqualified applicants and prevents them from inflicting themselves on the public. Virtually everyone in the profession knows that passing the bar on the first or a later try has little relationship to an attorney's competency to represent clients. Good judgment and other qualities in representing clients are the marks of a good lawyer, not how they did on a bar exam. Abraham Lincoln, who never sat for a bar exam, is an oft-cited example in this regard.

It is common knowledge that nearly every graduate of an accredited law school passes, sooner or later. Different than before, today's rigorous law school admissions process and curriculum screen out those who aspire to be lawyers but lack the basic skills or discipline to practice law.

Law schools do a pretty good job at preparing their students to tackle the bar exam. However, by the time the bar exam rolls round, the content of subjects tested on the bar exam may be hazy in the minds of bar applicants. So it is a not-well-kept secret that many pass the bar by acquiring just enough exam-taking techniques and black-letter law offered in post-law school cram courses. Those who do not pass the bar exam on their first attempt often fail by a mere handful of points. Through prep courses and study, most applicants get the hang of the exam and pass.

It is suggested that a slightly lower passing score could increase the number of minority applicants passing the bar. If there is any validity to the yet-to-be-proven proposition that minorities score lower, an adjustment in the pass score would assist in allowing more minorities to become attorneys. This would ease an arbitrary barrier that may have impeded some qualified minority bar applicants from becoming attorneys and allow more to help their communities by furnishing legal services.

With bar cards in hand, successful passers, whether first-timers or not, are equally entrusted with the responsibility of representing clients. The ability to pass the bar exam and serve ones' community was put to the ultimate test by the late Maxcy Filer, who passed the bar exam on his 48th try in 1991. During the quarter of a century that he studied at night and took the bar exam, Filer served as the president the NAACP in Compton and worked as a paralegal in the law office of his two sons, one of whom now is a distinguished superior court judge. Once he became an attorney, it is doubtful that Maxcy Filer's clients asked him or cared about how many times he had taken the bar exam. Their concern was getting a lawyer, which often could be hard to find in his practice area.

Certainly the bar exam serves a purpose. But the public should not be concerned about the legal profession deteriorating by a slight change in the bar exam passing score that simply conforms to other states' practices. There have been a number of adjustments to the exam process over the years. None has been shown to have lessened protections against attorney malpractice or mischief. As emphasized by recent changes to the State Bar enacted by the Legislature, vigilant discipline of attorney misconduct and strong enforcement of ethics canons governing professional conduct are the best methods to keep attorneys in line.

Thus, there is no validity to the argument that incompetents will be taking over the legal profession if California conforms to other states' bar exam standards. Moreover, this modification may contribute to improving the diversity of the legal profession and make attorney representation more available to all Californians.