Bar exam blues

The July 2018 California bar exam overall pass rate of 40.7 percent, the lowest in 60 years, has renewed intense discussion of bar exam issues. It follows the study and decision of the California Supreme Court on whether to lower its existing "cut score," the required pass percentage on the exam. The results of the exam raise once again the most profound issues of fairness and legitimacy in the training and qualification of lawyers.

Full disclosure before I continue this column: I have spent far too much time in my life focused on the California bar exam. For 12 years while I was on the faculty at the USC Gould School of Law I taught the basic bar subjects of Contracts and Real Property. Overlapping some of that time, for 15 years until the mid-1980s I taught Contracts and Real Property, and some years also Wills and Trusts, in one of the leading California Bar Review courses. About twenty years after teaching my last bar review course I began serving on the State Bar Board of Governors. For the three years before becoming state bar president I was the board liaison to the Committee of Bar Examiners. I attended every meeting of the Committee during that time, as well as sessions in which questions for the exam were drafted, and initial grading sessions of answers to the exams at which standards for grading normalization were adopted.

I am familiar with the California Bar Exam.

The California bar exam seeks to test minimum knowledge of what are known as the black letter rules of law. It does so through a combination of essays and multiple choice questions. In terms of meeting what it seeks to test the exam does so with great precision and extraordinary attempts at fairness. Exhibit A: In 2008 there was an earthquake 10 minutes before the noon end of a morning session of the exam. Psychometricians at great expense reviewed all the grades of those affected by the earthquake, and based on their work several students had their grades raised to a passing level based on the analysis of what their scores would have been without the earthquake.

The most important issues with the bar exam are not with its precision or fairness within it its own terms. Nor do I think the bar exam results raise an antitrust issue of limiting competition within the profession. It is difficult to claim that California has limited the number of lawyers. Within the past 50 years California has gone from about 30 thousand lawyers for a population of 15 million -- one lawyer for every five hundred residents -- to about two hundred thousand lawyers for a population of 40 million -- one lawyer for every two hundred residents. That is a per capita increase of two and half times the number of lawyers per resident. Given the median age of workers in California close to one out of every hundred adult working residents of California is a lawyer.

The real issue for the California bar exam -- and the reason for the focus on the cut score -- are issues of fairness and even legitimacy. We have apparently gotten used to it, and so focus on the cut score. But it should not be normal nor is it fair that a large percentage of those who have spent at least three years of their lives and well over one hundred thousand dollars for their professional education fail a licensing exam. There is something deeply wrong either in the structure of the education we provide, the standards we set for the profession, or our testing methods.

For the immediate test takers in February and next year lowering the high California cut score is important, even if it could be changed in time. But on the larger issues of fairness will it be any fairer if "only" 50, 40 or 30 percent instead of 60 per cent fail the exam. Have we come so far from "failure is not an option" to "failure at significant levels is accepted" so long as the percentage is not too high, and the failure rate does not run afoul of ABA accreditation standards.

There are other things that could be considered in both the short term and the long term. In the short term, rather than putting the pressure on the State Bar and Supreme Court of California to study and determine a unique cut score, why not consider just accepting the New York cut score. Practice in New York and California is not that different.

Another possibility to deal with immediate perceptions of unfairness is to consider adopting the Uniform Bar Exam, now accepted in 33 jurisdictions, including New York, with Texas and Ohio soon to follow, and seek a national consensus on a cut score. Adopting the Uniform Bar Exam would also have the advantage of increasing the national competitiveness for students of California ABA schools.

California could consider lowering the financial burden on law students as the state of Arizona does by permitting third year law students to take the bar exam in February, to be admitted in June if they also successfully graduated. That would cut down on the time lost in the summer and the long wait until the Friday before Thanksgiving to find out the result of the exam. Some of these ideas may work, some may not, but they all should be considered.

In the long term the profession needs to face the brutal unfairness of what it does to so many students. The assumptions of lawyer training were shattered by the great recession of 2008-09. Training and certification relied on a triad. Law schools focused on substance and legal thought as the basis for a lifetime of practice; the bar exam tested for minimum competence; and employers trained young lawyers. But during and since the great recession clients no longer are willing to pay for training. And the changes in legal technology, both in the practice of law and in providing competition for lawyers have changed what it means to be a lawyer.

Professions go through crises of legitimacy. It was only in the late nineteenth century that a call for professionalism for lawyers led to bar exams being adopted. It was only with the Flexner report of 1910 that medical education and certification was held to professional standards.

The changes in the legal profession, and the annual unfairness to those who take the bar exams, may call for a similar focus on today by courts, bar associations, law schools, and the National Conference of Bar Examiners. It's time.