Basing recommendations on facts, not opinion: considering alternative pathways to licensure

When I attended law school, I learned that the rule of law is based on facts, not opinions. Unfortunately, the authors who recently submitted their Op Ed arguing against offering an alternative "Pathway to Licensure" in California have based their comments on their own opinions, misrepresentation of facts and personal gains.

The authors identify six reasons they oppose non-exam options. Each explanation is based not on actual experience or knowledge, but rather on assumptions and self-serving conclusions.

1. Assuring Substantive Knowledge: As noted by others who have weighed in, the current two day bar exam does not ensure substantive knowledge of the law and/or legal writing or analytical skills in a manner superior to what can be demonstrated via supervised practice. How can I be so sure about this? For the past three years I have run the Legal Services Funders Network (LSFN) Public Interest Bar Fellowship (www.legalservicesfundersnetwork.org). Our six month post-graduate fellowship matches new law school graduates with local Legal Services Organizations (LSO) where they spend over 400 hours working alongside seasoned public interest lawyers. Our LSFN Fellows gain experience working with clients, attending court proceedings, negotiating settlements, and doing legal research and writing while adding valuable additional capacity to their LSO Hosts and increasing access to justice. This work is far from easy. Our Fellows work tirelessly to protect the rights of the most vulnerable members of society. In order to become an LSFN Fellow law school graduates must complete the full scope of required courses at their law schools, thus there is no disincentive to enroll in foundational courses. To the contrary, those who opt for a pathway option will take more courses that teach them how to become great lawyers, rather than how to become great bar exam takers. Finally, the authors fail to acknowledge that supervised practice was historically the sole method of licensure.

2. Quality and Consistent Supervision: Again, with apparently no actual knowledge about the robust and high quality supervision and onboarding programs offered in the public interest law sector (as well as many private sector firms), the authors assume that a pathway option cannot be properly supervised in a consistent and uniform way. The LSFN Fellowship, now in its third year, has close to one hundred current Fellows and alumni. Our Fellows have been placed in over thirty different LSOs and our evaluations show that the level of supervision has been exemplary. We have been asked to replicate and expand the fellowship statewide. According to the State Bar website, registration for the bar exam has in prior years been as high as 16,000. However, that number includes all examinees (first time exam takers, repeaters, out-of-state attorneys, etc). In recent years the total annual number of individuals who took the California bar exam has been roughly 11,000-12,000. From this number, approximately half are first time bar exam takers, with 5,000 taking the exam in July, and the remaining 1,000 in February. The pathway program would primarily be used as an option for first time exam takers. Based on Oregon's model, if one-third of the first time exam takers opt for a pathway option, that would equal 2,000 per year (Note: it will take several years to reach this figure, as a pathway option would likely commence with a smaller pilot). The State Bar's Provisionally Licensed Lawyer program, established in 2020 during the Covid-19 pandemic, has enrolled over a thousand new attorneys, many of whom are working at LSOs. Thus, the State Bar has experience and expertise in overseeing a similar program already. The claim that a pathway option could open the floodgates to unqualified legal practitioners is again based on opinion. The reality is that law school graduates working under supervision for six months to a year are much more likely to protect the interests of the public than brand new graduates, who, having never performed any legal work, simply pass the bar exam and voila, they are allowed to take on clients. How do I know this? In 1992 I was one of the "newbies" who after successfully passing the bar exam on my first attempt was allowed to practice law "a la minute."

3. Costs: Again, the authors assume that administering a pathway option will involve significant additional costs to the State Bar and no revenue stream to cover said costs. In discussing the pathway option, LSOs and many other employers have suggested that the $830 fee to take the exam ($677 registration fee and $153 laptop fee) could instead be allocated to the administration and oversight of the pathway program. These employers may be in a position to absorb this fee, as pathway applicants could commence work shortly after graduating from law school, rather than after taking the bar exam (2.5 months post-graduation) or after the bar results are released (6 months post graduation). Unlike their classmates who opt to work for private law firms (like the anti-pathway authors), most new public interest attorneys must cover the cost of bar exam prep courses ($2,000-4,000), exam fees ($830), MPRE registration fees ($135), application for Moral Character Determination ($551) and finger printing costs themselves and do not receive "bar stipends" to help cover living costs while they study for and take the exam. New law school graduates are advised to put aside approximately $6,000 for these expenses, which do not include living expenses. The authors also fail to acknowledge that the State Bar already incurs significant costs associated with exam venue rentals, exam proctors, exam graders and others associated with the exam and these individuals need oversight and training as well.

4. Diversity: Is it a surprise that the authors, one of whom founded BarEssays.com, suggests that the solution to the diversity issue is for the State Bar to provide funds and resources for minority law students to pay for bar review classes? Or that both authors, who attended law schools with pass rates well above 90%, think that law schools with lower pass rates simply need to improve their teaching? The reality is that the bar exam was designed for affluent law students who have the financial resources to spend 10 weeks exclusively preparing for the exam. Non-native English speakers are afforded no additional time and systemic cultural issues, such as imposter syndrome and worrying about one's finances impacts performance. A pathway option would allow individuals who opt for this route to avoid incurring on average $10,000 in costs associated with taking the bar exam, commence work immediately after graduating law school and avoid the uncertainty of "day of" issues such as being ill, getting stuck trying to commute to the exam site or needing to provide care for children and other family members.

5. Quality of Law School Education: The authors randomly have decided that the bar exam is the methodology for overseeing law schools. Not only is this not the role of the exam (the State Bar has many other departments that serve in this capacity), the authors fail to understand that many law schools with lower pass rates offer options that allow non-traditional students to attend law school based on their lower tuition cost, part-time/evening programs and locations. Additionally, the BRC has not yet determined who will be eligible for the "non-exam pathway." So, the conclusion that it will be offered to those who attend unaccredited and correspondence law schools is erroneous.

6. BRC Composition: The authors assert that the BRC is made up of only three practicing attorneys. Not true. While the BRC set aside three spots for individuals who represent the California Lawyers Association (CLA), many of the other members are practicing attorneys, but are filling positions that have been set aside for those with expertise in additional areas (such as expertise in testing) and/or are serving as representatives from other State Bar committees. The vast majority of the members are practicing attorneys and/or have practiced law recently.

Finally, the statement that the BRC has hastily and unnecessarily been working on the pathway option is false. The State Bar formed the BRC after years of analyzing the bar exam. Having done this, it became clear that the bar exam has built in implicit bias that even if revised, still will put many BIPOC and non-traditional law school graduates at a disadvantage. The BRC has now been working for a year developing its recommendations, which will hopefully be presented this fall to the Board of Trustees and then to the California Supreme Court for consideration.

This process will be iterative, as it has been in Oregon, and when the final plan is hopefully approved, it will be one that has been thoroughly vetted over a significant period of time.

Sadly, the authors' desire to cling to an outdated methodology to license attorneys in California helps explain why there are so many lawyer jokes and why the public dislike attorneys. The world is changing. The way we license lawyers and the composition of lawyers in our state needs to evolve as well.