Monday, July 27, 2020
The Injustice of the Bar Exam
There are many practices in the legal profession that we continue because of tradition. Next week, in the midst of a global pandemic, law school graduates in the class of 2020 will be forced to disregard public health recommendations to spend two days sitting for the Bar Exam—for no better reason than that’s just the way we’ve always done it. As of today, 22 states— Arkansas, Arizona, Colorado, Idaho, Iowa, Kansas, Minnesota, Missouri, Mississippi, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Virginia, Washington, West Virginia, Wisconsin, and Wyoming — plan to offer the Bar Exam live on July 28-29. “The bar exam is a horrible way to determine who is qualified to be an attorney, especially since the exam does not even test the skill set that attorneys need for practice.”
Admission to the legal profession has undergone numerous changes since our country’s founding, many inspired not by a desire to ensure competence, but instead a desire to exclude certain people from the profession. Legal academics, judges, and practitioners have acknowledged these improper motivations, and some have made noble efforts to reform these systems—but to no avail. The legal profession, particularly the upper echelons of the profession, remains disproportionately White and male. response of bar examiners to the Novel Corona Virus and our current unpredictable life through this pandemic, has been at least tone deaf and at most a total disregard of public health. This system does not just need an overhaul; we need to start over.
I do not need current and future students to suffer the way I did in law school and during bar preparation to prove that they are worthy of joining the profession. Instead, I believe we should strive to correct what was wrong about our experiences—from the lack of diversity on our campuses, to the classroom and bar examination experiences that approach hazing. There are many reasons to abandon the current bar examiner driven character and fitness followed by a bar exam process.
First, the bar examiners hold cartel power. In Ben Edward’s Professional Prospectus, he explains that cartelization occurs when professionals act in their own interest rather than that of the public. For attorneys, many bar association rules seem more designed to restrain competition between lawyers than to protect the public. Bar examiners appear interested in continuing to exist, and as a profession the idea that a certain number of people sitting for the exam in each state must fail each administration has devolved into protectionism, that does more to protect the cartel than the public. As a result, the bar examiners have little oversight.
The legal profession has an access to justice problem. While it is most clearly a problem for low-income individuals, it is also true for the middle class, who are too wealthy for pro bono services, but too poor to afford the legal counsel they need in all but the most dire of circumstances. Pro bono services exist, and there is a right to counsel in criminal litigation, but in all other circumstances most people go without legal representation. For clients in need of civil litigation and administrative law-based services, which includes life-altering controversies like landlord-tenant disputes, debt collection, tax audits, and immigration, there is little guidance on how to find a competent attorney, and no support for the expense of representation. Small businesses often go without legal advice on structuring and contracts, to their own demise. Our system perpetuates these inequalities by assuming there is reason to restrict the number of legal practitioners in a state even more than the restrictive process of graduating from college, taking the LSAT, and completing law school.
The current system also fails to adequately measure and promote competence, as Ben Edwards notes. A disconnect exists between what is learned in law school and tested on the bar exam, and what is needed in practice. Consequently, a student can do very well in law school and pass the bar exam without even a passing understanding of many elements that are fundamental to every day legal practice. When I graduated from law school in 2001, I had never written or even seen a contract, and I did not understand the importance of discovery or due diligence. I did understand the rules of evidence and procedure, but I did not understand how those rules translated to what guides an attorney in everyday practice.
In some subjects there’s also a lack of depth, and an overemphasis on commonly tested areas. I teach an array of business law related bar tested subjects: Contracts, Business Entities, Sales, and Core UCC Concepts (a survey of Articles 2, 3, 4, and 9). I also teach Professional Responsibility. In all of these courses, professors have the ability to make judgment calls, as it is impossible to cover any subject comprehensively in a 3- or 4-hour course. Most of the time, when choosing between two topics I will choose what is on the bar exam. So, for example, in Core UCC Concepts, I minimize time spent on banking, credit cards, and electronic payments, opting instead to spend more time on Article 9. I am aware that most of my students will only take one class on the UCC beyond first year Contracts, and I feel a duty to ensure that I expose them to what they need most for the bar exam, rather than exploring the law behind the electronic payments they engage with every day.
The most disturbing outcome of the current system involve civil rights abuses, primarily through the character and fitness process. The purpose of the character and fitness examination is to protect the public and the justice system by ensuring that those admitted to the bar are worthy of trust and confidence. To accomplish this goal, many states still scrutinize personal mental health records, require extensive explanations of items deep in an applicant’s past, which re-victimizes those in recovery. This is a system in which a rape victim must explain why they sought counseling and were medicated during law school, while the perpetrator sails through the process if the victim chooses not to prosecute. Such a system should not be sustained. The message of the character and fitness process is not to graduate from law school healthy and whole, with proper coping mechanisms for stress. Instead, an applicant will be better off avoiding creating a record of “mental or emotional instability” or “drug or alcohol dependency.” Adding even further insult to injury, to appeal a denial of a license requires funds many bar applicants do not have. Appearing before the board of law examiners without counsel almost always ensures a failure to obtain a license.
This summer has shown us that the system has no transparency and inadequate oversight. State-by-state, it is difficult to determine who is in charge of the exam, who has the authority to veto board of law examiner decisions, and even to whom one can appeal. Without any explanation, it appears these decisions are made with a complete disregard for human life. Harm is being done to students. To date, this harm is psychological, emotional, and financial for many. When graduates sit for live exams next week in 22 states, this harm could get more serious, resulting in the death of these graduates and their loved ones.
No aspect of our justice system accurately reflects the makeup of America, nor does it reflect those who fall victim to the justice system’s shortcomings. The structure in place for licensing attorneys contributes to these disparities. Bar examiners have shown that they are not equipped to evolve with the times, nor are they equipped to properly assess the competency of graduates to practice law. The goal appears to be to maintain cartel power, not to advance access to justice. For these reasons, it is essential that all lawyers, as members of a self-governing profession, take this power away from the bar examiners and design a new system for admitting members. What was once a mere scholarly debate has become, in the age of Covid-19, a matter of life and death.