To Bar or Not to Bar

The pandemic did one thing: It shined additional light on the legal community’s hot debate over the bar, a test so tough that former New York Mayor Ed Koch flunked it the first time. Indeed, a number of mainstream publications picked up on the controversy. 

Here’s a headline from a Washington Post education blog: “Why this pandemic is a good time to stop forcing prospective lawyers to take bar exams.”

And this is from Slate: “The Pandemic is Proving the Bar Exam is Unjust and Unnecessary.”

And then there is this: “It is time to stop pretending that the existing bar exam is a valid measure of minimum competence to practice law. It does not begin to test the breadth of skills minimally competent lawyers need. And those skills the current exam does test are tested in a way that has little relationship to how the skills are used in practice.”

The above comes from a paper written nearly 20 years ago — “A Better Bar: Why and How the Existing Bar Should Change,” by Andrea Curcio, a law professor at Georgia State University.

So all of this criticism is hardly new, nor is it not being addressed. The NCBE created the Testing Task Force to look into improving the bar both in content and in delivery. The task force is expected to  deliver the results and recommendations from its three-year study in January.

“There’s been much debate about the bar in its current form,” said Sara Berman, director of programs for academic and bar success for AccessLex Institute. “It’s change that’s long overdue.” 

She referenced a recent study funded by AccessLex that examined the California bar, which is considered to be one of the most difficult in the nation. The study found that the high bar affected a high number of test-takers of color negatively and didn’t guarantee that passing lawyers would be legal superstars. 

“The study determined that no relationship exists between the selection of a cut score (minimum passing score) and the number of complaints filed, formal charges or disciplinary actions taken against attorneys in the jurisdictions studied,” AccessLex said. 

However, California’s high cut score greatly reduced the number of racial and ethnic minorities who passed the bar. If California had used a lower, national median cut score during the 11 years that the study spanned, the number of examinees eventually passing the bar would have increased by 8,734. The study found that 3,876 of them would have been attorneys of color, including Asian, Hispanic and Black candidates. 

Berman doesn’t merely support reforming the bar exam. She also believes other avenues to licensing should be explored. The bar should not be thebe-all and end-all. Law school students are not monolithic, she said, nor should the method by which they become practicing attorneys.

At the center of the issue is competency, she said.

Just what is that? And how do you measure it? 

When the coronavirus hit, Berman and a number of other legal education leaders penned a paper called “The Bar Exam and the COVID-19 Pandemic: The Need for Immediate Action.” The paper offered a number of options to the bar, including supervised practice and diploma privilege, which allows law school grads to practice without taking the bar. 

Other options to the bar do exist, she said. One example is the Daniel Webster Scholar Honors Program at University of New Hampshire Franklin Pierce School of Law. Students in the program can begin practicing law in New Hampshire without taking the bar.

Here’s how it works, according to the school: “Students are accepted into the program prior to their second year of law school and discover first-hand what it takes to succeed in today’s legal marketplace. They hone their skills in both simulated and real settings — counseling clients, working with practicing lawyers, taking depositions, appearing before judges, negotiating, mediating, drafting business documents — while creating portfolios of written and oral work for bar examiners to assess every semester.”

On the day before they graduate, those who are approved are sworn in. They can begin working immediately.

Another criticism of the bar exam is that law students have to wait several months after graduation to take it, and that can delay employment.

In an opinion piece written for the National Jurist website, D. Benjamin Barros, dean and professor of law at University of Toledo College of Law, estimated that the combined total of lost income for all graduates could be as high as $300 million a year. And that’s a big deal, given the amount of debt many students incur in law school.

A number of states allow qualifying students to take the February bar in their third year to avoid having to wait until July. That gives students a head start on their careers, advocates note. However, it can be difficult to juggle law school and bar exam prep at the same time.

 Jurisdictions should be open to alternatives, Berman said. “We have other methods to look at,” she noted. And pilot programs can be initiated, studied, assessed and improved to make sure alternatives to the bar are effective. 

She’s not advocating getting rid of the bar, but instead making it one of several paths to licensure. 

Right now, because bar exam success is so important to a school’s reputation and American Bar Association accreditation, some schools focus on teaching bar exam prep as students prepare to graduate. But that can come at the expense of other learning opportunities, such as clinical work and other practical training experience, Berman said. 

“You can free up law schools,” she said, if the road to licensure were more progressive.


Editor's note: this full story is availble in the January-February issue of The National Jurist. You can subscribe to the digital newsletters, for free, here.