Big Law Associates Who Fail the Bar. What Happens to Them?

July 20, 2016, 7:35 PM

Law graduates who have accepted Big Law positions will take one of the biggest tests of their life next week — the bar exam, beginning July 26. But what happens if they fail?

Do they still keep their jobs?

We found that it wouldn’t be the end of the world: Several firm leaders and communications people at large U.S. law firms said they have policies allowing first-years a second chance at passing the bar. So it’s not a hard up-or-out policy, although many said it is rare for one of their associates to fail the bar at all.

Contacted by Big Law Business on Wednesday, Larren Nashelsky, chair of Morrison & Foerster, wrote us his firm’s policy in an email:

It is the Firm’s policy to be supportive of attorneys who do not pass the bar exam on the first try by permitting them to take the bar exam a second time in accordance with the Firm’s time off and reimbursement policies for first-time bar takers, subject, however, to the attorney otherwise satisfactorily progressing and the needs of the Department or Practice Group. In the event an attorney does not pass the bar exam on the second try, special approval by the Department and Practice Group will be needed for the attorney to take the exam for the third time.

Jeremy Roth, one of the co-managing director’s of Littler Mendelson, said that he himself failed the bar the first time in 1986 as a young law graduate in San Diego, working at the firm Higgs Fletcher & Mack.

“It was unpleasant with a Capital U,” recalled Roth. “In hindsight, I would have done things a little differently and not go to Scotland to play golf and instead, study for the bar.”

“I always call those people who fail the first time and say, ‘Hey, it’s not the end of the world.”

Littler’s policy is that first-time failures get a “do-over,” while second-time failures are treated on a “case-by-case basis.”

At McGuireWoods, a spokesman said that the firm has a one-year policy.

“You have a year from the time you join the firm to pass the bar and get licensed,” said the spokesman. “If you don’t pass it the first time, you have a year to make it right. There have been one or two exceptions based on rare or extenuating circumstances, but they are rare.”

Meanwhile, over at Baker & McKenzie, a spokesman said that the firm is lenient up to a point.

In the event that an incoming first year associate does not pass the bar, s/he may be able to stay on at the Firm and re-take the bar at the next exam date. This is at the discretion of the practice chair. Individual circumstances vary, but my understanding is generally people get a second chance. Anything beyond that is also at the discretion of the practice chair. I’m told that this approach is fairly consistent with the policies at other firms.

Last year’s results didn’t look the best for test-takers, with passage rates down in multiple states. In New York State, for instance, about 61 percent of the 10,671 examinees passed the July exam — down from 65 percent the previous year and the worst passage rate in more than a decade .

To be sure, law school graduates who have accepted prestigious law firm jobs don’t have as poor failure rates. Still, it has some of our readers getting a little anxious.

Here are some other responses we received:

Andrew Glincher, CEO of Nixon Peabody

It is our practice and within our sole discretion to be supportive of someone to re-take the exam. We appreciate that everyone can have a bad day or experience, and in some jurisdictions (ie. California) the first time bar passage rate can be much lower. Luckily, we have had a very small number of these over the last 10 years compared to the number of entry level associates we have hired.

Carter Phillips, chair of Sidley Austin

I know that someone who fails once gets to stay. I cannot frankly remember anyone failing it twice so I don’t know what would happen. I don’t know of any rule that we have and all of our rules have exceptions anyway.

Bill Gelnaw, co-managing partner, Choate Hall & Stewart

We do not have a formal policy on this. It is extremely rare that one of our first-years does not pass the bar.

On the rare occasions when this has happened in the past, the new associate who did not pass the first time would take the exam again the next time it is offered, and would continue with the Firm during that period (consistent with applicable rules). In the highly unlikely event that the associate did not pass the second time, we would help him or her to find another position outside the Firm.

Willkie Farr & Gallagher spokesperson

Due to our very high pass rate, we would only address the failure of someone to pass the bar on a case-to-case basis.

Reed Smith spokesperson

At Reed Smith, if a First Year doesn’t pass the bar exam, we give them a second opportunity to take the exam in February of the following year. First Years not passing on the first time stay with the firm and we have them indicate on their email signatures that they have yet to be admitted in whatever state they are working in and they do not receive business cards until they do pass.

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In 2012, Bloomberg Law visited NYC’s Javits Center and talked to bar exam takers about their experiences.

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