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INSIGHT: Would Eliminating the Bar Exam Impact Malpractice Claims?

Sept. 9, 2020, 8:01 AM

The Covid-19 pandemic and the complicated scheduling and rescheduling of in-person and online state bar exams has prompted a resurgence of advocates who seek to waive the exam altogether, perhaps indefinitely. But how would this impact the legal profession and potential for malpractice claims?

Q: Arguably, the bar exams administered in all states are designed to ensure that only the most “critical-thinking minds” are admitted to what has always been considered an exclusive profession. Why wouldn’t we want to continue requiring this entrance exam?

Kiera Goral: Completely eliminating the exam probably isn’t in the best interest of the profession, but I don’t think the exam by itself necessarily identifies all the qualities of people who most deserve to practice law. For example, the test doesn’t do anything to identify character.

Also, there are excessive bar exam costs and expensive classes that favor those with means and act as a barrier to those without.

Courtney Curtis-Ives: The bar exams are imperfect, there’s no doubt about that. I’ve read that proponents for eradicating the bar exam point to the low percentage of malpractice-related claims against first or second-year lawyers, to support their position that, test or not, new lawyers are less likely to get sued and will eventually learn the ropes along the way.

In my view, that is an inappropriate lens for considering this issue. Most new lawyers, especially those who practice in firms, are not tasked with the responsibility of handling a file or regularly communicating with clients, and that is why they have less of a liability target on their backs.

Put another way, they don’t have the “opportunity” to commit malpractice. Thus, the more significant question is what the malpractice statistics will or would look like as to “non-bar-takers” if the exam is eliminated, at the more critical, later points in their careers.

We have very little, if any, empirical evidence of this right now. Legal malpractice claims could, in my view, be at an all-time high across the nation once we clear through this pandemic. Imperfect as the exam may be, don’t we want to continue to apply every “filter” at our disposal?

Q: Is there anything specific about the bar exam that you think adds value to attorneys in practice or to the profession in general?

Goral: Absolutely. Professional ethics is tested and, in my view, should be an area that is more heavily tested. At the very least, testing on ethics will serve to highlight the importance of practicing with professionalism. Every attorney will eventually find himself or herself in a position that presents the opportunity to act in an unethical or unprofessional manner.

If our expectations surrounding professional conduct aren’t front and center, from day one, it will become easier for young attorneys to forget the importance of this as they practice.

Curtis-Ives: Like many standardized tests, bar exams are only in small part about the substance of what is being tested. More importantly, the exam endeavors to be a test of aptitude and endurance. In that vein, it is indeed a barrier to entry, deliberately and perhaps rightly so.

The summer I took the bar exam in Pasadena, Calif., the state was experiencing rolling blackouts. The examiners started the first day of the test by announcing that if the power went out, and the room went pitch black, “you must keep writing!”

I’ll never forget the mix of adrenaline and fear I felt in that moment—the gut-twisting sensation we all get when we’re not sure exactly what will happen in any given situation. And guess what? That feeling is not all that different from when you start a jury trial, take a heated deposition, or argue an issue of first impression.

Q: If the bar exam is ever canceled for good, how would insurance rates or malpractice claims be impacted?

Goral: I don’t believe we’d see an increase in some of the more typical malpractice claims. Lawyers make mistakes, and eliminating the bar exam is not going to result in a greater number of missed filing deadlines for years to come.

What does concern me is a potential uptick in disciplinary proceedings if bar exams are canceled for good. Professional duties extend beyond zealous advocacy, and law school graduates need to have a strong understanding of what is expected of them, both personally and professionally. This could very well impact premiums or limits for disciplinary proceedings coverage.

Curtis-Ives: If the bar exam is ever canceled indefinitely, it will probably create an additional hurdle, at least initially, for lawyers who never took the exam and are sued for malpractice. It will be an underlying theme of the plaintiff’s case. Experts may make much ado of a lawyer who never took the bar in proffering opinions about whether the lawyer’s conduct fell below the standard of care.

Fair? Of course not! The lawyer’s alleged error or omission will probably have had nothing to do with whether that lawyer passed the bar exam or not, and any assertion to the contrary will be rank speculation. But this will be an issue whether we like it or not, and certainly something to consider in terms of weighing whether to continue administering the exam once the current pandemic-related restrictions subside.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Courtney Curtis-Ives is a partner at Kaufman Dolowich & Voluck LLP and co-chair of the firm’s Professional Liability Practice group. Her practice is devoted to representing lawyers in defense of malpractice cases, attorney-client fee disputes, and in connection with legal ethics issues.

Kiera Goral is assistant vice president, claims, for QBE North America’s alternative markets business. She manages a team of claims professionals handling claims against a wide variety of professionals, including lawyers.