As the nation grapples with the coronavirus pandemic, changes to our way of life are inevitable. With regard to this year’s bar exams, the American Bar Association has asked states nationwide to consider canceling bar exams, with some voices advocating the bar exam’s permanent abolition in favor of a “diploma privilege.”
This is hardly the first time the bar exam has come under fire. It is, after all, a monster of a test. But it’s one worth keeping.
Most importantly, the bar exam protects the public. Deregulation can be a good thing, but law is a markedly different profession. Lawyers shoulder enormous responsibility, with countless lives having been ruined by incompetent lawyers. Yet the skill set of a lawyer is easy for any garden variety conman to imitate; a handsome office and a few legal clichés is all it takes to fool more than a few people out of their hard-earned money.
Of course, bar exam opponents retort there is no empirical evidence showing the bar exam ensures attorney competence. That might be true, but the proffered takeaway—that the bar exam has no bearing on attorney competence—is nestled more in clever wordsmanship than reality.
Such empirical evidence is scant primarily for two reasons. First, nearly every practicing attorney has passed the bar exam, meaning there is no suitable control group from which meaningful conclusions about the bar exam may be responsibly drawn.
Indeed, Wisconsin is the only state with a standing diploma privilege, which permits law graduates meeting certain criteria to join the Wisconsin bar without sitting for the exam. But even Wisconsin’s diploma privilege imposes strict coursework and GPA requirements—time-tested performance metrics which happen to correlate strongly with bar passage rate.
Second, attorney competence can be an unwieldy concept to define and understand with nuance. Some legal observers have cited the prevalence of malpractice claims as a measure of a lawyer’s professional competence. But this is hardly reliable. A lawyer need not commit malpractice to be an ineffective lawyer; nor is the absence of a malpractice claim proof of a lawyer’s proficiency.
An inept attorney could be settling client disputes privately, practicing in an area of law in which malpractice lawsuits are infrequent, or, in many cases, simply unaware of his own incompetence, evading exposure by sheer luck.
Moreover, incompetence can go undetected for years. A mistake by an estate planning attorney, for example, may lay dormant for decades, impervious to the middling scrutiny afforded by neatly compartmentalized empirical research.
That said, useful inferences may be drawn from other occupational licensing schemes. The fatal 2009 crash of Colgan Air flight 3407, whose pilot had repeatedly failed flight tests throughout his career, brought tightened training requirements for airline pilots, resulting in a decade of fatality-free airline travel in the U.S.
In medicine, a 2017 study found that physicians with higher Medical Licensing Examination scores were less likely to receive a disciplinary action from their state medical boards. For engineers, a 2007 study found Fundamentals of Engineering Exam scores to be “reliable and valid indicators of minimal technical competency at the individual level.”
Legal Education Is Deteriorating
To be sure, a uniform standard is not necessarily synonymous with the bar exam. As diploma privilege advocates argue, law schools could ensure their graduates’ competence.
This might be persuasive were it not for the deteriorating state of legal education. A creeping impotence—including the steady erosion of the grading curve, the nascent fashionableness of canceling exams, and the blossoming of pseudo-legal electives in curricula—continues to undermine the caliber of education received by budding lawyers.
The regressive effects of this are well-documented. The national average score on the Multistate Bar Exam is currently the lowest on record—notwithstanding law schools’ belief they spend too much time on bar exam preparation—and surveys across the profession consistently show law schools do not prepare students for practice, with 95% of hiring attorneys believing today’s law graduates lack key practical skills.
“It is clear that law schools are failing, even worse than in preparation for bar admission, to adequately prepare their students for legal practice,” Robert Kuehn, a professor at Washington University School of Law, wrote in 2017. Mark Cohen, CEO of Legal Mosaic, observed law schools were out of touch with clients’ needs, citing “an absence of meaningful performance metrics and accountability” as partly to blame.
It’s unclear at best how this law school slump cuts in favor of attorney competence—or how it will improve when law schools are freed from the ABA’s scrutiny of their graduates’ bar passage rate.
Yet competence is precisely what future clients will expect, and where law schools fail, the bar exam mitigates damage by exposing and filling gaps in students’ domain knowledge; not out of devotion to the masochism of rote memorization, but to hone what may be described as “practice-ready” skills, including rapid information synthesis, methodical application of the law, and clear articulation of a soundly reasoned answer—all skills which the bar exam drills ruthlessly (albeit sometimes imperfectly).
None of this, of course, is to suggest the bar exam is beyond reproach; indeed, many in the profession have offered ideas for reform. But for the decision to seek qualified legal counsel to remain worth it, a firm professional standard must exist. The bar exam provides exactly that in a tough, but eminently manageable format. Keep it.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Thomas N. Wheatley is a judge advocate (JAG) in the U.S. Army, where he advises soldiers and commanders on a broad spectrum of legal issues.
The views expressed are those of the author and do not necessarily reflect the opinion of the U.S. Army.