Why Lawyers Should Care About the California Bar Exam

The opinions in the below editorial do not necessarily reflect the views of the SCBA or the Editors of the Sacramento Lawyer magazine. The Editors welcome the submission of articles reflecting other views on this important topic in a future issue.

WHY LAWYERS SHOULD CARE ABOUT THE CALIFORNIA BAR

EXAM By Karen M. Goodman

Karen Goodman is the principal of Goodman Law Corporation, served as Chair of the Committee of Bar Examiners and was a member of the California State Bar Board of Trustees. She is currently Vice Chair of the CLA Ethics Committee. She is a certified specialist in Legal Malpractice Law.

The COVID-19 pandemic has created unwanted changes for everyone. In the case of the state bar exam, it has highlighted a bad situation and made it worse. And the State Bar, beset on all sides by interested parties who for years have pushed for modifications that suit their own needs, has made one bad decision after another leading up to the next exam administration this October.

Should the exam we all had to pass in order to be certified as attorneys test professional responsibility? They say no.

Should it test minimum competence to practice law in our state? The Bar doesn’t even have a definition of minimum competence. In fact, encouraged by some of California’s leading law school deans, they are leaning toward use of a maximum incompetence standard.

Should the minimum passing score be downgraded? The State Bar has been working toward that for years.

Now the pandemic has prompted the Supreme Court to approve an on-line version of the Bar Exam for this Fall. With the State Bar’s urging, the Court is now considering abandoning the California focused one day testing consisting of essays and practical skills in favor of the generic exam offered by the National Conference of Bar Examiners (known as the Uniform Bar Exam). If you ask the State Bar where public protection should fall in the equation, it appears to have been forgotten.

The Bar Exam has been a gauntlet that must be navigated before a lawyer can obtain a license to practice law. In California, the Bar Exam has been attacked by politicians, Law Schools Deans, unsuccessful applicants and more recently, State Bar executives. The Bar Exam has changed dramatically since the 3 days of essays to the now trimmed down 2-day exam. Now, with the COVID-19 pandemic prompting the Supreme Court to move the July 2020 bar exam to October and have it exclusively “on line,” it is clear that the Bar’s admission standards are under attack.

Since I served as chair of the Committee of Bar Examiners in 2016-2017, the self-interested stakeholders have been clamoring to weaken admission standards under the false guise of promoting diversity. Every time the test results hit a new low, the cries get louder that the Bar Exam is unfair, denies “good people” the privilege to become a lawyer and undermines access to justice for poor communities. This was illuminated most recently when the results of the February 2020 bar exam were published

in May 2020. Reportedly, only 26.8% of the test takers passed the February bar exam 1 . A low pass rate does not mean that the Bar Exam is too hard; but it has increased the loud cries to make it easier. How lowering the admissions standards promotes public protection is doubtful.

The State Bar continues to appease the stakeholders who ignore that the pass rate has been under 50% since 2014. In essence, the goal post has remained in the same place, but there are a lower number of applicants able to kick the ball through the goal posts. So, the Bar is attempting to “move up the goal posts” so that less qualified applicants can become licensed lawyers. That should be scary to everyone associated with the legal profession.

The Bar Exam is supposed to test minimum competence of an entry level attorney. This is not a difficult concept and is generally considered to be defined as follows: A minimally competent applicant will have basic knowledge and understanding of core subject matters in law and legal practices, fundamental principles and theories of law, as well as their limitation and relationships to each other. The applicant will be able to: 1) distinguish relevant from irrelevant information of critical importance to the underlying issues, assess the reliability of facts and determine the need for additional facts; 2) analyze the basic legal rules and important principles applicable to a problem; 3) apply elemental problem solving skills to diagnose a problem and generate a common alternative solution; 4) formulate conclusions with limited justification, and communicate effectively the key issues and solutions. 2

The State Bar has attempted to ignore the “minimum competence” requirements in its efforts to appease many of its conflicted stakeholders, including Law School deans. 3 The California Attorney Practice Analysis (CAPA) working group defined “minimum competence” as the “le

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gal knowledge, competency areas, and professional skills required for the entry-level practice of law and the effective, ethical representation of clients.” 4 The Law School Deans are fully aware of their students’ shortcomings but because of the economic need to fill seats, law schools have diluted admissions standards and softened graduation requirements. What the Bar leaders overlook is that watering down the Bar Exam is contrary to public protection. Once the applicant passes the Bar Exam, he or she has a general license to practice law in California. Consumers assume that lawyers are competent to handle legal problems. This assumption is misplaced even for many who successfully pass the Bar Exam.

Unfortunately, what stakeholders refuse to admit is that many licensed applicants are not “minimally competent” under the well-established standard after they have spent 3-4 years in law school and invested many thousands of dollars in pursuit of legal education. Contrary to many legal educators’ claims, merely graduating from law school does not ensure “minimum competence.” This is particularly true in a state with 18 ABA accredited schools and another 23 “California accredited” law schools and another 18 unaccredited, “registered” law schools. The standards for admissions from school to school vary widely. The oversight—whether at the ABA or California State Bar level is suspect. The knowledge, skills and abilities of law students vary dramatically. A standard exam is necessary in order to ensure “minimum competence,” before those individuals can hold themselves out to practice law in the state of California.

I hear a lot of complaints that the California bar exam “cut score” is higher than New York and many other states. In fact, all but Delaware has a “lower cut score.” But California needs a meaningful bar exam since it permits applicants with non-traditional backgrounds to take the exam. A college degree is not required for California “accredited” or registered law schools. Law school isn’t even required. In fact, as Kim Kardashian is attempting to do, a person can simply “study with a lawyer” and sit for the Bar. The California State Bar set a cut score (the difference between passing and failing) at 1390, which is scaled with each exam to take into account differences in the exam from year to year. It is the equivalent of a “C student.” 5 When we invested countless hours in 2017 in the cut-line study, the report issued indicated that the current cut score appropriately measured minimum competence. 6 It could be set a little higher or a little lower, but there certainly isn’t any basis to conclude that the Bar Exam is “unfair,” or that dropping the cut score down to 1330 (New York standards) promotes the Bar’s mission of public protection. 7 In July, the Supreme Court announced it was reducing the cut score to 1390, citing "bar exam studies."

“Passing” incompetent lawyers hinders public protection because consumers won’t know that their lawyers are incompetent until it is too late. By the time the marketplace catches up with the “incompetent” lawyers, many consumers will be victimized by deficient lawyer work by the licensees who are not minimally competent. This is most certainly true since the Bar has failed to require any “practice ready” requirement for admission to become a lawyer.

The Bar Exam has been historically difficult, but that is not a bad thing. The Bar Exam requires preparation and diligence. It certainly could be improved, but it is not “unfair” to applicants. While the research has shown that women do better on the essay and practical skill portions of the exam than men, the converse is true for the MBE portion. Given the importance of “communication” as a critical competency for lawyers, it would make sense to include an “oral” component to the exam. However, that has proven impractical; particularly in California, which tests a large number of applicants two times a year.

The attack on the Bar Exam has focused on the Committee of Bar Examiners, the graders and the exam itself. None of these targets are “wrongdoers” in the story. The Committee of Bar Examiners was created by the California Legislature to work under the auspices of the Supreme Court to oversee the Bar Exam. However, over the past several years, significant inroads were made by the State Bar leadership to reduce the Committee’s role in overseeing the Bar Exam. When the State Bar Board of Trustees voted on May 15, 2020 to accept several reports, the Committee was largely excluded from active participation in any of the working groups that developed these reports. The Committee of Bar Examiners’ role has been surreptitiously replaced by secret working groups heavily influenced by biased stakeholders who want to reduce the standards for the Bar Exam.

This is perhaps best illuminated by the results of the CAPA working group, which was formed in 2018 and presented its report to the Board of Trustees on May 15, 2020. When I was on the Committee of Bar Examiners, I heard many Law School Deans complain the Bar tested on too many subjects. This working group was supposed to conduct an intensive analysis of the required competencies for a California lawyer. Despite the increased complexity of the legal world and the conclusions from the 2017 content validation study (which found the subjects tested to be appropriate for California applicants) 8 , the CAPA working group recommended reducing the number

of subject matters tested from 13 to 8. The CAPA working group recommended that Professional Responsibility be excluded from proposed tested subjects despite the Bar’s express mission of public protection. This was also in spite of the results of the surveys conducted in California and by the NCBE which ranked professional responsibility as the number one subject newly licensed lawyers had to master in their first 3 years of practice. 9 Also on the proposed cutting block now is family law, trusts and estates and business associations. All these subjects have been tested on the Bar Exam for years. All these California focused subjects are the frequent source of questions California consumers ask California lawyers. Even if the answer is to refer the consumer to a “specialist,” each California lawyer should have some basic knowledge of these areas even if not specifically practicing in them.

If minimum competence requires a basic knowledge of applicable law, including California subjects such as community property, then these subjects should be tested. If they are not tested, they won’t be taught. The sole beneficiaries of reducing the number of subject areas are the law schools who refuse to take responsibility for their relaxed admissions standards, “supportive” teaching methods (including the widespread abandonment of the Socratic method) and unwillingness to fail students who are unlikely to ever achieve minimum competence.

Moving to an online exam for the fall 2020 Bar Exam is not going to do anything to assure us that successful applicants are minimally competent. This seems to simply be moving the Bar Exam down the road to a mere “check the box” to obtain a license. The Department of Consumer Affairs’ evaluation of the Bar Exam reported that the California Bar Exam meets acceptable standards for testing and grading. 10 However, one of the required standards, is that all applicants are comparably treated the same way for the exam. 11 That can’t occur when each applicant is taking the test in a different environment. Moreover, the testing environment needs to provide “reasonable” comfort for the applicants with minimal distractions. 12 What we have learned from the “Shelter-in-Place” environment in 2020 is that it is very easy to become distracted when working from home. There isn’t any reason why the Bar couldn’t have located either more testing facilities or larger facilities so that social distancing guidelines could be observed.

Finally, simply resorting to the Uniform Bar Exam doesn’t answer the question of how to determine whether an applicant is minimally competent. The UBE tests on the same 7 broad subjects that the MBE does. It doesn’t address the many California subjects that are critical for a California lawyer. If each state controls its admissions process and each state has their own substantive laws, there must be testing on California specific subjects. New York went to the UBE a few years ago, but reportedly is reconsidering it due to a perception that the Bar Exam has become too watered down and does not test minimum competence.

In order to promote public protection, every California lawyer needs to be concerned about the future lawyers in our state. Lowering standards for admission does not advance the future of the legal profession. We need our lawyers to be critical thinkers and good communicators. Those future lawyers will be our associates, partners and eventual successors. They will represent our clients, our parents, our siblings and us. They will have the ability to transform lives—for good or bad. We need them to start their careers as “minimally competent.” We cannot assume that merely because they have a law degree they should be licensed to practice law.

1

2 5/8/20 State Bar Press Release where Acting Executive Director Donna Hershowitz announced: “Meanwhile, we are moving forward on both near-term and long-term efforts that will affect the future of the bar exam.”

Chad W. Buckendahl, Phd, ASC Ventures, Standard Setting Workshop, California State Bar 5/17.

3

4 For the 2017 State Bar Standard Setting study, “minimum competence” was defined as an applicant being “able to demonstrate the following at a level that shows meaningful knowledge, skill and legal reasoning ability, but will likely also provide responses that reveal incompleteness, significant imperfection, and errors of both fact and judgment.” (Buckendahl, Final report, Conducting a Standard Setting Study for the California State Bar Exam (7/28/17), p. 11)

4/20/20 Report, The Practice of Law in California: Findings from the California Attorney Practice Analysis, p. 13.

5

6 Klein, 2011 Report, History of General Bar Examination Structure and Pass/Fail Rules.

Buckendahl, Final Report, Conducting a Standard Setting Study for the California Bar Exam, p. 4.

7 Buckendahl, Final Report, Conducting a Standard Setting Study for the California Bar Exam, p. 4.

8 Buckendahl, (10/4/17) Final Report, Conducting a Content Validation Study for the California Bar Exam, p. 21 (finding the current bar exam measures important knowledge, skills and abilities consistent with the expectations of newly licensed lawyers).

9 NCBE (3/20) Testing Task Force Phase 2 Report, p. 22).

10 DCA (1/20) Review of the California Bar

Examination Administration and Associated

Components, p. 17.

11 American Education Research Association (2014) Standards for Educational and Psychological Testing, 3.4.

12 Standards for Educational and Psychological

Testing, 6.4.