Bar Exams, Small Law Firms, Solo Practitioners

Do Practicing Lawyers Want To Keep The Current Bar Exam Pass Scores For Selfish Reasons?

If practitioners want to maintain the status quo, they should explain how doing so will benefit the public.

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As bar exam pass rates continue to fall nationwide, law schools are calling for the pass scores to be lowered. To no one’s surprise, just about every practicing attorney wants the pass scores to stay the same, while test takers want the pass scores lowered.

But whenever practitioners discuss this issue, they usually give the same reasons for maintaining the current pass score. And these reasons seem to be focused more on self-interest and less on the public good.

There are already too many attorneys. These people are afraid that making the bar exam easier will mean more attorneys will be admitted. Then they will have to charge less in order to compete. But to the public who sees lawyers making an average of $115,820 per year by billing them hundreds of dollars per hour, lower prices would be a good thing.

Generally, the market will deal with the oversupply problem. I’m sure we all know at least one “recovering attorney” who is doing something else. They are probably happier too.

So if you are going to complain about oversupply, point out how it harms the public.  Otherwise, it just looks like turf protecting.

More incompetent attorneys will be practicing. Practicing attorneys publicly say that they want to maintain the status quo by using euphemisms like “ensuring minimum competency” or “protecting the integrity of the profession.” But in the legal locker room, a lot of them use words like idiots, weak, and entitled to describe recent law school graduates and complain about what will happen when they are admitted due to lower standards.

I also noticed that when most of them use the “admitting dumber attorneys” argument, they don’t elaborate on how it negatively impacts the profession or the public. They just assume that lowering pass scores somehow means lower quality attorneys. In fact, some litigators openly brag about taking advantage of their inexperience and ineptitude and advise others to the same.

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Judges may be able to objectively see the negative effects of lowering pass scores. One California judge complained that lawyers lacked understanding of basic procedural rules and black letter law. The judge also noticed that lawyers were failing to show up for court, were filing papers incorrectly, and could not even write a coherent or persuasive sentence.

But how many of the judge’s grievances can be attributable to the bar exam? Most bar examinations don’t test drafting pleadings and motions. Some don’t even test their own state’s laws!

Finally, is an attorney who is a good test taker necessarily a better one? It reminds me of a joke I heard concerning another mandatory examination:

What do you call someone who gets a perfect score on the MPRE? A purely moral attorney? Or one who can skirt their way around ethics rules to their advantage?

So if practitioners are concerned about admitting less-competent attorneys, they will need to prove how attorneys with lower bar passage scores will negatively affect the public.

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“If I had to suffer, then so should everybody else.“ I think this is the real reason why most practicing attorneys do not want to lower bar pass scores. It wouldn’t be fair to them.

This is where I hear many stories of struggle from test takers sacrificing summers, paying a lot of money for bar exam review courses, walking uphill in the summer heat (both ways), and dealing with anxiety and fear as exam day drew near. Some even worked while studying because they have to support themselves or others.

At the time, they were frustrated and fearful, but when they look back, they see their efforts as something to be proud of.

But does it have to be this way? The reason why every test taker spends their entire summer studying is because the bar exam is given only twice every year. Failing the exam has severe consequences: Spending more time studying and possibly losing their job. Lowering the pass score is probably not going to reduce their study time or their anxiety.

And why does everyone have to “suffer”? Suffering does not build character and resilience. In fact, this may explain why some lawyers are so bitter and are reluctant to change. The bar exam was designed to test knowledge of basic legal concepts. Not endurance and grit.

Reforming the bar exam should always be open to discussion. But right now, we all know that law schools are trying to reduce the pass scores in order to remedy the falling bar passage rate that is likely to be the new normal. But if practitioners want to maintain the current pass rates, they need to explain in detail how doing so will protect the public instead of making arguments that sound selfish, condescending, and protectionist.

Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached by email at sachimalbe@excite.com and via Twitter: @ShanonAchimalbe.

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