Bar Exams

What's The Matter With California? Bar Exam Edition

Will the bar exam results to reignite debate about California’s cut score, the second highest in the nation?

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I know that much of the ATL readership is on the axis between New York and D.C., but I also know that lots of new lawyers want to live and work here in California. Look at all the recent graduates who take the California Bar every year, well, maybe that’s not such a good idea, given recent bar passage rates, especially the February exam results, which this year sunk to a new low. So, I am just waiting for the results to reignite debate about California’s cut score, the second highest in the nation.

Looking at results over the past decade and the steady decline is disheartening, but will lowering the cut score solve the lousy bar passage rate issue? Will that promote the State Bar’s stated mission of protection of the public from bad lawyering? 

Practicing lawyers have been against lowering the score, as was the state Supreme Court last year. It would seem that if everyone is so concerned about bad lawyering, then lowering the cut score would be counter-intuitive. The flip side is the access to justice issue, but would lowering the cut score really truly improve that access and its quality?

The bar is introducing, for the July exam, a “Productive Mindset Intervention Program” in hopes of boosting pass rates. Will that help? Too woo-woo? We’ll see.

Until now, there has been a California Judicial Council rule that has prohibited public access to judicial administrative records, barring the disclosure of the identity of any judicial officer who has settled a case against him (or her) for sexual harassment and/or discrimination.

The California Judicial Council is revising that rule, Rule 10-500 (f)(7), so that settlement agreements for sexual harassment and/or discrimination complaints against judicial officers that involve the use of public funds would be publicly disclosed pursuant to an official records request. Right now, that doesn’t happen, so judicial officers have been allowed to hide behind that rule.

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Going forward, the revised rule will not allow any name redaction of the judicial officer. Name redaction of complainants and/or witnesses or any other identifying information could be redacted. The revision to the rule has a “long arm,” make it retroactive to January 1, 2010. You should excuse the pun, or not, but judicial officers won’t be “above the law” in California, at least now on this basis.

Thanks to California Supreme Court Chief Justice Tani Cantil-Sakauye, who pushed for this change, and who has had her own #MeToo moments. 

I don’t know a woman lawyer who hasn’t had her own such moments. Being a dinosaur lawyer, I’ve had my share, but one that still rankles more than others is the one, forty years ago, of the then State Bar president at a State Bar committee meeting saying, in a patronizing, condescending tone that women don’t make good trial lawyers. This president was supposed to be representing all the lawyers in this state, not just men. Women lawyers have proven him dead wrong. I’d like to tell him that, but he’s taking a dirt nap.

I’ve written before about the various comings and goings and problems that seem to plague the State Bar of California. Now the Bar only handles admissions and discipline. The educational and other non-admission and non-disciplinary functions are housed in what is now called the California Lawyers Association.

The Bar has to go to the Legislature for its funding (e.g. the dues bill as it’s affectionately called), and there’s a provision in this year’s legislation (AB 3249) that would change the designation of its attorney population from member to “licensee,” obviously in keeping with the attitude toward lawyers these days that we are no different from other “licensees,” such as barbers, manicurists, pharmacists, personal property and real estate brokers and other assorted licensees.

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Perhaps no one else cares about this prospective change except me, but I think it’s just another diminution of what was once a respected profession and now it seems like it’s just a trade. What everyone seems to forget is that we lawyers don’t just represent clients, we are also officers of the court. Hopefully, the designation of us as “officers of the court” will remain. So, is law school today just another kind of trade school, albeit a ginormously expensive one? You tell me.

But wait, there’s more. The revolving door of the State Bar’s Chief Trial Counsel position continues revolving. The current Chief Trial Counsel, Steven Moawad, will not be going through the state Senate confirmation process. The incumbent can serve up to a year without undergoing confirmation. Stretching back for almost a decade now, the position has no less than three people who have boogied before enduring the confirmation process or who have left in the midst of executive management turmoil.

And last, but certainly not least, in what has been a lengthy, if not interminable (“are we there yet?” process), the state Supreme Court has approved revision of our Rules of Professional Conduct, which will become effective later this year.

One of the rules generating lots of interest, not just within the legal community, but the public is Rule 1.8.10 “Sexual Relations with Current Client.” Even consensual sex with a current client, unless it is the attorney’s spouse or registered domestic partner will be verboten as of November 1, unless the consensual sex began before representation. 

Heads up to any lawyer admitted to practice in California and who is in a consensual sexual relationship with a current client. You are going have to make a decision: marry, register as a domestic partnership, or ditch the consensual sexual relationship. Not necessarily appetizing alternatives for a variety of reasons.

Another rule change taking effect this fall is the ability of the State Bar to discipline attorneys for harassment, discrimination, or both, without any final determination in an administrative proceeding or a lawsuit. Previously, a final determination had been necessary.

Those of you contemplating practice in California, caveat emptor. I can see some U-Hauls turning around at the state line. For those of us already practicing here, you have until November 1, 2018. 

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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