Law Schools

Failed The Bar Exam? That May Only Be The Beginning Of Your Professional Troubles

Maybe there should be a cap on the number of times you can take the bar exam.

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As if law school graduates studying for the bar exam needed more stress in their lives, there’s an article in St. John’s Law Review (and featured on TaxProf Blog), that finds the more times it takes for a lawyer to pass the bar exam the more likely they are to disciplined for ethical violations.

The article, by Jeffrey S. Kinsler, former Founding Dean of Belmont University College of Law and currently a law professor there, posits that the same characteristics that cause folks to fail the bar exam are the same that lead to them getting into professional trouble once they are finally admitted to the bar:

This Article’s theses are premised on two suppositions. First, the primary causes of attorney discipline are nondiligence and incompetence. Similarly, the primary causes of bar exam failure are “poor study habits, weak academic skill development, or low intellectual functioning . . . .” Thus, it is reasonable to assume that lawyers who fail the bar exam are more likely to be disciplined as attorneys.

Second, there is statistical and anecdotal evidence linking the failure of entrance exams and subsequent professional discipline in other occupations. It is plausible, therefore, that such a link exists in the legal profession.

And Kinsler found the data he was looking for. Looking at results from Tennessee’s bar exam between 2005 and 2014, Kinsler found lawyers taking the bar exam once had a discipline rate per 1,000 lawyers of 8.64. That number jumped to 15.77 looking at lawyers who had to take the bar twice, and for lawyers who took the bar exam 4 or more times in order to pass, the discipline rate was a whopping 26.32. Kinsler also calculated the rates for severe discipline (suspension or disbarment) and those disciplined for client neglect and/or incompetence and found those that took the bar more frequently were more likely to find themselves in hot water:

[T]his Article promised to substantiate two theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including noncommunication—and/or incompetence. With regard to the first thesis, the evidence in this Article establishes a link between bar failure—particularly repeated failure—and subsequent professional discipline. As to the second thesis, the evidence in this Article shows that lawyers who fail the bar exam are not only more likely to be disciplined, but that they have an even greater likelihood of being disciplined for client neglect and/or incompetence. In addition, this Article demonstrates that lawyers who fail the bar exam are more likely to face severe discipline—disbarment or suspension—than lawyers who pass the bar exam on the first attempt.

Based on these results, Kinsler advocates for a nationwide limit on the number of times anyone can take the bar exam, settling on three as the magic number of attempts at passing. A number of jurisdictions already set a cap on taking the bar exam, but Kinsler thinks all jurisdictions should adopt some sort of a limit. Which seems pretty harsh to me. After sinking $150,000+ on a legal education, it seems unfair to impose an arbitrary limit on the number of times you can try your hand at the bar exam just because some of the people who also failed may go on to do unethical things.

But even without a statutory cap on the number of times you can take the bar exam, this study shows just how important studying for the bar exam can be.

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headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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