Law Schools

Something's Gotta Give When It Comes To Diversity And Bar Exam Pass Rates

It's obvious that something needs to change, but what?

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Recent stories have confused me (no snide comments, please) as to what exactly law schools, bar examiners (at least here in the Golden State), and the ABA are doing to increase the profession’s diversity. There could well be a train wreck in the making.

First, California’s February 2019 bar exam pass rate has been released, and though it’s better than the February 2018 pass rate, the results are still discouraging. One headline said that seven out of ten test takers flunked. The February pass rate is traditionally lower since a lot of the examinees are repeaters, but a 31.4 percent pass rate is dismal. However, a young minority woman I know who failed last July passed this time. Yay!!!  I think she will be a star in her Biglaw firm.

Recent testimony before California’s Assembly Judiciary Committee decried the state’s high cut score, the second highest in the nation, just behind Delaware. The dean of the University of California Irvine School Of Law, L. Song Richardson, said that the high cut score is impeding efforts to diversify the profession here. Dean Richardson testified that the inability to practice (or the loss of jobs because new lawyers didn’t pass the bar) coupled with increasing student debt loan is adversely affecting the lawyer population in a state that is “minority majority.” Not even six months ago, the California Supreme Court declined to lower the cut score, presently at 144, despite impassioned pleas from a variety of law school deans and others.

At the same time, in-house counsel are saying that law firms need to do more to promote diversity within their firms. A report by a legal education provider, InHouse Focus, says that more than half of the in-house counsel surveyed said that law firms should be doing a better job of introducing diverse lawyers to their clients. Is that anything new? I don’t think so.

As a former senior in-house counsel involved in selecting outside counsel for matters, I am here to tell you that “suggesting” that outside counsel staff their matters with diverse lawyers is not the same as ordering off a menu. While the in-house lawyers may have their preferences, the business people may have theirs, and they are not usually the same. Additionally, especially in “bet the company” cases, the in-house counsel want to make sure that their tushies are covered, so they will choose the biggest, baddest, meanest peeps — almost always white men.

Diverse lawyers may be on the team, but unless the lawyers in the firm who are handling the case actively push diverse lawyer participation, it doesn’t happen. At least, it didn’t happen when I was in-house. However, for in-house lawyers to urge diversification in law firms is ironic, when it’s the in-house lawyers who can mandate those changes or take their business elsewhere.  InHouse Focus is pushing for more diversity in CLE presentations, at least. Hooray for that. I have yammered about the lack of diversity in CLE presentations. As an old lady lawyer, I have been jumping up and down about this particular issue for more than 25 years.

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Add to the dismal California bar exam results and the continuing diversity desert the recent news about the ABA revising its bar pass standards for law schools. The ABA Section on Legal Education and Admissions to the Bar has adopted a revision to law school accreditation (Standard 316) that is not going to go down easily with many law schools, especially here in California. The revision requires that at least 75 percent of a law school graduating class must pass the bar within two years of graduation.  Previously, the Standard had all kinds of wiggle room in that. Say goodbye to the wiggle room. It’s toast. Joe Patrice makes the right point about the revision to the Standard: it’s not the diversity of law schools, it’s the diversity of the profession that matters, and if there are underperforming law schools that can’t educate their students in ways so that they can pass the bar within two years of graduation, why should they exist? It may also force more schools to have instructors who can teach law students the law and how to think like lawyers, rather than pontificate on issues that 99 percent of the law students will never discuss with their clients or never need the knowledge. Do clients care about arcane knowledge? They want their problems resolved.

(Full disclosure: I am on the advisory board of Concord Law School at Purdue Global University, an online law school. I believe in the viability of online law schools as a way to educate lawyers who cannot afford tuition at a brick-and-mortar law school and/or work full time and/or live too far from such a law school. In a state like California, where distances are huge and we’re just under 40 million, online education provides a needed platform for those who truly want to be lawyers practicing “people law” and provide access to justice in communities very much underserved by lawyers. You can now take your elite noses out of the air.)

So, here we are: 1) the usual poor performance on the California February bar exam and the maintenance of California’s high cut score, at least for now, 2) the persistent lack of diversity in law firms coupled with the sometimes reluctance of in-house counsel to stick their necks out and mandate a diverse team on a case, and 3) the ABA revision to Standard 316.  As I said, I’m confused, and am I the only one who thinks that something’s gotta give?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 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 oldladylawyer@gmail.com.

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