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ABA Disciplinary Study Throws Water On 'Bar Exam Protects The Public' Argument

It's the number one argument of bar examiners... and there's nothing behind it.

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The defenders of the bar exam always fall back on the same claim: it’s necessary to protect the public. Any alternative to forcing applicants to take a two-day subject-matter exam covering practice areas the applicants will never, ever practice is dismissed as tantamount to unleashing incompetent hucksters on an unsuspecting public.

It’s a bad argument and there are much better ways of regulating entry into the profession than throwing up our hands on law school or post-licensing education and banking everything on one 48-hour exam period, but is there any truth at all to the claim that the bar exam — as opposed to Law School Professionalism requirements, the MPRE, Character & Fitness Review, and CLE Ethics credits — is responsible for keeping malpractice in check? The answer is hard to nail down but… no.

A definitive answer is hard to suss out because the bar exam is so ubiquitous that it’s hard to find a control group. That jurisdictions have increasingly homogenized the exam — a laudable effort designed to provide license portability — only makes this more difficult. But this morning, I noticed this tweet:

Interesting! The report, the 2018 Survey on Lawyer Discipline Systems, covers a lot of ground when it comes to legal ethics, but using it for insights into the difference between the country’s oldest diploma privilege jurisdiction and other locales is an intriguing experiment.

Per the survey, Wisconsin had 21,000 attorneys with active licenses in 2018 while Louisiana had 22,377. Yet Wisconsin received 1,660 disciplinary complaints compared to Louisiana’s 2,528. Colorado — a state that has taken a notoriously aggressive stance against diploma privilege this cycle — had a complaint per lawyer ratio of 13 percent, so maybe that exam isn’t doing much for them!

In the interest of fairness, Tennessee boasted 22,956 attorneys and 1,360 complaints, so maybe it’s just that Louisiana is uniquely corrupt… which probably isn’t a huge stretch. But even compared to Tennessee, we’re looking at a difference in complaints/attorney of 2 percent which amounts to noise.

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Because the point isn’t whether or not Wisconsin had a few more or a few fewer complaints, but that there’s nothing about this diploma privilege jurisdiction that puts it statistically out of whack with other states. The opponents of bar licensure reform hinge their entire argument on this claim and to put this much weight on a single argument they should be able to point to a massive breakdown in Wisconsin’s professional responsibility.

But they just… can’t. There’s nothing there. If the bar exam forged a unique bulwark against harm to the public, Wisconsin should be a blip rather than squarely in the 5-10 percent range of most states. One would assume they’d have numbers more like Arizona or Nevada — bar exam states — sitting at around 16 percent. At the very least you’d expect them to be Colorado.

But they aren’t. Wisconsin’s practice of diploma privilege-based licensing yields about the same number of complaints as the states with bar exams. It’s almost as if not being able to recall obscure doctrines in a test setting has less bearing on the threat to the public than a lawyer’s own avarice or long-term work ethic — two traits not tested by the bar exam.

Imagine that!

2018 Survey on Lawyer Discipline Systems (S.O.L.D.) [ABA]

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Earlier: NY Moves To Online Exam… For Now

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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