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It’s hard enough to study for the bar exam, to make sure that you’re prepared as best you can be and to keep the stress at an acceptable level. But when you don’t know when the bar exam will be held, it’s enough to freak out bar takers because of the uncertainty. Lawyers live by deadlines, be they statutes of limitations, motion deadlines, trial dates, or anything in between. To have the bar exam date as a moving target, as it is in California right now, is unacceptable. Just as the courts tell attorneys that a trial date is “firm,” so should be the date for a bar exam. It’s only fair to the thousands of both first-time takers and repeaters.
In the latest iteration of “guess the date for the bar exam,” the California Supreme Court wrote a letter to the State Bar earlier this month. The letter said that now the bar exam could be held in early October, rather than the September dates previously considered. Why? The National Committee of Bar Examiners, of which the MBE is an essential part of the exam, has announced that there will be an “on-line deployable” version of the MBE on October 6.
California’s bar exam “cut score,” the second highest in the nation behind Delaware, has been a thorn in the side of law students, law professors, and deans for years. Now, the California Assembly Judiciary Committee has written to the state Supreme Court, urging it to rethink and reduce the cut score required for bar passage. The letter points out that racial minorities have been disadvantaged by the high cut score, and if the goal is to have lawyers in the state look like their clients, the bar is failing to achieve that goal.
While courts provide all manner of self-help tools, the Committee argues that such does not substitute for competent representation, especially in the family law courts where at least 70 percent of the litigants are unrepresented. That lack of representation deprives the parties of effective counsel and burdens the courts and opposing counsel, often making matters more arduous and drawn out than they need to be or should be.
The Committee suggests the cut score be reduced to 1388, even if only on an interim basis. Given the uncertainty about when (September? October?) the July bar will occur, the Committee also requested the 2020 class be permitted to practice in the interim “with appropriate oversight.” What would be “appropriate oversight?” What would be the standards for that? Who would be responsible for that oversight? Would “diploma privilege” fly in California?
Last month, the State Bar announced that it and the Supreme Court have formed a “blue ribbon” commission to look at the bar exam, its future, and the cut score. Its composition is to be determined, but based on my many years of looking at commissions and occasionally being on them (or task forces, whatever the term du jour might be), it’s going to take a while to arrive at recommendations, including whether California should adopt the UBE.
The future of the bar exam is not something that can be decided overnight, but in the meantime, as the Assembly Judiciary Committee pointed out in no uncertain terms, the bar exam as presently scored has an adverse impact on minorities, with black law students bringing up the rear over the past decade as admittees.
Other states are trying to figure out what to do about the July bar exam. Maryland is moving the summer bar to online.
Michigan and Indiana are also moving to online for the summer bar.
Other states are going their own ways for this year’s bar exam.
Already accepted in 36 states, now is the time for the rest of the states (hello, California) to drop their possessiveness about particular bar exams and accept the results of the Uniform Bar Exam, and to allow multijurisdictional practice without having to sit for that particular state’s bar or attorney’s exam. Given the nature of legal practice today and the presence of remote lawyering, making attorneys sit for each state’s bar exam is nonsense.
The pandemic has hastened the demise of practicing law within the four corners of the state. Should the unauthorized practice have relevance any more to lawyers who tiptoe (or not) across state lines? And what about reciprocity?
Yes, I am well aware that there are way too many lawyers, but only in certain locations and certain practices, but not in “legal deserts” so to speak, where just like food deserts, the need is great, but the supply is not. How do we meet that need? The status quo doesn’t work anymore, not that it has for a long time. As procrastinators (don’t tell me you’re not when you wait until the very last minute to file a brief, claiming you’re perfecting it — Oh, please! — we have preferred to kick the can down the road. But the can, which is now the size of a boulder, is in front of us, and the road has ended.
Those of us who have had bar exam horror stories, and I would guess that’s just about all of us now need to STFU and quit whining about our purported dreadful experiences. The class of 2020 has it all over us and not in a good way. This is a situation not of their making, and yet they’re the ones who must endure it.
A correction aka whoops: an alert reader pointed out that in last week’s column, I placed Judge Amalya Kearse on the Sixth Circuit, rather than the Second. Thanks for the correction and my apologies to Judge Kearse.
Jill 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.