Category Added in a WPeMatico Campaign
How Does Biglaw Stack Up On Climate Change: A look at the work they do.
Salary Rollbacks: At Perkins Coie.
Biglaw Is Tough For Pregnant Women: A true story.
NCBE Gets Desperate: With a meaningless poll.
Two legal industry veterans are today launching a company that they believe will change the paradigm for how law firms and legal departments purchase technology — and thereby turbocharge the adoption and use of innovative technologies throughout law practice and operations.
The company, LexFusion, will serve as the go-to-market representative of a collective of legal technology companies that it has thoroughly vetted and selected as best-in-breed in each company’s category. LexFusion will represent only one company per category, so that all the companies are complementary, not competitive.
On behalf of these companies, LexFusion will seek periodic meetings with corporate counsel and law firms to discuss the state of the legal innovation market and help them understand the products available to help them cut costs and increase profitability.
The overarching goal is to offer buyers an alternative to the endless stream of cold calls and emails they receive and help them focus on core products that have been vetted by LexFusion and tested in the industry.
LexFusion’s cofounders, Joe Borstein and Paul Stroka, are legal industry veterans who are well known within the industry and who have direct experience with many of these products. Both are former attorneys who worked together at Thomson Reuters Legal Managed Services (the former Pangea3), where Borstein was global director and Stroka was director of legal solutions. Both also went to Ernst & Young after it acquired the Pangea3 business last year.
Their reputation, credibility and relationships within the industry are part of the capital they are bringing to this company, believing it will form the basis of a trusted relationship with buyers that will lead to what Borstein describes as a “regular cadence” of meetings where they discuss with buyers the challenges they face and the solutions available to address them.
They are launching with a participating group of seven companies, each from a distinct and non-competitive segment of the legal technology market:
In addition, LexFusion has brought on Sanjay Kamlani as founding member of its advisory board. Kamlani is the cofounder and managing director of the 1991 Group who was formerly cofounder and co-CEO of Pangea3 and, before that, CFO and general counsel of pioneering outsourcing company Office Tiger.
“It’s a first-of-its-kind idea in terms of presenting a portfolio of legal tech businesses that is curated,” Kamlani told me earlier this week. “Joe and Paul have picked companies they think are great and that all complement each other. They can explain to a firm how they can address any of their needs.”
In an exclusive LawNext interview with Borstein and Basha Rubin, CEO of Priori Legal, recorded in advance of today’s announcement, we discussed the company and its mission.
“Think of LexFusion as a collective of best-in-class legal innovation companies representing most – and hopefully, at some point, all – of the mature, ready-for-action solutions for corporate counsel and law firms,” Borstein said.
Basha Rubin
If you think of these companies as arrayed around a circle, Borstein said, LexFusion is an engine in the middle that is uniting these services and technologies as a collective, of a sort.
“We are going to be able to walk into corporate counsel and law firms and say, ‘We represent the best of what’s out there in virtually every category that you need. Let’s talk through where you are now in your lifecycle, your maturity, and think about things you need to get to that next step, and think about pre-vetted, excellent solutions that you can move forward with tomorrow,’” Borstein said.
In the LawNext episode, I asked Rubin why she wanted to be involved in this venture. A major reason, she said, was her respect for Borstein’s and Stroka’s knowledge of the legal innovation market and landscape.
“They’ve been involved in legal innovation for a decade, and really took the time to understand the overall landscape of the different kinds of technologies that Fortune 500 and Am Law 200 firms are purchasing,” Rubin said.
She also said that Borstein and Stroka truly did their due diligence in evaluating and choosing the companies to participate, reviewing them in detail and developing a deep understanding of their value propositions.
“So I felt like the opportunity to both work with Paul and Joe and be part of a consortium of other technology companies who were pushing innovation forward was too good of an opportunity to pass up,” Rubin said.
In a separate interview, I spoke with Varun Mehta, CEO of Factor, another of the participating companies, who said that he believes the buying process in legal has long been broken and that LexFusion offers an opportunity to fix it.
“What LexFusion is doing really well is building a trusted community – a trusted community where it is bringing together a network of folks in the legal community that truly are interested in how things can be done better, in a process that feels more natural to how lawyers are used to buying things,” Mehta said.
Because GC and law firm partners are busy and inundated with pitches, it is difficult for them to separate the wheat from the chaff in legal technology, Mehta said. That is why they continue to rely heavily on advice and suggestions from people they trust. LexFusion is an opportunity to have those kinds of conversations built around foundations of trust, he believes.
“I see this as bigger than a business development engine,” Mehta said. “I see it as an opportunity to create a truly defined network of people who want to change things in legal.”
I spoke also with Seelin Naidoo, CEO of Intelliteach, who told me that he is participating, in part, because he believes LexFusion’s approach will be successful in bringing the companies it represents to the attention of buyers.
“We have a tremendous solution set,” Naidoo said. “We have a lead position in the market for every solution we have. So we have the recipe, but our biggest challenge is gaining access to the right place with the right people. When we can get in front of the right people, our solutions sell themselves.”
Ninety percent of Intelliteach’s revenue is from Am Law 200 firms, Naidoo said, but because of COVID-19, many firms are struggling to find the time to talk with outside vendors. Many are also reluctant to implement major changes in their technology and services until the outcome of the pandemic is better known.
He was impressed, he said, that Borstein and Stroka invested a lot of time in learning about his company and vetting it in the marketplace. “They’ve taken the time to understand how we position our solutions.”
I asked Borstein whether this model of representing a hand-picked collective of companies could have the effect of stifling competition, particularly from fledgling startups trying to gain footholds in the marketplace.
He believes the opposite is true, that his model will foster development of the best and most-innovative ideas. He said he will continue to listen to his customers and watch the market and continually assess whether to bring on other companies as part of LexFusion.
Rubin of Priory Legal agreed. “The pie is getting bigger. This creates a rising tide for all of us in the innovation community and at legal departments and at law firms. …
“I think it’s a really exciting time – a watershed really – in innovation becoming central to the practice of law rather than an afterthought.”
Next week.
Monday and Tuesday.
October 5 and 6 will be the delayed California Bar Exam.
There will be online bar exams in other states, too, but I’ll talk about my state, currently burning to a crisp in various locations. Approximately 9,600 will take the test remotely, including 462 remote test takers who were granted accommodations related to their disabilities. Four hundred forty-three test takers, including 195 test takers who were granted accommodations due to their disabilities, will take the test in person.
Does anyone think that this two-day exam, online for most test takers, will go off without a single snafu? I don’t. Based upon what I’ve read to date, I just don’t think it’ll be a smooth ride. As one example, the bar has hired a crisis management team to answer inquiries from bar takers. I don’t think that bodes well.
Sympathies to the 2020 law school graduates who have suffered over these past seven months: no graduation festivities, exam grading issues, looming student debt (payments of which are to start shortly), worry about the virus, worry about job opportunities, and then considerable and continued confusion about “whither the bar exam?” Is it on or is it off? If on, then when? In person or online? How will it be administered? What about those who need accommodations? Must they then take it in person and risk exposure to the virus?
These are all real life-and-death questions for a cohort that only wants to pass the bar and pick up the pieces of their virus-influenced lives. The FAQs for in-person testing have one ridiculous provision, which is that the test taker can only bring one mask into the secured testing area per session. What’s wrong with having an extra? What if that mask flunks inspection for whatever reason? Then what? If the one mask is subject to inspection, then how difficult would it be to inspect more than one? I can envision a scenario where a test-taker sneezes into the mask during the session that freaks out those socially distanced around him. Must that test taker wear that germy mask for the balance of the session? According to the State Bar, the answer is yes. Not a comforting thought.
Only the CBX examiners could come up with a 21-page October exam FAQ. If there’s a problem with connectivity, the examinee is to call ExamSoft tech support forthwith. See answer to FAQ 12. How many times have you called tech support and been helped right away? I’m just asking …
There is a whole section of FAQs about the integrity of the bar exam, but those questions go to the integrity of the examinee and not to the exam itself. So there are questions about what happens if there’s a power failure (and given the persistent wildfires here in California, power outages are always a possibility), whether an examinee can take medicine into the examination room and water to wash it down (no), whether one can take a cushion or pillow into the exam room (yes, without a cover), concern about ExamSoft access to examinees’ biometric data.
I didn’t see any FAQs about exam integrity and the possibility of cheating by hacking. With testing across the country next week, is there any concern about that?
According to Joe Patrice’s post, there is a real possibility of cheating by hacking, especially given how the exams are going to be distributed. Several enterprising hackers are already offering their wares that would allow examinees to cheat.
How could this happen? ExamSoft sends the exams in advance to the examinee’s computer and only decrypts it at the time of the exam. So, those exam questions are already lurking somewhere on the laptop only awaiting the metaphorical starter flag. Is the code of conduct strong enough to preclude hacking? If so, as Joe points out, then what are the reasons for no medicine and no water (among the prohibitions) in the exam room? Is there any pill large enough to write on?
Can the validity and integrity of the bar exam be trusted if examinees can’t be trusted with medication in the exam room? And let’s not even discuss that some examinees who need reasonable accommodations can’t get them in an online environment and so will be forced to take the exam in person. The purpose of the online exam was to minimize the risk of the spread of the virus; now those who may be most at risk because they are immuno-compromised must put themselves most at risk.
A magistrate judge for the U.S. District Court in San Francisco has just denied the motion of several disabled bar examinees, already granted reasonable in-person accommodations under the ADA, for a preliminary injunction, arguing that the ADA requires that these plaintiffs be allowed to take the exam remotely. The court disagreed, finding that for the October 2020 bar, “the proposed accommodations would fundamentally change, disrupt, and burden the State Bar’s administration of the exam.”
And now for my familiar admonition: Do NOT discuss your answers with anyone. And especially steer clear of anyone who brims with overconfidence. You have no idea whether someone else is right or you are, and the last thing you need right now is to perseverate. Kick back in your quarantine environment, stop wondering about diploma privilege, and think about the future. With any luck, it should be right around the corner.
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.
A Private Placement Memorandum, or “PPM,” is a disclosure document often used in connection with a private offering of securities. It contains a compilation of information about the company issuing the securities, the terms of the securities, and the risks of investing in those securities. This article explains the legal background underlying why a PPM is commonly used and overviews what is typically included in a PPM.
Put simply, a PPM is used to inform potential investors about an offering of securities. The amount of disclosures included in a disclosure document like a PPM varies among private companies that are selling securities with some companies including a very detailed PPM to others choosing not to include any formal disclosure document to their investors. How does a business owner seeking to raise capital or a company officer involved in a securities offering know if the company, or “issuer,” should be distributing a PPM to potential investors? To answer this question, let’s first consider the legal background underlying why PPMs have become common practice for issuers.
The Securities Act of 1933 (the “Securities Act”) governs securities offerings and requires that all offerings of securities be registered with the Securities and Exchange Commission (“SEC”) or meet the requirements of a registration exemption. One of the most commonly used registration exemptions is Section 4(a)(2) of the Securities Act, which exempts those offerings which do not involve a “public offering.” Offerings that rely on Section 4(a)(2) are commonly referred to as “private placements” since they are intended to not involve a “public offering” (hence the name Private Placement Memorandum). Registering an offering with the SEC is an expensive and lengthy process and therefore, private issuers often go to great lengths to fit under the Section 4(a)(2) exemption.
There is a lot of guidance from the SEC on what is and is not considered a private offering of securities. However, the spirit of this guidance revolves around accurate disclosures to potential investors, with the degree of those disclosures being on a spectrum: less sophisticated investors needing more disclosures and more sophisticated investors needing less disclosures. Furthermore, securities laws require those disclosures to be accurate and not misleading. Since a PPM formally memorializes what you are telling potential investors about your company and its offering, it is a great tool to (i) assist an issuer in providing appropriate information to potential investors and (ii) comply with securities laws governing these disclosures.
Now that you have an understanding of why you may want to use a PPM, let’s turn to what is typically included in a PPM. For the vast majority of private offerings, the securities laws only provide guidance on what may be disclosed in a PPM as opposed to specific requirements. The majority of the SEC’s resources are, understandably, spent on reporting companies (think Facebook and Apple), which do have disclosure requirements. Due to this focus, most of the SEC’s guidance is related to these reporting companies. That being said, private offering practitioners have customarily taken this guidance and applied it to private offerings.
The most commonly included sections of a PPM are (i) a description of the issuer, (ii) a description of the terms of the offering, (iii) certain risk factors and disclosures, (iv) a subscription agreement and investor questionnaire, and (iv) a summary of any material agreements. Although these are the common elements of a PPM, every situation differs.
Description of Business. To convince someone to invest in your company, you have to tell a good story. To do this, you must accurately depict your business, which is the reason a description of the business is often one of the first sections in the PPM. However, from a legal perspective, you must be careful in crafting this section so that you do not violate the prohibition against the use of fraud, materially false statements, omission of material information, or other acts to deceive another person with respect to the offering or selling of securities. Committing securities fraud could result in an adverse judgment, penalties, fines, and even a right to rescind the purchase of securities. To further protect the issuer from claims of fraudulent sales, an issuer may also give prospective investors access to key corporate documents and source material to back up the information in the PPM.
The Offering. This section often describes the terms of the deal and generally, a broad summary of the main documents involved in the deal (e.g., corporate documents and stockholders agreements). Questions often addressed in this section include: how much equity is being offered, price of the shares, whether there a minimum purchase amount, what rights investors will have, and who is eligible to invest.
Certain Disclosures/Risk Factors. Disclosures and risk factors are especially important in addressing the anti-fraud provisions addressed above. This section of the PPM describes in detail the risks associated with your business. Although your inclination may be to limit your risk disclosures because you do not want to “scare” off investors, it should be the section you spend the majority of your time. As mentioned above, securities laws (especially with respect to reporting companies) guide PPM disclosures. To illustrate the importance of drafting these risk factors carefully, consider the case where the SEC initiated an action against Mylan N.V. (“Mylan”), an SEC reporting company. The SEC alleged Mylan violated Section 17(a) of the Securities Act because Mylan disclosed in its SEC filings that there was risk that the Centers for Medicare and Medicaid Services (“CMS”) “may” take the position that its submissions to Medicaid were incorrect when, in fact, CMS had already told Mylan that it was misclassifying one of its drugs resulting in incorrect submissions. In other words, instead of disclosing that CMS had already disagreed with Mylan’s classification of one of its drugs, Mylan misleadingly used the word “may” and presented it only as a potential risk. This example highlights how accurate companies should be in disclosing its business risks to its investors. (Cite: See sec.gov/news/press-release/2019-194; https://www.sec.gov/litigation/complaints/2019/comp-pr2019-194.pdf)
Subscription Agreement and Investor Questionnaire. In order to purchase securities, an investor generally needs to complete some form of a subscription agreement. This agreement governs the actual purchase of securities (e.g., how much is being bought, when must funds be transferred and how, etc.). Investor questionnaires are also commonly included. Not only does a questionnaire provide the issuer with the investor’s contact information, it is also helps the issuer comply with the appropriate private placement exemptions from the SEC’s registration requirements. For example, if an issuer is relying upon the Rule 506(b) safe harbor, generally the issuer will limit the offering to accredited investors, and an investor questionnaire gives the issuer a reasonable belief that the investor is an accredited investor.
Summaries of Material Agreements. Lastly, PPMs also often include summaries of the material deal documents. Generally, these summaries are more in depth than the summary of the offering section addressed above. Depending on whether the issuer is a corporation, limited liability company, or other entity, certain governing documents may also be attached. For example, a corporation might attach its certificate of incorporation which includes information on the class of shares offered, while a limited liability company might attach its limited liability company agreement which sets forth the rights and obligations of its members.
In summary, a PPM is presented to investors to inform investors about the offering, mitigate certain risks to the issuer associated with the offering, and to actually sell the securities. While many types of offerings do not require a PPM to be delivered, it’s helpful to think of the resources spent preparing securities disclosures like purchasing insurance. The more put into preparing the disclosures, the more those disclosures will protect against risk of potential securities laws violations.
This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Bill Ackman certainly likes the Howard Hughes Corporation. He helped create its present form back in 2010 and has served as its chairman ever since. It’s done very well for him, having at times soared nearly fourfold from its debut and serving as one of the drivers of the Ackmanaissance.
Or, at least, it had so served: While other parts of the Pershing Square portfolio have admirably weathered the retail apocalypse, HHC—which operates all manner of malls, along with equally hard-hit offices and hotels—was not so lucky. Its stock lost two-thirds of its value in the early days of the pandemic.
Still, Ackman’s love for company was not dented by this unfortunate turn of events. If anything, he loved it too much. At least, that’s according to the lawsuit filed by another HHC investor, a sheet metal workers’ pension fund in Michigan, which isn’t amused that when HHC decided to sell an additional 12 million shares in late March, 10 million went straight to Pershing Square, by which means it doubled its stake in HHC to nearly 30%, while none went straight to any other shareholder.
The transaction also diluted the interests of the firm’s other shareholders who could only participate in the smaller public offering… The pension fund also said in the suit that HHC and Mr. Ackman “provided conflicting information” regarding who agreed to the deal, saying in some places it was approved by HCC’s board while disclosing elsewhere that it was OK’d by “independent directors” of the board.
“Based upon the limited and conflicting public disclosures, the approval process for the transaction appears to have violated the company’s policies on related-party transactions,” the suit said.
No wonder Billy was so eager to offer Elon Musk a shiny new headquarters in Vegas or Houston.
Union fund sues over stock offering to Ackman, Pershing Square [P&I]
We invite you as Axiom will debut its 2nd annual diversity report and unveil its newfound mission and mandate: Diversity by Design, a programmatic framework for addressing systemic representation, retention, and advancement inequities.
Join us on October 7th at 1 p.m. ET / 10 a.m. PT to learn more about Diversity by Design and why it’s essential to engineer and embed diversity for your business practices.
Discussion will focus on:
Presenters:
John Spinnato, Axiom Lawyer, NAACP Foundation Board Member
Selene Costello, Axiom Lawyer, DEI Strategist
LeMonte McGraw, SVP & Global Head of IT at Axiom
Moderator:
Catherine Kemnitz, SVP & Global Head of Legal at Axiom
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How are Department of Homeland Securities employees supposed to respond to questions about Kyle Rittenhouse, the 17-year-old who traveled from Illinois to Kenosha, Wisconsin where he fatally shot two people?
According to an internal memo leaked to NBC, they’re being instructed to say that he “took his rifle to the scene of the rioting to help defend small business owners.”
Why it would be acceptable for a minor to cross state lines and deputize himself as a vigilante security guard is unclear. Nor is it clear why federal employees are undermining law enforcement agents in Wisconsin, where Rittenhouse is charged with murder. So much for that LAW AND ORDER the president maniacally scream-tweets every day.
“Kyle was seen being chased and attacked by rioters before allegedly shooting three of them, killing two,” is what your tax dollars are paying federal employees to say, before suggesting alternate shooter theories culled from the wingnutosphere: “Subsequent video has emerged reportedly showing that there were ‘multiple gunmen’ involved, which would lend more credence to the self-defense claims.”
DHS employees would never comment on a pending investigation, but they’re pretty sure the real enemies are those pesky racial justice protesters, AHEM RIOTERS, and the media which would frame a poor, innocent young man.
“What I will say is that Rittenhouse, just like everyone else in America, is innocent until proven guilty and deserves a fair trial based on all the facts, not just the ones that support a certain narrative. This is why we try the accused in the court of law, not the star chamber of public opinion,” they will spontaneously remark, before seamlessly pivoting to blaming the protestors.
“This is also why we need to stop the violence in our cities,” pause for brow furrow and bitten lip, probably. “Chaotic and violent situations lead to chaotic, violent and tragic outcomes. Everyone needs law and order.”
Which is a fair echo of President Trump’s insistence that rightwing militias should “stand back and stand by.” “But I’ll tell you what, I’ll tell you what, somebody’s got to do something about antifa and the left, because this is not a right-wing problem.”
And apparently that somebody is a teenager illegally toting a heavy weapon down the street and pointing it at his fellow citizens.
Meanwhile, Rittenhouse’s attorney Lin Wood has entered the fray to take on the real enemy… Joe Biden.
WHYYYYYYY?
Well, his client’s image waving a gun on the streets of Kenosha appeared for half a second in this ad, which is obviously libelslander most scurrilous.
So now it is PUT IN YOUR HEARING AID time for Joe Biden in this hyper-partisan year of “20/20.”
Why would a criminal defense attorney subject his client to civil discovery in the middle of a murder trial? Look, that’s not important now!
The important thing is that Lin Wood is a completely sane person who is currently on Twitter commenting on his client’s case and threatening to rip the likely next president into shreds and take away his “computer contact lenses.”
Neat-o.
Internal document shows Trump officials were told to make comments sympathetic to Kyle Rittenhouse [NBC]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
[A] friend from work texted, “I have something to tell you.” She had overheard the partner on the phone the night before. “He said you flaked again for some pregnancy-related excuse.”
The words stung like finding out from a friend that my boyfriend had been cheating on me. I had given so much of myself, my time, my sweat, my tears and my pregnancy to this man. But the second I expected some basic human consideration, I was thrown away like a dirty diaper. If I couldn’t give them everything, I was nothing. I had fallen into the stereotype of a woman whose priorities had shifted and my baby hadn’t even been born.
I knew there was no choice. I had to leave.
— Jenny Leon, a former Biglaw associate, describing the stressful work environment that she reportedly endured during her pregnancy, where she says she often found herself “being constantly berated by egomaniacs.” One night, as she contemplated going to the hospital because she was spotting at 35 weeks pregnant, a partner called, shouted at her, and allegedly seemed “annoyed” that she had to attend to what she believed was a medical emergency. It was then that she knew she could no longer work at the firm. “I left my law firm after being discriminated against during my pregnancy. This experience is not unique,” she claims in an op-ed at Scary Mommy.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
The prospects in Biglaw seem to be looking up. After the spring of 2020 was spent documenting the austerity measures firms were taking to survive the economic impact of COVID-19, it seems a corner has been turned. Now, we have happier news from Am Law 50 firm Perkins Coie.
So, what were the austerity measures at Perkins Coie? In April. the firm announced the partnership was deferring ~19 percent of their compensation. Then they came for everyone else’s salary. Beginning with their June paychecks, non-partner attorneys saw a 15 percent cut, staff making $200,000+ took a 15 percent cut, and staff making $125,000-$200,000 saw compensation cut by 10 percent.
But today, the firm announced they’ve weathered the COVID storm and they’re doing an about face on salary cuts. Not only are the cuts over, but the firm’s making full restitution payments to make their employees’ salaries whole. As a statement from the firm reveals:
Based upon the firm’s continued strong financial performance, and the positive impact of the business resilience measures we adopted in the spring of 2020 as a result of the coronavirus pandemic, the firm will discontinue the salary reductions that were instituted in June and make full restoration payments to those who received reductions.
“The firm was able to quickly pivot to a virtual environment which allowed for uninterrupted service to clients,” according to Managing Partner Bill Malley. “Today’s announcement results from the firm’s strong client relationships and the collective efforts of lawyers and staff who worked tirelessly to continue providing outstanding service to our clients throughout this extraordinary year.”
If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).
If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.
Kathryn 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).
Excuse me, but have you seen our poll?
This is what desperation looks like, folks.
The National Conference of Bar Examiners, the embattled industry group, has spent the last several months putting out racist and sexist white papers, decrying online exams, furiously backtracking and offering support for online exams, and passing along threats to deny licenses to critics — only to see in-person exams test positive for COVID, online exams crash, and academic research reveal that bar exams are pretty useless at protecting the public. Now, on the brink of a wave of online exams fraught with issues, the organization is rallying behind a new poll that ostensibly shows Americans “overwhelmingly” support in-person bar exams. And it’s a sad poll.
The NCBE commissioned this research itself, using YouGov America — the entity that recently discovered that most Americans want Joe Rogan to moderate the presidential debates — to distribute the poll. What they came up with is this:
Don’t think we aren’t catching the shameless effort to play both sides. The “bar exam” is an overwhelming winner when in-person and online are taken together, but the online question is tagged with “even if people can cheat on it” in order to make sure it’s never going to overtake the preferred in-person model.
Look, there’s not a lot to say about this poll that wasn’t laid out by Natalie Anne Knowlton, who nuked it from space already, but her thread basically boils down to this:
There are so many problems with a poll like this, which sets up the in-person requirement behind so many caveats it’s a joke. We’ve already had in-person bar exams and know that they aren’t actually complying with these protocols. Indeed, state bar examiners are rewriting public health requirements to hold their tests to hold tests that “comply.” The polling gurus at FiveThirtyEight have a segment called “good use of polling, bad use of polling” and this is squarely in the latter camp.
But what’s really sad for the NCBE is that its “overwhelming” figure is so low. Sixty percent is not great when you’re defending an institution that’s been a mainstay for generations. Average Americans don’t understand the bar exam beyond knowing “that’s just the way things are always done” and 40 percent of them are already on board with “maybe this isn’t a good idea.” Even in the post-pandemic version of the question, the test only received 70 percent support. And that number would likely be quite different if the question asked, “Should a person who spent three years being trained and tested at an accredited professional school have to take an additional one-time test or would you prefer a different plan to ensure all professionals ‘keep up’ their licenses throughout their careers?” — a question that more accurately tracks what diploma privilege advocates are talking about.
Also, how is this poll not damning for the NCBE itself? The organization is founded on the core belief that the public isn’t smart enough to know what makes a good lawyer. And yet, when legal professionals start questioning the efficacy of the exam and publishing research undermining the NCBE’s mission, they stake out their defense upon “the hoi polloi knows we need our exams!”
Alas, the audience for this poll is assuredly the state legislators who have started asking why applicants are being put through this when the data doesn’t back up the claim that the test actually protects the public. This is the supposed silver bullet that will scare local politicians off of messing with the NCBE’s testing monopoly. “Don’t listen to those lawyers, law students, and legal academics… your constituents love bar exams!”
For those legislators, just remember that effective regulation shouldn’t be crafted by random polls. There is no special significance to the bar exam when it comes to building a profession that guarantees that effective representation is available to the public. It’s a tool created in a long-gone era when most lawyers entered the profession with little to no formal training. Imagining a better regulatory regime requires reevaluating the system from the ground up.
And there’s no place in that process for being wed to polling of people who have no idea what legally licensing is even about.
Joe 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.