Should Pa. and other states cancel the bar exam for new law school grads? | Pro/Con

The bar exam, an anxiety-inducing initiation into the legal profession, has been under new scrutiny as some experts have raised questions about whether the days-long testing process is really necessary to determine if new law school grads are qualified to become lawyers. This year, the exam, usually conducted by packing recent graduates into a room for several days, also raises public health questions given the coronavirus pandemic and the social distancing measures recommended.

The Inquirer tapped a recent law school graduate and a former law student to debate: Should Pa. and other states cancel new law school grads’ bar exam?

By Domenic Powell

The Pennsylvania Board of Law Examiners plans to hold an online bar exam in October. This plan is a bad idea, if they can even pull it off. The state Supreme Court should cancel the exam and let recent graduates practice law if we otherwise meet the requirements.

An online exam may not be feasible. One of the three software companies that administer online bar exams withdrew themselves from any more tests this year, citing insurmountable logistical problems. Online exams and trial runs in other states have suffered data breaches and cyberattacks. The state board of examiners is inviting disaster without a plan to overcome these challenges.

» READ MORE: For Pa. and N.J. law school graduates, bar exams will be held despite virus and questions about the testing ordeal

No class of applicants has ever studied or taken the test under circumstances like these. As a new dad, I will take the online test from home while my 5-month-old daughter cries from the next room. Since the bar examiners scheduled the test during the school week, other parents taking the test will be tending to their school-age children whose classes have moved online. Child-care options are slim to none unless we want to gamble with our children’s lives.

Parents are not the only applicants who will be placed at a disadvantage by the bar examiners’ poorly considered plan. So are lawyers of color, who come from communities with dramatically higher rates of COVID-19 infection. Our profession is already 86% white, according to the American Bar Association. Holding the exam now will reinforce barriers keeping out underrepresented groups.

There are also implications for access to legal services. Although large firms have provided stipends to incoming associates to help them weather the storm, offices that more routinely serve low-income clients like small firms, public defender offices, and nonprofits generally cannot.

Holding a bar exam amid a public health and economic crisis is more a test of resources than our fitness to practice law. Who has financial support while they prepare for the exam? Who is not responsible for someone else’s care? Who has a quiet place to study and take a three-day exam? Who is not worried about finding, or holding onto, a job?

“The equitable solution is to grant us a ‘diploma privilege’ letting us practice law if we meet all the other requirements.”

Even a postponed exam would be unfair. Holding a bar exam when the pandemic is over — whenever that may be — will also disadvantage lawyers who cannot leave their jobs or take extensive time off to study.

The equitable solution is to grant us a “diploma privilege” letting us practice law if we meet all the other requirements. A growing number of states are taking this approach while imposing modest conditions to allay concerns about our fitness.

The National Conference of Bar Examiners (NCBE) considers a diploma privilege an “extreme step” that would unleash unqualified lawyers on the public. But the state of Wisconsin has offered its in-state graduates a diploma privilege for decades without controversy; its lawyers are known neither for being uniquely gifted nor uniquely incompetent. In fact, the president of the Wisconsin-based NCBE is herself a beneficiary of the state’s privilege, as was her predecessor.

The Philadelphia Bar Association believes that firms could discriminate against lawyers who are licensed through privilege. This belief is entirely speculative. The consequences of holding an exam for lawyers from underrepresented groups, however, are not.

Plenty of legal organizations claim to believe in promoting diversity and inclusion in the profession. Their response to the coronavirus will prove whose commitments are sincere.

Domenic Powell is a 2020 graduate of the University of Pennsylvania Carey Law School. In the fall, he will join the Consumer Financial Protection Bureau through the agency’s honors attorney program.

By Chandra Bozelko

As the Pennsylvania Board of Law Examiners plans to hold an online bar exam in October, some are arguing that the bar exam be canceled all together this year. We cannot dispense with the bar exam.

Bar admission isn’t a reward system for people who’ve graduated from law school; it’s a protection for the public, who expect legal professional assistance when their property, rights, reputation, freedom — or even their lives — are in jeopardy. Quality legal representation can make all the difference in a client’s life.

It did in mine. I finished two years of law school and was arrested, and that’s when my real legal education began. I had a defense attorney who admitted to not having even read my file. Another one lied on the stand when she was questioned about her admission to the judge that she wasn’t prepared for my sentencing.

My attorneys weren’t outliers. Take, for example, lawyers like Kimberly Kitchen, the Pennsylvania woman elected the president of her local bar association who never went to law school or took the bar exam, defrauding clients and colleagues alike.

People supporting diploma privilege argue that the bar exam doesn’t determine competence and cite that, in Wisconsin, a state that already employs diploma privilege, discipline rates are comparable or lower to other states, even California, which arguably has the hardest bar test with the country’s lowest rate of passing.

This argument — that disciplinary forces will admonish all bad attorneys if the bar doesn’t catch them first — depends on an honest and effective regulatory system. I don’t think that exists in this country. Discipline of attorneys is often politically motivated. In 2015, an auditor found the State Bar of California did an insufficient job of extracting bad lawyers.

In 2018, 2,872 attorneys were publicly disciplined out of 83,073 complaints filed; more than 6% of the legal profession faced a complaint that year. That would mean 96.5% of clients who complained about their attorneys were wrong. Remember, these disciplinary boards are manned by other lawyers, so they tend to protect each other.

Even leaving the potential misconduct aside — even the most qualified people can make mistakes — in law, a diploma alone doesn’t prepare someone for practice.

Unlike medical students, who spend half of their education in practical, clinical settings, law students are only required to take six out of 72 to 90 credits in experiential learning. That’s less than 10% dedicated to the actual practice of law. While some students undoubtedly take more, it’s nowhere near the 50% that all medical students will have dedicated to field experience by the time they graduate.

The bar exam may not provide that experience, but it does assure that those nonclinical lessons that dominate a law student’s schedule actually worked.

I understand that 2020 may constitute an emergency exception in that the extended time spent inside, in close proximity to other test-takers, can spread SARS-CoV-2.

I don’t favor any set up that would put law school graduates at higher risk of catching a disease we’re only just beginning to understand.

But ways to distance people or administer the exam online are there; 11 states have already established safety protocols and conducted the test.

I’ve heard the arguments that the bar exam weeds out people who are lousy test-takers but would be great lawyers and that the test is not a good barometer of future performance. The bar examination’s fallibility is the same as any. No test culls the qualified perfectly.

The stakes of lawyers’ mistakes are simply so high that I can’t imagine stripping away one of the few barriers between unqualified people and the harm they can cause to unsuspecting clients. The bar exam may not determine competence, but getting rid of it doesn’t assure it either. If anything, we need additional selection measures in place.

Chandra Bozelko is a syndicated columnist with Gannett Media. Her experience with the criminal legal system — and the lawyers within it — is detailed on her award-winning blog, Prison Diaries.