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Should the Bar Exam Be Optional?

The Bar Exam Article the Bar Association Doesn’t Want You to Read

Despite being asked by the Nashville Bar Journal Editorial Committee to write an article, for the Nashville Bar Journal, about the bar exam, after submitting this article, the authors received the following rejection:

“After the committee chairs thoroughly reviewed your article, we do not feel that it fits with the Journal’s upcoming December / January theme, and we will not be publishing it this month. If you would like to submit the article to a different publication, please feel free to do so.”

This is the bar exam article the Bar Association doesn’t want you to read.

The Bar Exam’s Dubious Merits

Recently, our society has been “stress tested,” by the effects of the COVID-19 pandemic, and many assumptions that have long remained unchallenged are getting a long overdue second look. Among those assumptions are the notions that the bar exam is really necessary and that requiring the bar exam for licensure to practice law is of net benefit to society. This article seeks to answer the questions: Do we really need the bar exam; and should the bar exam be optional?

Since the advent of the Progressive Era, the combined forces of institutional pressure and inertia have propelled the legal profession to adopt a strange licensing scheme. The odd way lawyers get their licenses to practice law seems opposed to the ostensible purpose of professional licensure.

Supposedly, the bar exam exists to establish the competence of those who have passed it to practice law. Take a look at the pages of the Tennessee Bar Journal — or any similar publication from any jurisdiction around the country — which regularly publishes lists of disciplinary actions taken against licensed lawyers. If the bar exam can so effectively determine lawyers’ competency to practice, why are so many regularly sanctioned, suspended, or disbarred for incompetence? Is this evidence the bar exam is not really well-suited for its ostensible purpose?

Of course, many attorneys are disciplined for reasons other than competence, but — based on years of reading these lists (but without doing a thorough statistical survey) — it appears competence is the primary reason most subjects of disciplinary action are sanctioned, suspended, or disbarred. If the bar exam is not able to efficiently able to separate competent lawyers from incompetent ones, why do we need it?

Why We Started Requiring the Bar Exam

Abraham Lincoln, our esteemed sixteenth president, did not go to law school, apprentice at a law firm, or pass a rigorous bar exam. As the story goes, in 1834 John Todd Stuart loaned the future president some law books. Two years later, Lincoln procured a certificate from a county court in Illinois certifying his “good moral character” and passed an oral examination by the Illinois Supreme Court. In April of 1837, he began his legal career working for the man who originally loaned him the books, practiced for twenty-four years, and was involved in at least 5,173 cases.

In 1763, the colony of Delaware instituted the first “bar exam,” which consisted of an oral exam in open court before a Superior Court judge. The remaining colonies followed suit and this standard remained in place after the American Revolution. In most states, apprenticeships were added as requirement in addition to passing the oral exam, though the apprenticeship length was brief and the examinations were generally casual.

While the first law school was founded in the 1770s, it wasn’t until 100 years later that school was considered an alternative to apprenticeship. The benefit to those future lawyers was diploma privilege — allowing law school graduates to forgo the bar exam requirement altogether. Prior to 1885, the only requisite to become a lawyer was to study the law and take an oral exam. The first state to impose a written bar exam was Massachusetts, which consisted of essays. In the 1920s the ABA formally opposed diploma privilege, and within twenty-five years only nine states allowed for this waiver. In early 1972, the multi-state bar exam (MBE) was created in an effort to increase efficiency in grading and ensuring testing fairness.

Currently only one state (Wisconsin) maintains the diploma privilege that allows a future attorney to waive the bar exam requirement upon graduation. Two states (Maine and New York) require either graduation from law school or a combination of years in law school and apprenticeship to be eligible for taking the bar exam.

Four states (California, Virginia, Vermont, and Washington) allow potential lawyers to take the bar exam without the requirement of law school. Instead, these prospective lawyers may apprentice with a practicing attorney or judge. That said, between 1996 and 2016, a total of 1,142 apprentices took the bar exam. Only 27% (or 305) of those who elected for apprenticeship over law school passed the exam.

A meaningful study has never been done to demonstrate that those who practice law after passing the bar exam achieve better outcomes for their clients than those who practice law after obtaining the diploma privilege. Neither has any study ever shown that a combination of law school and apprenticeship, without requiring passage of a written examination, would not adequately prepare lawyers to competently practice law.

The Bar Exam in 2020

On July 2, 2020, the Tennessee Supreme Court issued an order that showed that the Bar Exam Emperor was, in fact, not wearing any clothes. The Supreme Court’s handling of the 2020 COVID-19 pandemic inadvertently revealed just how arbitrary the bar exam requirement really is.

In its Order No. ADM2020–00428, the Supreme Court wrote:

“… The Court has determined that the potential benefits of administering the examination do not justify the risk of assembling groups of people in limited space for up to nine hours per day over a period of two days, even if all precautions recommended by the Centers for Disease Control and Prevention are implemented. Therefore, the requirement in Section 4.03 of Rule 7 for an examination to be given in the three grand divisions is temporarily suspended and the July 2020 examination is canceled. …”

Adding:

“… The Court will issue supplemental orders extending the time for which an applicant may practice pending admission or practice under supervision. …” Id. (Emphasis added.)

Of course, there was a justifiably intense and vociferous backlash from future lawyers, who had spent untold fortunes and not less than three years of each of their lives to meet the stringent requirements to even be permitted to take the bar exam.

On July 13, 2020, the Tennessee Supreme Court opened a path to professional licensure for those who had been preparing for the July 2020 Uniform Bar Examination in Tennessee:

“The Tennessee Supreme Court issued an Order canceling the Fall 2020 Bar Examination and Approving Administration of an online, remotely-proctored Admissions Assessment. The online Admissions Assessment will consist of 1 MPT item, 3 MEE questions and 100 MBE questions, all being released by the NCBE specifically for the online test. The Admissions Assessment will be administered October 5–6, 2020, and will result in a score that can be used for admission in Tennessee.” (Emphasis added.)

Test materials used for the Admissions Assessment are owned by the National Conference of Bar Examiners (NCBE).

The question we all should be asking is: If bar exam applicants are competent to practice pending admission or practice under the supervision of another attorney, what difference does taking and passing the bar exam make? The requirement to take and pass the bar exam (or an online “admissions assessment”) seems to be, at best, an arbitrary and vestigial product of inertia in the legal profession.

More critically, the bar exam appears to be an entirely superfluous barrier for entry into the legal profession, given that law school graduates are permitted to practice pending admission or practice under the supervision of another attorney. Why not simply couple a law degree with a certain period of apprenticeship, and entirely dispense with the requirement that one take and pass the bar exam?

In the last decade, much ink has been spilled over the issue of whether or not law schools do — or even can — prepare lawyers to practice law. As the title of one New York Times article put it, “After Law School, Associates Learn to Be Lawyers.”

Competency requires more than legal theory, but law schools are ill-equipped to provide much else. Young lawyers with freshly minted licenses to practice law after passing the bar acquire the experience they need in order to be truly competent through on-the-job experience.

“‘The fundamental issue is that law schools are producing people who are not capable of being counselors,’ says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. ‘They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.’

Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, ‘We don’t want to see the names of first- or second-year associates on our bills.’ Other clients are demanding that law firms charge flat fees.” (NY Times)

No bar exam or online admissions assessment can adequately test for the kind of experience a lawyer gets on the job. For years, law schools have been trying to improve their instruction in practical skills, offering courses such as Lawyering & Legal Reasoning and Law Office Practice & Management. The reality, however, is that school is not an environment in which one can efficiently and effectively learn the lessons best taught by experience — the “school of hard knocks,” so to speak.

Simply stated, law school can give you experience, but only practicing law can give an attorney’s wisdom. One needs both knowledge and wisdom to be a competent lawyer.

The bar exam fails at assessing competency because it cannot test for wisdom. Even the MPRE tests only knowledge of the right answers to ethical questions, not good moral character, itself. We can test for knowledge, but testing for wisdom is beyond the self-acclaimed experts in which adherents of the ideology of Progressivism have placed their faith for over a hundred years.

Assessing Legal Competency in the Future

The state certainly has a legitimate interest in protecting the public from incompetent or unscrupulous legal professionals. After all, the damage to social cohesion would be incalculable and irreversible if bad lawyers were permitted to further undermine the public’s confidence in an already poorly understood, and often distrusted, legal system.

The question is not whether the state should take measures to protect consumers, but which protective measures really provide a net benefit to society. To this question, the answer of maintaining the status quo seems wholly insufficient. Indeed, without further innovations in the competency assessment of those who would practice the profession, the continued use of the bar exam serves only to limit the number of licensed lawyers and artificially inflate the cost of their services.

The first innovation that the legal profession ought to embrace is downgrading the importance of the bar exam, and making it optional. The bar exam’s role in providing a standard, such as it is, for a minimum threshold of knowledge required to practice law, would be better served by making bar passage akin to an optional certification. States might even require lawyers to disclose to their clients both whether they have ever taken the bar exam and, if so, whether or not they passed. Additionally, states might require lawyers to disclose how many attempts were required for them to pass the bar exam.

The second innovation the legal profession ought to embrace is restoration of the diploma privilege. While this might have the accompanying effect of reducing reciprocal recognition of licensure between and among states, comity is already unevenly available between states. The vast majority of lawyers will be unaffected by such collateral effects.

The third innovation — and, for the sake of brevity, the last listed here — is the replacement of the third year of law school with a one-year supervised apprenticeship. Apprenticeship under the supervision of an attorney would:

  • Increase the number of mentor relationships young lawyers have;
  • Provide them with valuable experience and the foundational wisdom attained thereby; and
  • Increase the percentage of new lawyers that are gainfully employed at the outset of their careers (as opposed to having to hang out their own shingle, work as paralegals, or, for want of an attorney job, find work outside the legal profession).

These innovations would better protect the public than the status quo has done, lo these many years. Also, such innovations would lower barriers to entry in the legal profession, allowing for marginally more freedom in the market for legal services. Market forces, then, will do what they do best, bringing prices for legal services into closer alignment with their value to consumers.

About the Authors

Noel Bagwell is an award-winning attorney and the President and Chief Legal Counsel at ExecutiveLP®, a Nashville-based law firm providing preventive legal services to small businesses. He was awarded the 2010 Economic Analysis of Law Scholar of Merit honor from Cumberland School of Law. In 2016, 2017, and 2019, he won the TN Supreme Court’s Attorney for Justice award; and, in 2020, was awarded the Clarksville, TN Mayor’s Certificate for “servant leadership, ongoing sacrifice, and commitment to collaboration and inclusion within our small business community.” Under his leadership, ExecutiveLP® has been nominated for multiple BBB Torch Awards for ethical business practices.

Kristin Thomas is the owner of KT Designs, LLC; a Trial Consultant, an Information Design Expert, an Artist, an Author and a self-described Cyber/Tech Nerd. KT Designs, LLC develops compelling visual concepts to ensure maximum comprehension and retention within a variety of industries. Her specialties include: Information Design, Litigation Graphics, Demonstrative Design, Courtroom Technology, Trial Consulting, Legal Graphics, Design Consulting, Computer Graphics, Visual Marketing, Concept Creation & Development, Book Layout, Photography, Videography, Painting, Illustration, Writer, Editor, Web Design

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ExecutiveLP® is a virtual law firm focused on providing preventive legal support to entrepreneurs, startups, and small-to-medium businesses.

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ExecutiveLP®

ExecutiveLP®

ExecutiveLP® is a virtual law firm focused on providing preventive legal support to entrepreneurs, startups, and small-to-medium businesses.

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