Bar Exams

An Analysis Of The California Supreme Court's Decision To Reject A Proposal That Would Let Law Students Avoid Taking The Bar Examination

Standardized testing such as the bar exam is likely to stay, for better or for worse.

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bar exam scantron multiple choiceLast week, the California Supreme Court declined to adopt a proposal known as the Portfolio Bar Examination (PBE) that would be a substitute for taking the California Bar Examination. Instead, law school graduates would engage in a period of supervised practice and generate a portfolio of work product while advising and representing actual clients. They would also only take a portion of the California Bar Examination — specifically the performance test which requires applicants to perform legal analysis based on specific information provided.

The court noted that the PBE is illegal because California law requires admission to the bar which requires an applicant to pass the “general bar examination.” The court does not consider the PBE to be equivalent to the general bar examination.

The court was concerned about the fairness of the PBE. It assumed that the supervising attorney would play a role in the creation of the work product. But this would make the portfolio dependent on the supervising attorney. A more skilled attorney would create a better portfolio than a less skilled one. The court also noted that there were no safeguards to ensure that the applicant created their work product as opposed to using premade templates or other peoples’ work.

Next, the court stated that the PBE is unlikely to be an adequate measure of an applicant’s competence in issue-spotting. In a preconstructed question, it would contain both relevant and irrelevant facts or law, and so the grader would know which issues a competent attorney should spot. On the other hand, the issues involved in a real-world scenario are unknown to the grader. If an applicant fails to identify a crucial fact or legal issue in the portfolio, the grader is unlikely to spot the issue as well.

The court also found that the PBE grader would be unable to directly view an applicant’s ability to conduct client interviews and negotiations. Instead, the grader would score these skills indirectly through redacted assessments of the applicant’s performance, authored by the applicant and his or her supervisor. These self-reported assessments may not be objective. Also, the court noted the ethical dilemma of compelling inexperienced attorneys to conduct high-stakes negotiations and interviews.

Lastly, the court noted that if the graders were to detect a subpar work product, the grader may have the obligation to inform the supervisor’s client of the deficient work. The supervisor may even be reported to the state bar for failing to adequately supervise the applicant’s work, which could result in discipline.

Taking all of the above into account, the court does not believe that the PBE scores would be reliable due to the disincentives for giving objective assessments and the lack of safeguards to ensure that the applicant completed his or her own work product.

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There are a few observations from the court’s decision. First, the court seems skeptical about solely using the supervisor’s word to determine competency. It notes the potentially awkward position of a supervisor having to give an unfavorable evaluation of someone they have trained and may continue to work at their firm. It should be noted that other professions that have experience requirements in order to be certified or licensed (such as CPAs and medical residents) similarly rely on evaluations from supervisors (of varying quality) and that hasn’t resolved large-scale, systemic problems. But these professions require applicants to take and pass a general licensure examination to be admitted.

Also, the court seems to understand that some things cannot be easily and reliably tested, particularly when it comes to soft skills such as dealing with clients and people in general. It would be an arduous effort to evaluate an applicant’s ability to engage with people coming from various walks of life with different personalities. Will the graders want to know how the applicant handled people from different cultures or language barriers? How about people with adversarial interests? It will be near impossible to cover every single potential client encounter.

Also, how would a candidate’s honesty be tested? For example, if someone gets a perfect score on the MPRE, does that mean he or she is an absolutely ethical attorney? Or would he or she know the rules well enough to find and exploit loopholes?

The court did not consider the issue of specialization. Considering that most lawyers today specialize in one or a few practice areas, would it be appropriate to issue a general license to practice to an applicant who studied under a specialist? Should someone who trained under a family law attorney be allowed to do worker compensation cases?

In the final analysis, standardized testing such as the bar exam is likely to stay, for better or for worse. Many elite colleges temporarily stopped accepting standardized test scores but have now reinstated them.

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The primary argument against the bar exam and standardized testing in general is that it benefits people who have the means to purchase expensive bar exam prep courses or simply “test well.” While that is a legitimate concern, law schools can address this problem by offering their own bar exam preparation program. For law schools with lower than average first-time passage rates, this program should be mandatory.

As for programs such as the PBE, rather than being a substitute for the bar exam, it should be an optional replacement for the third year of law school. This could save students one year of tuition and even allow them to earn enough money to pay off the first two years of law school.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at [email protected]. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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