Judge Darleen Ortega has spent 17 years on the Oregon Court of Appeals and she’s learned a thing or two about the bar exam as she’s watched from her judicial perch. So when Oregon opted to join Utah and Washington in granting emergency diploma privilege in light of the COVID-19 pandemic and she saw mainstream outlets write the usual jeremiads about the “danger” to the public of a world without a bar exam, Judge Ortega let everyone know exactly what she’s learned about the bar exam.
It’s pretty much useless.
The editorial board of the state’s biggest newspaper — who are, notably, not practicing lawyers or judges — penned a piece repeating the usual talking points about “protecting the public” and called upon the state to put an asterisk next to any lawyer who earned their license via diploma privilege. For “transparency.” Because growing up in the time of COVID definitely means your career should enjoy a permanent Scarlet Asterisk!
Judge Oretega… take it away:
Every year, the examination weeds out people who, I can attest, were very ready to practice law. The test, while difficult, does not screen for the skills actually needed to demonstrate minimum competence. Instead, this very expensive test requires people who, to varying degrees, can’t afford it (having just completed a very expensive three-year course of study) to spend considerable time and money on another course that aims to teach them to pass the bar examination. The exam requires them to answer questions under timed conditions that do not parallel the realities of actual practice. Indeed, answering a client’s questions quickly from memory would in most cases constitute malpractice. And a major portion of the examination consists of multiple-choice questions that aim to trick the test-taker, requiring them to choose the best among several slightly wrong answers.
I will repeat again, “the practice of law is an open book exam.” As Judge Ortega notes, this insistence on running students through “law school pub trivia” to get a license defies the very point of practicing. A useful bar exam would present applicants with a novel problem and give them three hours to research online and bang out a memo, but instead we make tax attorneys memorize hearsay exceptions by rote.
The fact that the test is difficult and that significant numbers of people fail it each time does not prove its legitimacy. The passing score is set to ensure that a significant percentage fails, lending to the appearance that the examination is screening for competence without actually doing so.
I have this specific argument with people all the damn time about the California bar exam. It’s not “harder” than any other bar exam, it’s that California arbitrarily decides to cap the number of new attorneys — in the face of massive access to justice problems — leaving people more than capable of practicing law under the New York rules sitting on the sidelines in California. That’s not about protecting the public, that’s about protecting a guild in a manner designed to harm the public.
That the Oregonian editorial spilled digital ink bemoaning “a quarter of bar examinees usually fail” should embarrass them. That they did so without bothering to look up the fact that Oregon artificially maintains one of the highest cut scores in the country should compel a retraction.
The public is no better protected by this examination than it would be without it; indeed, I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.
As discussed yesterday, the MPRE and character and fitness reviews are designed to catch the behavior that actually harms the public. And, yes, there are unscrupulous law schools in the world that churn out graduates unprepared to practice law but hyperprivileging a clumsy exam to punish those students on the back end is a terrible substitute for cracking down on those schools.
As for tagging graduates with a career albatross for having the temerity to “enter school in 2017 with a master plan to graduate during a pandemic to avoid the bar,” Judge Ortega concludes:
Although it may be awhile before a consensus is reached as to a defensible way to establish minimum competence to practice law, we should be very careful not to punish those who have just been deemed eligible for diploma privilege by suggesting that they are getting away with something by taking that option, or by requiring that their bar license come with an asterisk pointing out that they did not take the bar. We should not contribute to any presumption that they are not competent. They have suffered enough in this season of upheaval, uncertainty, trauma, and risk, and not for a good cause. The granting of diploma privilege doesn’t expose the public to any risk greater than they already faced with a bar exam. For those who are convinced that something more than a law degree is necessary to establish minimum competence, we should address that question without further burdening this group of graduates, who did not create the problem and have suffered quite enough.
Exactly. Let’s at least let these future lawyers off the hook and then set out to have a serious discussion about what does and does not best serve the interests of the public.
And let’s make sure newspaper editorial boards have nothing to do with that process.
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.