Response from the Bar Monitor re Whether Lower Bar Pass Rate Will Increase Disciplinary Issues

Thanks to Prof. Robert Barrett for this article.   Prof. Fellmeth is responding to the article by the two Pepperdine professors, When bar exam scores go low, discipline rates go high.   You can access the LA Daily Journal Article by Prof. Fellmeth here.  The Pepperdine professors argue that the bulk of the state bar disciplinary actions are against attorneys who take the bar exam more than once.  Therefore they say, reducing the pass level will increase the number of disciplinary actions in the future.

That’s not right says Prof. Fellmeth for the following reasons:

  • “Bar discipline is not directed at incompetence itself.”   Incompetence is resolved typically through malpractice actions, i.e., the client sues his lawyer and seeks damages.  Of course lowering the pass rate could increase the number of malpractice actions in the future.
  • Bar discipline is minimal in any event.  Professor Fellmeth says that the bar files a Notice of Disciplinary Charge against about 3 lawyers per 1,000 each year.  He says if the Pepperdine study is right, the number of NDCs might increase to 4 per 1,000.
  • He says the high passing score tends to reduce the number of attorneys in active practice which he calls “supply constriction.”  That tends to keep prices high which tends to affect attorney supply for the poor and middle class.  I’m sure that’s right but I have a tough time saying that we should reduce the minimum passing score so that there will be more attorneys, thus more reasonable pricing?
  • He seems to argue that passing a higher percentage of those who take the bar will not lower the overall quality of practicing attorneys in California today.  If he is right about that, I am for reducing the raw pass score.  As I said in my last post, if everyone who scores between 1400 and 1440 eventually passes, then the higher raw score is simply forcing those who fall between those numbers to take the exam more than once.  It does not “weed out” those who are not competent.

A couple more points I like.

  • Disciplinary and/or incompetence is more likely caused by lack of supervision by experienced colleagues.
  • The bar exam “has not been properly validated as a test of competence to practice in any sense.”  It is a test of competence says I but of only minimal competence and what is the good of making it even more “minimal”?
  • “California examinees score well above the national LSAT average of bar exam takers, and well above the national average on the Multistate Bar Exam that all state bar exams include.  Yet over the last two exams, 57 and 66 percent, respectively, of these examinees have flunked the California bar exam because of its arbitrary pass point.”
  • “Licensing more California applicants, who score above the national average in both LSAT scores and on the multistate portion of the bar exam given nationally, hardly endangers consumers.”  That is powerful.

As I have said, my personal perception is that many law students make very little effort to learn law.  Often a family member is a lawyer or law is part of their life’s work, for example, real estate agents or paralegals.  They see law as not that difficult, bunches of forms, and the bar exam as something to worry about when we get there.  They do not study law, or, to the extent they do, it is with one eye on the book and one eye on their cell phone.   Those students often do not pass the bar because they just did not learn enough of the fundamental rules in law school to be able to make coherent statements on exams.  I cringe at the thought of letting more of them in than we do now.  But again, if those people are largely getting in anyway, we should not simply force them to study for the bar more than once as the ticket to getting in.

I agree completely that the poor and middle class do not have a chance of getting competent legal representation.  My perception of that however is that even students who barely passed law school and probably barely passed the bar exam, hang out their own shingles, get nice web pages that make it look like they walk on water and charge through the nose.  Allowing another 1,000 people to “pass” the bar next year will not result in there being more available representation of the poor and middle class.

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