In the last month, COVID-19 has forced more than 10 million Americans to file for unemployment. In the coming weeks, law students will join the surge, as employers begin to postpone employment start dates and rescind offers. Many employers, even Vault 100 firms, have cited bar exam postponement as a reason for hiring delays. Now, law students across the nation are mobilizing for progressive change to the attorney licensing process in response to COVID-19. Many of us—supported by attorneys and law professors—are advocating for diploma privilege, a licensing scheme through which prospective attorneys are admitted to the State Bar upon graduation from law school.
As we ask our jurisdictions to change their licensing requirements to meet the needs of clients, employers, and students alike, we are met with some variation of the same question: if there is no bar exam, how can we truly assess attorney competency? We respond by attacking the faulty premise of the question. Why do we believe the bar exam actually tests attorney competence?
There is little to no credible evidence that the bar exam is an adequate measure of lawyer competency. Let’s take California, the jurisdiction to which we seek admission. The State Bar of California has not articulated what it even means to be minimally competent. Instead, the profession has accepted the bar exam as a measure of competency without stopping to think: what exactly are we measuring here, and what does it have to do with being a good lawyer? We understand that the State Bar is looking for some minimum threshold of competence to protect the public.
Interestingly, in a 2017 report to the California Supreme Court, the State Bar of California stated: “public protection has never been clearly defined.” At the same time, the State Bar Act says the protection of the public includes “support for greater access to, and inclusion in, the legal system.” The State Bar seems to have omitted this understanding of public protection to avoid admitting responsibility for developing an exam that does precisely the opposite. Recognizing its own inconsistency would require the State Bar to focus less on attorney exclusion and, instead, dedicate some of its ample resources to preparing an examination that actually tests attorney competence in a manner where the link between exam and competence is apparent to the public. Despite its many years of ample resources and opportunities to do so, the State Bar has only made changes to the exam that increase the subject matter tested and reduce the expense of administering the exam.
Now, we recognize that a minimum threshold of competence is necessary for any licensing scheme. However, we need to figure out what competency means in the context of the legal profession. In the process, we should recognize that there exist numerous ways to prove competencies, such as through staged licensing (as exists in the medical and dental fields), apprenticeships, yearly reviews by employers, and the continuation of legal education. Yet, the legal profession has stuck to a process that has been described as “an excellent barrier to entry, and [a] superb hazing ritual.” We then invariably begin discussing the history of the bar exam. Indeed, at its onset, the bar exam had one simple goal: to control the number of lawyers in the legal profession. This control was often the result of racism and sexism, as members of the Jewish community, people of color, and women sought entry into the profession. Even if we buy an argument for supply-side regulation of the legal profession, the State Bar of California purportedly does not. The State Bar supports “greater access to, and inclusion in, the legal system, [which] shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing [function].” Supply-side regulation of lawyers flies in the face of access to and inclusion in the legal system, as articulated by the State Bar itself.
We take as a solemn truth that clients come to us in times of crisis and share their most intimate details—even as students. Many legal claims do not have easy answers and navigating the legal process requires a baseline understanding of legal jargon and principles. But we must remember this: students attend law school, most full-time, for three years of their lives. In those three years, we spend the entirety of our days learning legal doctrine, participating in the law school Socratic method, and taking exams. Students then spend their second and third years in law school handling real-world cases, with real clients, through clinical opportunities and student practice organizations. We take experiential learning courses, where we participate in mock trials, negotiations, and mediations. We spend our summers helping attorneys write memorandums, motions, and briefs. Our law schools told us we would learn how to think like a lawyer in three years, and we amassed hundreds of thousands of dollars in debt to that end. After graduation, we are expected to take the bar exam, where we add upwards of $4,000 to our debt for an exam that generates millions in revenue. If we truly feel that completion of law school is insufficient to show competence, then we must seriously rethink our approach to legal education.
COVID-19 was an unforeseeable disruption in all of our lives. Its toll will be felt in the years to come. For these reasons, we advocate for one alternative in particular in the midst of a global pandemic: diploma privilege. Diploma privilege is a way to mitigate the adverse impact in the legal profession, with little real risk. And it is not impossible to implement. California enacted emergency licensing to law school graduates on two occasions in the 1900s. Wisconsin has had diploma privilege since the 1800s. West Virginia had it up until 1988. Given COVID-19, Pennsylvania and Utah are considering forms of emergency licensing, in lieu of a bar exam. Are these states interested in competency? Of course. Do they want to protect the public? Of course. But perhaps they, too, have come to recognize that the bar exam is not a reliable measure of competence, and it is certainly not our only option. It is time for our jurisdiction, California, and others to truly internalize the reality that the bar exam is not the arbiter of competence or ethics. Instead, it facilitates the lack of people of color in the profession and is situated at the core of a large, profit-driven legal industrial complex.
As we navigate these unprecedented times, COVID-19 forces all of us to think critically about the value of the bar exam and to think creatively about other ways of licensing that may actually be rooted in empirical support. Why not take this opportunity to create visionary alternatives to the bar exam? As Brit Benjamin suggested in her letter to the editor, this period could launch the inaugural year of a pilot program that tests licensing alternatives. The program could gather data on whether attorney complaints and sanctions increase, whether malpractice claims skyrocket, and whether clients are more poorly represented in court. We have a unique opportunity to simultaneously license attorneys and gain data on whether other types of licensure may yield benefits.
Lastly, we are entering what will inevitably become a grave economic downturn in the aftermath of COVID-19. Individuals and families will need legal assistance with employment, housing, and medical claims. Diploma privilege would allow recent law school graduates to enter the profession and aid those in need.
We recognize that change is uncomfortable. It is also possible and necessary. We must think creatively about attorney licensing in our new world, and we underscore the reality that feasible alternatives exist. We simply cannot say that the bar exam is our only option. And we certainly cannot say that the bar exam ensures only those competent enter the legal profession. After all, where is the proof?
Donna Saadati-Soto is a third-year law student at Harvard Law School, the Executive Editor of the Harvard Latinx Law Review, and she also serves as a student attorney with the Harvard Legal Aid Bureau, heading the immigration practice group. Most recently, as a member of the Bureau, she represented an appellant before the U.S. Court of Appeals for the First Circuit. Donna holds a Bachelor’s degree in Economics from Stanford University.
Pilar Margarita Hernández Escontrías is a third-year law student at the University of California, Irvine School of Law. Pilar holds a Ph.D. from Northwestern University and an A.B. from Princeton. At UCI Law, she is the Chair of the Moot Court Executive Board and on the board for the National Lawyers Guild. She is passionate about the intersection of criminal and immigration law and has represented clients in immigration and criminal court. She will start as a Staff Attorney for the California Appellate Project – Los Angeles in the fall.
Julian Sarkar is an attorney based in San Francisco, CA admitted to practice in California and New York. Julian holds a Juris Doctor from UC Hastings and a Bachelor of Arts from Dartmouth College. Julian primarily serves tenants facing the San Francisco housing crisis and was a nominee for the San Francisco Trial Lawyers Association’s Outstanding New Lawyer of the Year award in 2019. Julian has advocated for improving California’s attorney admissions process ever since his friend took his own life upon failing the bar exam.
Suggested citation: Donna Saadati-Soto, Pilar Margarita Hernández Escontrías, and Julian Sarkar, Does the Bar Exam Measure Competence? The Answer: We Have No Idea., JURIST – Student Commentary, April 21, 2020, https://www.jurist.org/commentary/2020/04/Saadati-Soto-Escontrias-Sarkar-bar-exam/
This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
