A higher bar: It’s time for more equality in the legal field
When Kim Kardashian announced to her 272 million Instagram followers that she passed the “baby bar” exam on her fourth try, reactions ranged from celebration to derision, and then to confusion over what, in fact, is a baby bar.
California’s First-Year Law Students’ Examination, or “baby bar” is a one-day test designed to allow prospective lawyers a pathway to California licensure without graduating from a traditional American Bar Association accredited law school.
It’s a worthy attempt at diversifying the ranks of people who practice law in California, but it doesn’t go nearly far enough. If our goal is to license competent, ethical and diverse attorneys and protect the public from ineptitude or impropriety, the bar exam is not the tool for the job. In fact, I would argue, it’s time to abolish the bar exam altogether.
The typical path to practice law requires a person to be accepted to law school, graduate law school and pass the bar exam after an unlimited number of tries (in most states). For someone with ample wealth and resources, like Kardashian, multiple attempts to pass the bar are possible.
However, each registration for the baby bar costs $624; the actual bar exam costs $670 per try. This is aside from the thousands of dollars spent on prep courses and tens, if not hundreds, of thousands to attend law school.
A passing score on the bar is set to ensure that a significant percentage of test-takers fail. This does not ensure competency as much as it ensures that those with the most resources have the best chances of passing. In February of 2020, California saw a record low pass rate, with only 38 percent of first-time test takers passing, and just 26 percent overall.
A better alternative to the bar exam or baby bar exam — one that looks to address systemic inequities and promotes competent attorneys — is diploma privilege.
The concept of diploma privilege, or automatic licensure upon graduation from law school, is not new. Before the 1870s, people who wanted to practice law would serve as legal apprentices. Abraham Lincoln famously never went to law school, and is rightfully revered as one of our country’s greatest lawyers. The bar exam was so informal at the time, he once administered one from his bath.
After the civil war, new law schools emerged, offering automatic admission as an incentive to attend. As historically black colleges and universities were established and law schools proliferated, opportunities for students of color to earn degrees increased; in response, the ABA rejected diploma privilege in favor of written examinations. However, these exams exclude minorities from passage, and do not test real lawyering capacity.
At first this barrier to entry was by design. The ABA and the legal profession in general have a well-documented history of excluding women, African Americans, immigrants, and religious minorities. In 1963, the ABA officially adopted the position to admit members regardless of race, but the ramifications of this history persists. African Americans make up 5 percent of lawyers in 2020, a percentage that has not changed in the previous 10years. Just 5 percent of lawyers are Hispanic, and 2 percent are Asian — certainly not reflective of the makeup of our country.
While the history of exclusion is apparent, the broader question remains of how to assess what makes a good lawyer.
At a minimum, lawyers should be able to take a set of facts, analyze them through the lens of laws that apply, and communicate that to an intended audience. However, competent lawyers must also be able to research, problem solve, counsel clients, organize and manage workload, recognize and resolve ethical challenges and, occasionally, go to court. None of these things are tested by the bar.
This list does not include cultural competence, fairness, equity, and commitment to social justice, which I would argue are fundamental to carrying out the oath all lawyers take.
Normally, bar takers sit for a two-day exam answering questions under timed conditions. If you practiced this way in real life — quickly, from memory — it would likely result in malpractice.
The way you learn how to be a competent lawyer is through a combination of education and practice. The use of the diploma privilege, combined with requirements for hands-on practical experience, would be a more effective indicator of who is capable of being a lawyer than the bar exam.
Wisconsin and New Hampshire allow diploma privilege, and several other jurisdictions enacted an emergency diploma privilege in 2021 due to COVID. A program that requires passing specific courses with a minimum grade, combined with additional internship requirements, meets the goal of ensuring competence.
By expanding part-time offerings, law schools could be more inclusive to individuals who cannot afford to take time off to attend law school. Creating opportunities for students with different life experiences is crucial in helping the profession evolve to meet the needs of stakeholders in a culturally competent way.
To be sure, no one is entitled to any profession. And not everyone who wants to be a lawyer should be. There should be high barriers to entry for a profession that requires practitioners act within the highest strictures of ethical behavior. Every lawyer joke you have ever heard belies any suggestion that the current system is effective in that regard.
There are better barometers for what makes an effective, ethical advocate than a test on an area of law that you may never practice. It’s time to adopt a standard that no longer perpetuates the legacy of exclusion and would lead to better, more equitable representation for all.
Alice Setrini is the executive director of the Mary and Michael Jaharis Health Law Institute at DePaul University College of Law and is an OpEd Project fellow.
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