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An alternative pathway

October 2, 2023

A new proposal from the State Bar of California offers an alternative to bar exams. It will take thousands of current lawyers to implement it.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

I’ve been skeptical about the utility of bar exams. They don’t test real lawyering skills and they don’t seem to weed out bad lawyers.

But I may be changing my mind about them after reading a proposal for an alternative to the exams recently published for public comment by the State Bar of California. A Blue Ribbon Commission on the Future of the California Bar Exam has proposed an “alternative pathway” to bar membership that consists of going to work for lawyers for four to six months. Applicants would then get graded on what they’d done.

“(G)raders would use assessment rubrics developed through psychometrically sound practices.”

Of course they would.


(Side note: Does anyone out there know who awards blue ribbons to commissions? I figure they’re given out at the state fair.)

Let us compare the two choices bar applicants would have.

Regular bar exam: two days of testing.

“Portfolio Bar Examination (PBE):” 700-1000 hours of supervised legal work over a period of 17.5-25 weeks that include a “range of tasks.”

Where are the PBE people going to get all this supervised legal work?

Well, according to the Bar’s summary of the recommendations, “No specific matching or connecting program is proposed” for finding lawyer supervisors.

Which option would you choose?

Now consider the numbers. There are about 16,000 bar exams taken each year in California. The pass rate is about 66%. My guess is that the 34% that don’t do well on exams for whatever reason will opt for PBE — maybe 5,333 people per year.

Are there 5,333 lawyer supervisors out there for them?

Maybe there are.

Do they want to give real legal work to people who may not know what they’re doing? Could this be malpractice waiting to happen?

And you thought the legal job market for licensed lawyers was already tough.

My favorite on the list of “key components” of PBE, by the way, is No. 9: “Employers should provide compensation similar to that of recent law school graduates without full licenses.”

I think this is because people taking the PBE are recent law school graduates without full licenses.

Real lawyer “supervisors” who have to vouch for the PBE candidates don’t get anything as far as I can tell. Surely there are thousands of supervisors out there who will be happy to put in lots of time doing this for free.

The commission proposal, though, calls for a pilot version of PBE with only about 100 candidates. I’m guessing there will be at least two or three supervisors willing to take them on.

Public comments on this should be fascinating — and will probably be ignored.

In the meantime, I have a much better solution for the licensing problem: barber colleges.

I don’t mean that literally, although I like the idea of getting legal advice during a haircut. What I mean is that you have law students at their schools perform cut-rate and/or pro bono legal services for anyone willing to walk in and get advice from supervised student would-be lawyers.

The students would be supervised by people — i.e. law professors — whose actual job is supervising and evaluating students.

But maybe that’s too obvious.

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