California High Court Debates Making Lower Bar Exam Passing Threshold Retroactive

SAN FRANCISCO (CN) — The California Supreme Court is considering whether to apply a newly lowered bar passing score to the February 2020 exam, following a flurry of letters and petitions from law school graduates, deans, and legislators.

Court spokesperson Cathal Connelly said in an email that while it “has currently taken no action,” on the letters, the high court is drafting an order related its decision to lower the minimum passing score from 1440 to 1390. The justices also rescheduled the traditionally summer exam for Oct. 5-6 and moved it online.

The newly lowered cut score currently applies only prospectively. Connelly said the court “has also taken the retroactivity issue under consideration.” 

He added the court could act at any time after deliberating on an issue and holds monthly conferences on administrative matters.

“The next regularly scheduled administrative conference would be on August 19th. Beyond this, I cannot speculate as to when any order may be finalized,” he said.

Since announcing its decision earlier this month, the court has received letters and petitions signed by hundreds of law graduates, professors and deans asking that the minimum score be extended to those who sat for the February exam. 

But the latest letter from California Assembly Judiciary Committee Chair Mark Stone, D-Scotts Valley, urged the court to go even further and make the 1390 cut score retroactive to 2015.

“If a 1390 passing score supports minimum competency to practice law today, it certainly did so in the past,” Stone wrote. “Moreover, scores in the last five years are recent enough to ensure that applicants will still retain much of the knowledge they demonstrated on the exam.”

The State Bar’s rules allow admission to the bar up to five years after taking the exam, a limit that the agency can extend “for good cause shown.”

“In fact, State Bar rules allow the five-year period to be extended if there is good cause shown, so the Court reasonably should also allow for the recognition of older bar exams scores, provided the applicant can show that they have stayed current in their legal knowledge,” Stone wrote.

In an interview Wednesday, Stone said he and his colleagues have heard from scores of graduates concerned about the disruptions caused by the Covid-19 pandemic. Their initial push was for diploma privilege, where in an emergency situation like the coronavirus outbreak and ensuing public health crisis law school graduates would be able to practice law without having passed the bar. It was a solution Stone and other lawmakers supported.

The court’s compromise was to direct the State Bar to implement a provisional licensure program under which 2020 graduates, who would still have to sit for the exam at some point, can practice specified areas of law over the next two years under the supervision of a licensed attorney.

Stone said Wednesday that while reducing the cut score was a good first step, the pandemic has raised questions about whether the bar exam in its current form is the best way to measure minimum competence to enter the legal profession.

“Because of the current crisis, there’s been a renewed look at the practice of law and how we address the fact that it’s difficult to sit for the exam and if that’s the right way to bring people into the profession,” Stone said.

“The bar exam is a bit of an artificial barrier in my mind. I have always been much happier with multiple measures. In my view it’s nothing more than a stress test. It’s not the best indicator of who is going to be a good attorney. California set a very high standard and it became sort of a rite of passage without really thinking through what its implications were.”

He said the high score was seen as a bulwark against substandard or unethical practices. But the legislator believes that is something the State Bar, an agency tasked with policing and disciplining attorney misconduct, should be overseeing more vigorously.

“If they had a very robust attorney discipline program — that’s how you weed out bad attorneys. Just because someone scored X on an exam that doesn’t mean they’ll be a good attorney,” Stone said. “That high cut score has weeded out a lot of people who would have been good attorneys, competent attorneys who can hone their craft over the years and go back to their communities and provide legal services.”

Stone believes a better solution lay in something like an apprenticeship program, where aspiring attorneys could work for several years under someone with more experience.

“We could look at ways like that in determining competence,” he said. “It would be difficult because it would need to be formalized, consistent and above reproach and above someone being able to hand out favors. I’m not sure what the right answer is. The easiest thing is to fall back on the rather large and dramatic stress test, which is the tradition.”

He said there is an old joke among practicing attorneys about the three types of law: what you learn in law school, what you study to pass the bar exam, and then what you learn in the real world.

“None of them have anything to do with each other,” Stone said. “When you get out into the real world of law practice and you learn the practical applications of how things work, that’s the real law. What you learn in law school may or may not have much applicability.”

While attorneys who have already passed the bar may be resistant to a dramatic change in measuring minimum competence, Stone said it’s worth serious consideration to achieve a more diverse bar.

“We hear from attorneys ‘I had to go through it so what’s their problem?’ That doesn’t mean we can’t look at rigorous but different ways to ensure we’re bringing people with basic level of competence into the legal profession, and through that process ensuring that the legal profession — the bench and the bar — start to look more like California looks,” Stone said. “I think we’ll have better legal services provided to our communities.”

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