California Bar Committee Recommends Waiving Bar Exam Retakes

Several recent law school graduates protest the California Supreme Court’s refusal to make the state bar exam’s new lower passing score retroactive. (Courthouse News photo / Maria Dinzeo)

(CN) — A State Bar committee on provisional licensure will recommend that the California Supreme Court waive the bar exam for those who scored 1390 or higher on the exam since July 2015, so long as they practice a certain number of supervised hours under a licensed attorney.

The program provides a pathway for law school graduates who have come close to passing the bar in the last five years to become fully licensed attorneys without having to retake the exam. 

In July, the California Supreme Court permanently lowered the passing score for the bar exam from 1440 to 1390,  but only for those taking the test in October 2020 and beyond.

The justices declined to make the lower score retroactive to past years despite an intensive lobbying effort from graduates and law school deans.

Last month, the committee voted to extend eligibility for the provisional licensing program to anyone who scored 1390 or higher on the bar exam.

The bar’s provisional licensing committee met by video Friday to craft the rule it will submit for approval to the State Bar’s board of trustees, spending most of the two and half hour session discussing how many hours of supervised practice should be required. 

They settled on two options. The first requires 360 hours for participants who scored 1390 or higher on the exam before July 2017, and 480 hours for those who scored 1390 from July 2015 through and including February 2017. 

The second requires 400 and 600 hours, respectively. Committee member Paul Kramer preferred even more hours, but was willing to settle for 400 and 600. 

“I can be comfortably uncomfortable to vote for 400 or 600 but below that I will be voting no,” he said.

Committee member Rupa Bhandari voted against the higher requirement.

“I’m not understanding what the concerns are for wanting such high numbers,” she said. “I think the people who are going to be interested in taking advantage of this program are people who have stayed close to the legal field and may be working at law firms. So I’m not so concerned with upping the numbers.”

Bhandari, also a dean and adjunct professor at Santa Clara University School of Law,  said she favored the least amount of required supervised hours since most junior attorneys are supervised by more experienced colleagues even after they are licensed.

She even proposed that both categories of participants have the same hour requirement.

Neil Gupta, the principal attorney to Chief Justice Tani Cantil-Sakauye, said he thought fairness demands that there should be two tiers of hours. He said 360 hours equals roughly nine weeks of 40 hour work days, and it takes roughly 360-500 hours to study for the bar exam.

“If folks studied and prepared hard for the February 2020 exam, it’s still something that is fairly recent. They still probably have all those basic precepts in mind. It just seems fair for them to not have as many hours required as somebody else coming in from five years ago.”

Committee member Jennifer Bacon Henning said the numbers made sense when compared to the amount of time bar applicants typically spend studying.

“We’re just trying to come up with a work equivalent for bar prep. Otherwise we’re just doing the retroactive application of the lower score, which the Supreme Court has already decided we don’t want to do. So there is some rationale for a little bit more bar prep in the form of work to get up to speed.”

The proposed rule also requires supervising attorneys to evaluate program participants, describing the type of legal work they performed and whether they believe the provisionally licensed lawyer “possesses minimum competence to practice law without supervision.”

The committee also voted to set a deadline of June 1, 2021 to apply for the program and satisfy all eligibility requirements for admission to the State Bar by June 1, 2022. This includes completing the moral character application. 

The Supreme Court could decide to extend the deadlines, but Supreme Court senior attorney Greg Fortescue said the State Bar should try to educate provisionally licensed attorneys that they should manage their time.

“Even though it seems like a generous amount of time, which I think it is especially if they have a 1390 grade that goes back to 2015, they have a lot of work to do,” he said.

“It’s going to be a lot easier if the entire program terminates on a date certain and if you don’t get your application in by then and have satisfied all the criteria, your opportunity for this pathway to licensure is closed.”

The Supreme Court approved the licensing program for 2020 law school graduates in October, but has yet to decide whether other graduates are eligible. The State Bar also needs to approve the recommendation.

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