Friday, July 17, 2020

Announced Approach to Bar Exam 'Is Not Practical'

This response originally appeared in the July 17, 2020 edition of The Recorder. 

The California Supreme Court’s announcement instructs the State Bar and law schools to do the impossible during ordinary times. To suggest these changes in the midst of a global pandemic is thoughtless at best and dangerous at worst. The Court claims to have sought “the safest, most humane and practical options.” It has failed on all fronts.

Without knowing how the temporary licensing provisions will operate, it is impossible for recent graduates to make an informed decision about taking the October exam. Yet the only guidance the Supreme Court provides the Bar is that the temporary licensing must last two years and include a 15 day public comment period. This is not “practical.”

A remote exam is unfair. Certainly some graduates will be able to plan two days of exam conditions in their homes. However, not all graduates have the wealth or family support required. Many more graduates face home situations in shared spaces with family members who will be attending school or working remotely in the same space. The California Supreme Court simply does not understand the pandemic and its ramifications. This is not “humane.”

Nor are the Court’s plans “safe.” The Court’s suggestion that law schools should provide “facilities and equipment” as they did to help students finish the semester at the beginning of the pandemic is unworkable. To equate a two-day, high stakes licensing exam with attending classes on video conferencing demonstrates a failure to understand what is involved. To provide a student a loaner laptop is a far cry from providing what is needed to take a two day high stakes exam in proper conditions. A student who missed a few minutes of class because of technology problems did not suffer any permanent harm to their legal education. Technology or equipment issues now may prevent graduates from passing a remote bar exam. More importantly, law schools are currently shuttered due to public health orders. It is not possible to provide “safe” options.

While a short, multiple choice style examination might be possible in a remote online setting, a two day exam with written components is not. Presumably bar exam takers will not be allowed actual scratch paper. To require a written exam, without being able to make any notes while reading the exam will potentially benefit those who are more adept with technology or have better computer equipment that more easily allows virtual note taking. No justification exists to take the risk that an exam taker who can afford better computer equipment will have an advantage on the bar exam. The Supreme Court likely does not work on the smaller and older laptops that many of today’s graduates will be forced to use on the examination. This is not “practical.”

Thursday, July 16, 2020

It's Time to Replace the California Bar Exam

This op-ed originally appeared in the July 16, 2020 edition of The Recorder. Read the entire published op-ed here.

By Professor Susan Smith Bakhshian

A fair bar exam cannot be administered today. The State Bar and the California Supreme Court have spent months unsuccessfully searching for a way to offer the bar exam. This must stop. When all of the options are carefully evaluated and no workable solutions exist, it is time to move into the modern age and chart a new path -- one without an exam. The focus on an exam to the exclusion of all other solutions has left California with no plan at all.

Law schools and their graduates have waited patiently hoping for an announcement that would be more thoughtful and workable than some of the jurisdictions who rushed their plans and later had to change course. But the delays continue and no plan emerges for California. Meanwhile, graduates do not have unlimited money to support themselves, or unlimited time to wait for their licensing process to be complete.

The lack of leadership by the California Supreme Court and the California State Bar is an embarrassment. To insist upon a licensing exam that has been under attack for years is indefensible as a pandemic rages on. No one has produced any data to support the notion that somehow a high stakes licensing exam leads to better attorneys. No one has suggested a way to offer an exam without serious health risks. Yet the State Bar and the Supreme Court remain steadfast in their commitment to an exam.

The bar exam is antiquated. The California Bar Exam has not been thoughtfully evaluated or assessed for decades. Yet much has changed for attorneys during that time. While the State Bar is currently analyzing survey data it collected from practicing lawyers, the middle of a pandemic is not the time for subtle changes. The bar exam needs major surgery, not a Band-Aid.

The bar exam promises much and delivers little. A licensing exam does nothing to ferret out the corrupt or impaired attorneys who cannot serve their clients. A robust moral character process, effective diversion programs, and a fair discipline system are better solutions for those problems.

The bar exam is effective at keeping attorneys out for no good reason. It is time to replace it with something that works. Today is a time of great social change. That should include a fair process to license lawyers without clinging to an exam that cannot be administered safely or fairly. The California Bar Examination needs to be replaced.

Wednesday, July 1, 2020