Criticism of Non-Exam Pathway Is Thinly Veiled Protectionism

By Professors Susan Smith Bakhshian and Stephanie Rae Williams

This op-ed appeared in the August 3, 2022 edition of the Los Angeles Daily Journal.

A non-exam pathway to licensure is long overdue in California.

A non-exam pathway can provide public protection better than an exam. An exam is an excellent tool to ensure that the highly privileged, who can afford to study full-time without working and have few family demands, will continue to be licensed. An exam is an excellent tool to ensure that the bar prep industry continues to earn profits by selling courses and study materials. An exam is an excellent tool to maintain the status quo of a profession that fails to match the ethnic diversity of our state. An exam is an excellent tool for licensing attorneys in a bygone era by relying on memorization seldom used in practice – not skills actually used in ably representing clients.

The bar exam’s faults are legendary. Every California attorney convicted of misconduct passed the exam. And the practice of law has modernized while the exam clings to testing methods that do not differentiate the qualified from the unqualified. The exam tests antiquated doctrines that attorneys will never use under conditions attorneys never face. Nothing justifies testing common law principles that are inconsistent with California law. Yet the exam continues to do so, in a manufactured and unrealistic environment where bar takers cannot consult with other attorneys or mentors, perform legal research, or do any of the other real-life tasks our duty of competent representation demands. The exam assumes that California attorneys are general practitioners in over a dozen distinct practice areas. That era ended long ago with most attorneys limiting their practice today. And even those with more general practices do not offer services in every subject tested on the exam without a chance to educate themselves or associate with an expert before taking clients in unfamiliar areas of the law.

A non-exam pathway is a better way forward. As detailed below, with supervision and proper safeguards to ensure a reliable and valid assessment of educational requirements, California can move into the modern era and license attorneys without reliance on an exam that is not transparent and has excluded too many for too long.

A non-exam pathway will not provide licenses to all the graduates of unaccredited law schools. Stoking fear with unsupported assertions that California has some law schools that do not provide a quality education is a matter for the State Bar to deal with in its regulatory capacity. Regulating California’s law schools should not be a function of a bar exam. Claims that a few schools might not provide a valuable education cannot support a system where all applicants at ABA and California accredited schools are forced to take an ineffective and outdated exam. Assuming some schools would offer substandard training, the non-exam pathway can respond with supervised practice requirements and portfolio assessments by the State Bar to ensure minimum competency.

Critics offer no evidence to the contrary. Unsupported assertions and broad misstatements about lax supervision or diploma privilege are convenient cover for what amounts to protectionism at best, and cruel discrimination at worst. Too many groups opposing a non-exam pathway are those affiliated with the bar prep industry, those who draft or administer the existing exam, or those who believe others must suffer because they struggled with the exam.

Supervision is possible. Canadian provinces have successfully supervised new attorneys for generations. Oregon recently approved a supervised practice pathway. California’s own pandemic era provisional licensing program provided the State Bar with insights into the best practices necessary to offer a non-exam pathway. Applicants who earn their licenses through supervised practice are not mere interns; their supervisors assume professional responsibility and tort liability for the applicant’s work. Plus, supervision is only one component of a non-exam pathway.

A non-exam pathway is not a diploma privilege. Licensing every graduate should be a goal. But a non-exam pathway will not result in all graduates being licensed. Some applicants will fail the education or portfolio requirements of a non-exam pathway. For those applicants whose portfolio is deficient, resubmission and further evaluation by the State Bar would ensure a competent attorney is licensed. While a second time exam pass ensures nothing more than additional time spent memorizing, less noise in the testing site, random luck, or some combination of factors unrelated to competency.

We can also insure validity and reliability. California’s Department of Consumer Affairs has many years of experience with administering 3.4 million licenses, more than 280 license types, including over 150 professional licenses. Exams are not the only option that can meet the psychometrician’s standards of reliability and validity. Law lags behind by refusing to modernize its licensing requirements.

New licensing approaches will have costs, but opponents overestimate those costs – while overlooking the financial burdens of the current exam. Bar takers pay at least $10,000 in bar fees, tuition for bar prep courses, foregone income, and travel costs to take the exam.

Law schools and law students are not sheep. To suggest students will gravitate to easy internships misses two key realities. First, the State Bar can set the non-exam pathway to require a minimum standard of rigor. Second, law students select difficult and challenging internships every day. Indeed, the most prestigious internships are anything but easy.

To suggest law schools will not teach legal fundamentals is absurd. Law schools have mandatory curriculums for all or most of the first year as required by the ABA and California State Bar. In fact, in the last twenty years, while the bar exam has failed to evolve, California law schools have added many graduation requirements, increasing hours required in core subjects and skills courses. And even if this purported risk of decreased fundamental teaching existed, it would only be a reason to carefully craft the education requirements, not a reason to reject a non-exam pathway.

Finally, skills and professionalism are better built and assessed in a non-exam pathway. Passing an exam does not ensure the applicants are skilled in anything other than memorization and high stakes testing. Passing the bar exam simply indicates the test taker’s privilege and wealth. Recent studies at the state and national level demonstrate that bar exams over test on knowledge that is unrelated to today’s practice of law, and under test on skills attorneys use every day. Interviewing, counseling, negotiating, and other lawyering skills can all be evaluated as a part of a non-exam pathway. A non-exam pathway would do more than protect the public – it would provide newly licensed attorneys who have demonstrated the skills needed to properly represent clients. Skills nowhere to be found on the exam.

The California Supreme Court established the Blue-Ribbon Commission because the exam is not working. Hours and hours of public meetings decry the critique that the non-exam pathway is hasty or fails to consider the concerns raised by the many constituencies represented on the Commission. Indeed, the Commission recommendations remain a work in progress. Public comment is part of every meeting, with many diverse voices supporting a non-exam pathway, many times outweighing the critics. Public comment remains an integral part of the Commission’s work of making recommendations. Ultimately, the Board of Trustees and the California Supreme Court will assess the Commission’s recommendations, which are not yet final, and provide a process for all stakeholders, including public comment, which is the State Bar’s common practice. If stakeholders will join the process instead of criticizing without evidence, California can create a non-exam pathway that leads the nation in best practices.

Members of the California bar have known for decades that the current bar exam disproportionately excludes people of color from the profession. Further study will not solve the problem. A non-exam pathway can improve diversity and ensure competent new attorneys.

Rejecting a non-exam pathway before it is crafted because attorneys do not want more competition is little better than hazing and smacks of thinly veiled protectionism. The profession is better than that. Criticism of a non-exam pathway without any evidence of potential harm should be rejected. Where legitimate concerns are raised, the non-exam pathway can be constructed to meet them. The evidence and experts know a non-exam pathway can be crafted to better protect the public and provide a transparent and fair licensing process. California needs to lead the way.

Susan Smith Bakhshian is a clinical professor and director of Bar Programs at LMU Loyola Law School, and a member of the California Supreme Court’s Blue-Ribbon Commission on the Future of the California Bar Exam. Stephanie Rae Williams is assistant professor of Legal Research & Writing, Pepperdine Caruso School of Law

In Memoriam: Anne Wells

Few have made their mark on Loyola Law School or the legal profession like Professor Anne Wells ’91, who at the height of her career as a law firm partner specializing in bankruptcy law, a field she was instrumental in shaping, returned to LLS to teach.

Wells, who passed away on April 24, 2022, brought nearly 15 of practice experience – including founding her own business law firm – to the law school when she joined the faculty in 2009 to teach Ethical Lawyering and Legal Research & Writing. Later, she added Law & Process: Privacy Torts, Legal Drafting, Torts II and, of course, Bankruptcy.

“For many years, and in many roles, Anne represented the best of who we are and hope to be. She cared deeply about students and their success,” said Dean Michael Waterstone. “She believed deeply in our equity and inclusion mission, and devoted her time and talents to always working to be a community where everyone belongs. And she was both fun, and funny. I will miss her greatly.”

Over time, Wells expanded her role as a student mentor as Director of Academic Success, helping students navigate the unique challenges of law school coursework. That is no surprise considering the superlatives she earned during her time as a student, which included graduating cum laude and Order of the Coif, and serving as Comment Editor of the Loyola of Los Angeles International & Comparative Law Review. Additionally, she was a member of the St. Thomas More Law Honor Society, which awarded Wells the 2022 David P. Leonard Memorial Faculty Service Award, recognizing faculty who have made exceptional contributions to the LLS community.

Always generous with her time, Wells volunteered with a number of organizations. She was a member of the Alumni Association Board of Governors, which helps organize such LLS tent-pole events as the Alumni Grand Reunion. Elsewhere, Wells was a volunteer coach and site coordinator of the APLA AIDS Marathon Training Program, served on the Occidental College Tiger Club Alumni Board and was member of the Granada Hills North Neighborhood Council.

 
“Professor Wells provided a safe and inclusive space for so many Loyola students,” said Mieko Failey ’13, Legal Director, The LGBTQ Center of Long Beach. “Her impact lives on through the countless students she supported in becoming attorneys who will carry on her legacy of building more inclusive and affirming communities.”

Beyond the classroom, Wells influenced bankruptcy law through her scholarship that often crossed over with issues of ethical lawyering. She was an editorial board member of the California Bankruptcy Journal for well over a decade, fusing her experience both as an academic and that of a practicing attorney who parlayed her experience as a law firm partner to form her own firm, Futter-Wells, PC, in 2007. Her articles included “Avoiding Ethical and Management Minefields in the Bankruptcy Practice,” “Navigating Ethical Minefields on the Bankruptcy Bandwagon” and many more.

In lieu of flowers, the family has requested that donations be made to the Professor Anne Wells Memorial Scholarship at Loyola Law School. Donate via this link or by writing a check to Loyola Marymount University and send to the address below.

 

Loyola Law School
University Hall
C/o AIS University Advancement
1 LMU Drive, Suite 2800
Los Angeles, CA 90045

The family is having a private memorial service. The law school is planning a celebration of Professor Wells’ life on the LLS campus, and will provide details soon.

Share your remembrance of Professor Wells by submitting a Comment below:

Sheriff Alex Villanueva is Obstructing Attempts to Eradicate Deputy Gangs from the LASD

By Sean Kennedy, Kaplan & Feldman Executive Director, Center for Juvenile Law & Policy

The Los Angeles County Sheriff's Department has tolerated deputy gangs within its ranks for at least 50 years.

Our Legislature recently enacted Penal Code Section 13670 - effective Jan. 1, 2022. The new law requires law enforcement agencies to adopt a written policy prohibiting members from participating in a "law enforcement gang" and authorizes agencies to terminate members who violate that policy. Section 13670 also requires any agency that terminated a member for participating in a law enforcement gang to disclose the reason for the termination to other agencies that are considering hiring the former member. The legislative history reveals that the longstanding problem of "deputy gangs" in the Los Angeles County Sheriff’s Department was the impetus for enacting Section 13670.

The first known deputy gang, the Little Red Devils, started at East Los Angeles station - where Sheriff Alex Villanueva started his career. Records from Sheriff Peter Pitchess's administration reflect that investigators compiled a list of dozens of' deputies with sequentially numbered devil tattoos to ascertain whether they were engaged in misconduct. After this 1973 investigation, LASD leadership stopped compiling lists of internal tattooed groups based on the questionable assertion that such investigations would violate deputies' right to freedom of association under the First Amendment. To this day, the LASD uses this rationale as an excuse for not investigating deputy gangs, even after receiving County Counsel's 2021 memorandum advising that there is no First Amendment bar to banning deputy gangs.

In 1990, the NAACP filed a civil-rights lawsuit on behalf of scores of Lynwood residents alleging that the LASD tolerated racially motivated violence committed by a tattooed group of deputies known as the Vikings. After U.S. District .Judge Terry Hatter characterized the Vikings as "a neo-Nazi, white supremacist gang" that operated under leaders who "tacitly authorized deputies' unconstitutional behavior, the County settled the suit for $9 million. A 1992 commission headed by Judge James Kolts concluded that the Vikings "appeared at least in times past to have engaged in behavior that is brutal and intolerable and is typically associated with a street gang."

In 2012, a sergeant discovered a written creed of a tattooed group of deputies known as the Jump out Boys inside a LASD patrol car used by the Gang Enforcement Team. The creed boasted that the Jump out Boys "understand when the line needs to be crossed and crossed back; and directed members to memorialize deputy-involved shootings in a secret black book, While some members of the .Jump out Boys were terminated, most or all were reinstated by the Civil Service Protection process.

In 2018, several deputies celebrating the end of training were severely beaten by a tattooed group of deputies from the East Los Angeles station known as the Banditos. After investigating the incident, the Inspect General reported, "Substantial evidence exists to support the conclusion that the Banditos are gang-like and their influence has resulted in favoritism, sexism, racism, and violence:” Most recently, deputies from the Compton station have alleged that a tattooed group of deputies called "the Executioners" discriminated against female and African American deputies, engaged in racial profiling, and hosted shooting parties to celebrate deputy-involved shootings. Photos of demonic tattoos worn by the Grim Reapers, the Banditos, and the Executioners are all over social media.

Deputy gangs are in the jails as well as at patrol stations. The U.S. Commission on Civil Rights published a 1999 report on policing in Los Angeles that identified an "organized vigilante group" of deputies known as the Posse. According to the Commission, Posse members assaulted mentally ill inmates in Twin Towers because they opposed reforms to treat mentally ill inmates like patients, rather than prisoners. Then-sheriff Sherman Block lamented, "There are some people in the system who think we are coddling, and by God, they're going to set up their own brand of punishment."

Thirteen years later, in 2012, the Citizens Commission on Jail Violence concluded that tattooed ''deputy cliques" inside Men's Central Jail, such as the 2000 Boys and the 3000 Thousand Boys, "contributed to acts of insubordination, aggressive behavior, and excessive force in the jail for many years."

Citing a lack of evidence that is belied by the historical record, Sheriff Villanueva denies there are any deputy gangs within the department. At the same time, he has refused to investigate alleged deputy gang members - characterizing calls for an investigation as a witch-hunt" motivated by racism against Latinos. It goes without saying that if the Sheriff won't investigate alleged deputy gangs, he will never find any evidence one way or another.

The residents of Los Angeles County have paid a high price for the LASD leadership's failure to address gang culture within the ranks. Deputy gangs undermine constitutional policing, escalate uses of force, and sow distrust between the LASD and the communities they are supposed to serve. By valorizing aggressive policing and deputy shootings, deputy gangs foster an "us-against-them" culture that socializes deputies to view themselves as at war with the communities they are supposed to serve. A compilation of all deputy-involved shootings in Los Angeles County during the last five years reveals that LASD stations with active deputy gangs had significantly more deputy-involved shootings than other stations. The County Counsel estimates that the taxpayers have spent at least $55 million for settlements and judgments related to alleged deputy gang misconduct. Because LASD leadership refuses to investigate deputy gangs, prosecutors do not know and therefore do not comply with their constitutional duty to disclose to the defense that a particular sheriff witness belongs to a deputy gang - a fact that impeaches their credulity and reveals their bias on the stand.

Section 13670 creates an opportunity for the LASD to reverse course and eradicate deputy gangs once and for all. LASD leadership for years has claimed they cannot investigate tattooed groups absent proof that deputies committed specific felonies constituting a "pattern of criminal activity" that support a conviction for a criminal gang enhancement under the Street Terrorism Enforcement and Prevention Act (STEP Act). Not anymore, Section 13670 defines a "law enforcement gang" as "a group of peace officers...who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or principles of professional policing." The definition of a law enforcement gang under Section 13670 is much broader than the traditional definition of a "criminal street gang" under the STEP Act. The new law prohibits a wide variety of gang-related misconduct and unconstitutional policing, rather than just the felonies listed in the STEP Act. These differences between Section 13670 and the STEP Act obviate LASD leadership's past justifications for refusing to investigate and terminate deputies actively participating in a law enforcement gang.

Section 13670 also directs, "A law enforcement agency shall cooperate in any investigation into these gangs by an inspector general, the Attorney General, or any other authorized authority." This provision will require Sheriff Villanueva to change his ways. He has refused to comply with subpoenas to testify and produce records regarding deputy gangs - even after courts have held that he is obligated to do so - and resisted oversight focused on reining in the gang. Sheriff Villanueva must abandon these obstructionist tactics and collaborate with oversight authorities to eradicate deputy gangs from the LASD.