California

First Things First: Passing The Bar Exam

To do that? Law schools need to instill in students the ability to write clearly.

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The California Bar has released the results of the July 2023 bar exam. The results? Only 51.5% of the July test takers passed. Not a stellar pass rate. Assuming all the other requirements have been met (e.g., a positive moral determination, passage of the ethics exam, and not on the list of deadbeat parents), 3,888 will be admitted to practice here. More than 7,500 sat for the exam, and two-thirds were first-time takers. Less than 50% of the 356 attorneys who sat for the attorneys’ exam passed. The mean scaled MBE score in California was 1389 compared with the national average of 1405. Again, not a stellar showing.

So, what, if anything does the pass rate say about the previous reduction of the cut score to 1390? Will there be a push for a further reduction in that score? What do you think? I think so, especially among the California state bar accredited law schools that do not have the imprimatur of the ABA, and whose first-time bar takers had a pass rate of only 33%. The repeat taker pass rate was even more dismal with a pass rate of slightly under 16%.

A friend of mine tutors law school graduates who flunk the exam once and even twice. What’s the problem? He said it’s the writing skills or lack thereof that prevent bar passage. They don’t know how to write, they don’t analyze the facts properly, they don’t understand the call of the question. Can they learn it in bar review? Maybe, maybe not, but bar review doesn’t help those who don’t already know how to write. His tutees pass the multistate but not the essay portion. And we all know, or at least we should, that it’s the written word persuasively stated that judges consider. While oral arguments can make a difference in certain cases, the hard truth is that judges often tell attorneys that unless they have something additional to say that is not already in the pleadings, they should sit down. Has that ever happened to you?

So, what’s the answer? I think legal educators need to step up and instill in students the need to be able to write clearly. How do they do that? By having students write and write and educators comment and comment. Will schools do that? What do you think? Law schools are cash cows, especially if affiliated with a university or college. What’s the incentive to push law students to succeed? Tuition money is already in hand. Young, unsophisticated law graduates don’t necessarily understand that student loan repayments start nine months after graduation, whether they’ve passed the bar or not.

California is considering an alternative pathway to licensure, but it faces an uphill battle, if comments on the proposal are any indication. Of the 2,814 submitted comments in California, only a quarter voiced support of the bar’s Portfolio Bar Exam proposal, while 4% are in favor of the proposal with some changes. As Reuters notes, “the most common arguments among the 1,989 comments opposing the Portfolio Bar Exam were that the proposal “dumbs down” the requirements to become an attorney and that it would erode public protections.” And public protection is top of mind for both the bar and the California legislature, especially given some of the antics of California lawyers over the past few years.

Starting next year, Oregon will offer an alternative method to licensure.  It’s called the Oregon Supervised Practice Portfolio Examination (the SPPE), and it’s a way to establish the minimum competence to practice law. Candidates who successfully complete the SPPE don’t have to pass the MBE and the PRX, but they still must satisfy all the other requirements in Oregon’s Rules for Admission.

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Are you familiar with the mushroom management style? Considering complaints emanating from the end of the line for Stroock & Stroock & Lavan, it sounds like management was schooled in that, at least for firm staffers. Essentially, the mushroom management style has three parts: first, employees are kept in the dark, then management poops all over them and, in a final blow, the employees are canned. The only upside in this style is that, depending on the particular facts of the ending, WARN provides employees with notice and may provide 60 days of severance.

Apropos of Joe Patrice’s column about whether Nixon Peabody got a retainer for its representation of former president Donald Trump, most lawyers know that if the retainer is not sufficiently large to cover at least a fair share of the work to be performed, the client will eventually have the upper hand as to whether to pay for the work that is not covered by the depleted retainer. Retainer replenishment is requested, but not always provided, and so, the lawyer/firm is stuck until relieved by the court. That’s not a slam-dunk, even if “Mr. Green” has not shown up. Given the former president’s well-known practice of stiffing lawyers for work performed, why would any firm want to agree to represent him? This will not be a situation where a Biglaw firm will be covered in glory; “ignominy” might be a better choice of word. Waiting for “Mr. Green” while representing the former president may be like “Waiting for Godot.”

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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