Making better attorneys – ‘bar’ none

Dear Readers, The grand legal evil – the bar examination – is anachronistic. Passing the bar only adds a “Fool’s Gold” patina to surviving law school and is a pothole of greater consequence on the road to becoming a lawyer.

Particularly with the first year, law school is a winnowing process for those lacking intestinal fortitude for the law.

By the time a class of law students reaches its third year, 20 to 30 percent has been culled from its initial composition. There is also another small percentage of a class never taking the bar, meaning that the process, even before the bar examination is taken, significantly culls the herd.

Pass rates for the bar examination range from the low 80 percent to the low-to-mid 90 percent of applicants. Of those who fail the first time, the majority who retake it (and some do not) pass on the second attempt. Hence, ultimately, probably only something like 5-10 percent (and maybe even lower) of third year law students ultimately cannot practice law from failing the bar test.

In other words, despite the horror stories about how awful the bar examination is, it is really just a survival process. Life skills are learned to handle stress and budget time. Success breeds a sense of accomplishment and pride.

Nevertheless, the test itself only stops a few from ever being a full-fledged lawyer.

Truth be told, the bar examination has almost nothing to do with professional competence.

Yes, lawyers need a basic understanding of legal principles. Routinely, I lament that I never figured that I would need to know probate law to practice personal injury, but I do.

Yet, courts routinely violate their own rules, statutes can be confounding in their construction, and the law is anything but fixed.

This is why most attorneys focus on specific areas of law in practice rather than the broad survey that is the bar examination.

However, every lawyer every day (even a trial attorney, like myself, who has to have almost a “junkyard” knowledge of the law) tells a client or potential client – “that is not my area of practice …”

Cramming for 10 weeks or so is also not “how” we practice law. If we have a question, we read the statue, read its comments, or consult with an expert compilation treatise. After that, maybe we read a couple of cases and, only then, are we prepared to answer a legal question.

We most certainly do not have all of this knowledge packed into our brains to regurgitate on command. And, to the extent we do give a prompt answer, our responsiveness is a reflex of years of practice and rote as opposed to stuffing our brains with legal trivia.

There is nothing magical about a “bar examination.” Up until around the end of the 19th Century or so (in other words, only about a 100 years ago or so), membership in the bar came from “practicing” with another mentoring attorney who then sponsored your application to become a full-fledged lawyer. It’s sort of an outgrowth of the old “guild” master-apprentice relationship common at the time. This is how Abraham Lincoln won his legal spurs.

In Wisconsin, passing the bar is still not a prerequisite to practice. New Hampshire allows law students to demonstrate professional competence through practice instead of passing a test.

The old approach had its problems. Discrimination (class, race and gender) made the guild of lawyers a closed one. Bar examinations promised openness, opportunity and blind acceptance on merit. Some of these goals have been accomplished.

If you compare a local bar association’s “class” picture from the 1950s with one today, it is has become less patrician, less male, and less white over the years.

However, as many are starting to realize, law schools have become bar-prep factories, teaching to that Holy Grail examination instead of preparing young minds and souls for the actual challenges of practicing law. The old “internship” process may have had its merits.

States such as Arizona and Iowa are considering following in alternative paths to licensure. Deans of law schools are questioning the correlation between a single test and professional competence and success.

Eliminating the bar, then, might lead to better-trained attorneys.

Law schools could get back to preparing students for the real world and young lawyers could learn from working with mentors. Becoming a lawyer would become a test of competence and not just passing a written test. We would all be better for this.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

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