As many of you know, a couple of weeks ago I was in Sacramento, CA, finally taking the CA bar exam, all part of my new UK-US oriented business model. This was a weird experience in many respects. One, is that overwhelming majority of Bar takers are 24, in other words, my oldest daughter’s age. They all type on laptops and are very purpose-filled. In the corner they have a corral for handwriters, invariably those few 40+ oddballs, yours truly including. That’s a combination of out of state and foreign attorneys, career changers, perennial bar failers and, I imagine, disbarred attorneys. My overall impression in a few words? I should have taken it when I was 25, when I first went to law school in the US.
This is, in all respects, for the kids. And it’s designed to evaluate kids and it is applicable to the kids. A middle aged person finds the experience all of: needlessly demeaning, overwhelmingly gruelling (the MBE portion), and puzzlingly primitive (essay and especially performance test portion). It was also very, very cold, and I was sat under a massive ice-cold air emitting fan, that made all my papers fly up and swirl, and two days later I was down with a flu. As a person who does practice law, even be it just one area of it, quite successfully, and among all the hype surrounding the CA bar lately (pass rate is now below 50%) I am most bewildered by how irrelevant it seemed.
The overall idea ostensibly is to set the bar (pun intended) at some minimal level of legal competence and intellectual performance to protect the public from incompetent lawyering. While I used to dismiss the recent complaints about the CA bar in the media and the CA Supreme court fight over passage rates as the moaning of the intellectually inferior, now that I have taken the exam, I must say I agree there is room for controversy. With its stated purpose in mind, I think the exam is not fit for it — not because of some level of difficulty though, which I did not find, but rather it its very basic structure and content.
The point of the exam is NOT to re-equalize the various sources or levels of required legal education or re-test or re-visit people’s law degree results. While in fact, the exam sort of feels like that — an all-in-one law school exam of mid-difficulty level, with two important caveats. Firstly, it includes subjects many of us did not study in law school, including California specific law, or for instance I never studied wills and succession. So ultimately most people are forced to study all or huge areas of the law specifically for the exam, no matter where they came from or where they are going. Secondly, and more disturbingly for me, it DOES include subjects we all studied in law school, some of us, alas, 20 years ago. While it feels like maybe just one more law school test for those who are just graduating from one – 24-year olds — it seems a bizarre return-to-the-classroom experience for older people, and a bizarre requirement for those of us who already practice law and have done in intervening years. Often, a completely different and specific area of it, of which we know everything but it is not even ON the bar exam.
I know most US lawyers are exempt from the MBE – multiple choice – portion, I wasn’t because I was there as a foreign lawyer. But my quibble is not really with the MBE specifically, even though I found it incredibly gruelling for the middle-aged person. The problem is not the substance of the questions, or not them being the multiple-choice test — I have been in a US education system long enough to tolerate those – but rather, suppose you are exposed for 34 different distinct fact patters per hour, for five hours. So every 90 seconds you have to read and analyze a new fact pattern. To me, this is an enormous brain-f***, essentially an epilepsy-inducing flashing of information and facts in my tired middle-aged brain. No one ever has to do it in real life, and real life does not require this.
More so, it discriminates against older people because our brains are just not the same — with 20+ more years of information in them, we simply cannot sustain this assault of an irrelevant data stream for this length of time. I know that kids practice for the bar by doing thousands of those — well, I am guessing if you have done 3000 you have seen, in some form them all, so you LEARN the answers. But those of us who have no time, room or form for this, are at a disadvantage, regardless of whether we know the underlying law or have skills to apply it. If any of this is like a law school exam, it is a law school exam on drugs — most of law school exams, by the way, are open book and there is usually plenty of time.
Foreigners’ chances are statistically hopeless at the CA bar, yet in that respect I am not a foreigner really, this is just a technicality — aside from my UK LLB, I had studied half-a JD in US law schools in 2000-2003, before moving to the UK, and then recently in 2015-2017 I have done an LLM worth of credits, comprising again of JD courses. So I have taken pretty much ALL of the bar-relevant legal subjects at reputable ABA law schools of at least the 2nd tier, achieving at least a C or better. (Except Wills and succession which I did not study ever, but it is simple).
Let’s see. I studied Civil procedure at Tulane in Fall 2000 (B+, I think?), Criminal law TWICE in Tulane and at Golden Gate (in CA) in Fall 2000 and Fall 2002, both times a C, and then I had to sit and pass it twice in England as well. Criminal procedure just recently at Temple – either a C+ or B-, I think. Contracts — I was top of my class at Tulane in 2000, and prior to that during my MBA in Baruch i studied International trade and investment law, also an A. Then again, twice passing at something like 60 in the UK (I had to repeat the whole 1st year of LLB because I failed UK public law then, but passed everything else twice). Contracts and Criminal are similar in the UK and the US.
So are Torts. I passed Torts in Tulane in 2000 with a C I think, and then in the UK at least once as well. I had a B in Real Property at Golden Gate – Fall of 2002, and at least a 60 in it in the LLB in England. I studied Evidence in the Fall of 2015 at Temple with a very well known professor and got a C+ I think. Last but not least, Constitutional law twice, B in the Fall of 2002 at GG and also a B at Temple in Fall 2015, with celebrity professor Laura Little. In the Fall 2015, I attended poorly (flew back to the UK three times during the semester), was distracted and wrote most of the exam based on my common knowledge and experience rather than study. A person involved in even quasi-legal or political discourse for 25 years would know some Consitutional law. Clearly I do. (as it turned out, my worst subject in the bar exam was, definitely, Con law). I took Trusts only in England but was very good at it. Plus, I dealt with property a lot and had myself been a Trustee of a land trust.
But, by and large, I have academic credits, in quality and breadth, similar to those of a mediocre graduate of a decent US law school, perhaps 10-15 years after graduation. Trusts are not a mandatory subject in US law schools. Plus, of course, I am from England — an English speaking country which invented the system of law in question. So that is also quite different form being from, I don’t know, Ukraine. But WHY are we all suddenly taking an exam in something we thought we were done with, in many cases, 10, 20 years ago?!
I am an immigration lawyer. A good one. I know immigration law. I am up to date with it. In 18 years since I first entered law school, I had no need for any of the legal subjects they teach in it. There was no immigration law as a subject in any of my prior studies — law schools routinely don’t teach it at all. Most immigration lawyers both sides of the pond have self-taught it to themselves. In the UK, Cilex used to run a very successful examination course in immigration law, to make up of unis’ failure to teach it. I had to take their exam once, in order to convince OISC that I know things (the modern HJT-ran OISC Level 3 certification exam is very similar to the CILEX exam, actually). I had taken US Immigration law at Temple only recently during my LLM, in order to freshen up — it is only during the Trump presidency that the public interest in it rose to the level that warrant running a course in it, and even so it was taken half by foreign LLM students than by locals.
I am doing well in the immigration law, I am in my 40s, and I have zero interest in practicing any other areas of the law. (In fact, I have SOME interest in family law and am thinking of expanding to child custody and care proceedings against a state, but rest assured the Bar doesn’t test that either). I can see how an attorney must be able to spring to someone’s criminal defence ad-hoc, (tell the client to shut up, plead not guilty and advice them to urgently seek a more competent lawyer). Any Law and Order viewer can do that. But I can see some public interest in it. But WHY do I have to prove competence in resolving contractual claims for manufacturing equipment under UCC, or running product liability class action claims? It is absolutely NOT possible to accidentally end up in a position when you HAVE TO act in these areas of the law, if you never intended and do not wish to.
If the purpose is — as it can ONLY be, for a licensing body – to protect the unsuspecting public against unscrupulous or incompetent lawyering, then why do we not look at what sort of lawyering does the public at large actually require? I can assure you that those who buy manufacturing equipment are sophisticated enough that they are able to seek and choose an attorney competent and reputable in that area. The unsuspecting public does not buy manufacturing equipment. So does the Bar does the public at large a service or an injury when it makes practitioners in those fields actually required by it, jump through unimaginable hoops with the UCC and all, and yet fails to test even the basics of most of the law the public needs help with?
Criminal defence aside — apart from what one might think from the media, most people would never need a criminal lawyer – what sort of lawyer most people DO need? An immigration lawyer. A family lawyer, in re divorce or child custody. A tax lawyer maybe. A lawyer in landlord and tenant dispute – OK, the Bar does sort of test property, but it focuses on administration or large estates, historic easements and rule against perpetuities, NOT on any practical aspects of tenant repairs or eviction rights. Those are the lawyers the people need. Rest assured, the Bar does NOT make any effort to filter for skills in those areas.
I can sort of see why – there are highly specialized areas. To be a good immigration lawyer, you have to be one to the exclusion of all other fields, pretty much. Very few people make that commitment. Landlord-tenant relations in residential leases are often codified on a local level for policy purposes, they are not really subject to historic common law anymore. Child custody and especially care proceedings are not a popular specialization because there is not much money in it. This sort of practice is usually undertaken by solo mavericks. But the public NEEDS us.
The public needs these mavericks more than it needs competent ambulance chasers or UCC wizzes. Supply and demand in commercial law will indeed create a situation in which only competent mergers and acquisitions lawyers will be employable. Coca-Cola is not going to hire you unless it itself, not the Bar, made sure you know what UCC is about. Even if I knew ZILCH about the UCC or corporate governance, there would be no risk to the public. Let’s look instead at what legal services are most prone to abuse, or incompetent and unlicensed and unscrupulous practice?
Although the Bar does not test it at all, it can rest assured that I am not endangering the public with my knowledge of immigration law. But many people do, both unregulated and, for the most part actually, licensed attorneys. Having gone through all this process, it is very easy to become a licensed attorney knowing ZERO about immigration law. Or child custody, or landlord-tenant disputes. Or personal tax audits. How is the public to know any better? And if there is no way it can, then what is the point?
I know what the Bar will say to this – it will say, well, Professional Responsibility rules require one to have competence. So anyone practicing in the area in which they have none, will break them and be subject to discipline. This is a self-defeating argument – if that is so, then why can I, a successful immigration lawyer, also not be absolved from knowing how to resolve tomato-shipping disputes between farmers and merchants, or deal with railroad shipping restrictions, if I only promise to never incompetently practice in those areas?
I will be 44 years old by the earliest time I can now be admitted to the Bar, that is, unless I have to resit it – and I have zero inclination for anything other than immigration law, and (a big maybe) child custody. People would pay me to resolve their immigration cases because I am good at it. Why on earth would I do something I know nothing about, and who will ever hire me to do that? Is the risk to the public really big enough to torture me with the UCC or even the Dormant Commerce Clause? The chances of me resolving tomato disputes someday, are roughly equal to the chances of me conducting the Philadelphia Opera.
So instead of forcing people like me to take all this time away from their practice, be it present or future, of changing lives for the better, in order to re-learn the UCC and other irrelevant areas of the law, why not admit people based on verified qualifications, just as we admit them to SIT the exam based on those? Let this “law school exam on drugs” (supra) be an over-arching test for those who do not have the qualifications required, such as, autodidacts or those studying in judge’s chambers or whatever? For the rest of us, if we trust bar-passing people implicitly not to practice incompetently in those vital areas of the law the Bar does not test anyway, why not trust all of us not to practice incompetently, if we are trustworthy in the first place?
The Bar exam has centuries old history, but the very purpose of it historically was, to assess the law knowledge needed for the practice of law, and appearance before the courts, by those who studied at general purpose universities or independently. During the founding period, where people like Alexander Hamilton and Aaron Burr became lawyers, there were no law schools to which the assessment of that competence could be outsourced. People became learned through whatever learning they could manage, and then yes, there needed to be some sort of barrier of entry to the profession. They studied for the bar, because this was WHEN they studied law.
Fast forward to present day, when people already graduate from, and are examined by, a multitude of prescribed programs and pathways — what is this exam other than a process to second-guess law schools? It tests for nothing that the law schools don’t, except mysteriously and unrealistically, unlike most US law school exams, it is not open-book. Unlike the years of legal education all of us underwent, it also places unrealistic and ridiculous amount of importance on a one-day/one-place scenario, in which everything you learned and then forgotten over the years has to somehow simultaneously come into focus in that one highly charged and concentrated moment of time, regardless of your personal ability to deal with stress, you being ill, or, in my case, a flight attendant having dropped a suitcase on your head the day before.
Instead the public would be best served by the focus on, and enchantment of, individual area of the law practice certificates. Identify the areas of the law the public does need protection in, and get people to test IN specifically for those, and not at “basic” but on at least a mediocre level of competence, at that. Leave the general competence exam for those who want it. Many of the people most disadvantaged by the Bar exam process are those who would go on to practice very narrowly in one of those public interest fields, and will do so in underserved communities and on low-cost or non-profit basis, and surely many would welcome certification specifically in their chosen area.
In the UK, for instance, most of the immigration work today is undertaken by those – often people with law degrees – who have qualified under the OISC scheme, rather than generally as solicitors. In fact more solicitors are hopelessly bad at it, than aren’t. Similar popular scheme exists for property conveyancing, and CILEX is pushing to raise the profile and application of its similar alternative schemes under Criminal law or Family law practice certificates. I believe they also have employment law. (Cilex also has an immigration route). Their idea is very interesting in principle, and is based exactly on that — it does require legal education but lets you license IN for a specific area of transactional legal practice.
In the US, however, almost all legal work is to be done by attorneys qualified through the general bar admission scheme, regardless of the actual area they work in. There is indeed a scheme for immigration representation by non-attorneys, but it applies only to businesses recognised by IRS as non-profits. (I must note for the sake of fairness that property conveyancing in the States is already undertaken by real estate agents, who are licensed through their own schemes in most states, and it does not require an attorney in the first place).
The origins and the idea of the bar exam are not really in the protection of the public. They are in the protection of the elite – the court system, the judges, the existing lawyers – from the unwashed, so to speak. As a barrier of entry to that effect, it is largely obsolete in the US, where the law schools are separately licensed and in their operation, and in their cost itself, effect a barrier of entry like no other. I could see how maybe it would make some sense to have an exam on court procedure or court advocacy skills before the right of audience is given, but the bar exam makes no such attempt, or in any event much less of an attempt than law schools do, most of whom do have mock courts, advocacy skills programs and the like. The bar exam today tests for nothing at all above or beyond what law schools do.
What I say above should not, in any way, be taken as me siding with the UK ludicrous solicitor/barrister distinction, because it is failing very, very badly in the UK. It produces a class of entitled halfwit twats in wigs, half of whom are thick as bricks, and, while they are assured in their intellectual superiority, tend to know nothing at all specifically. They are useless and most of them today fish for public access, direct access, and all sorts of other schemes that actually allow them to give mundane advice and transactional assistance to the public, something they used to be prohibited from. That is simply because otherwise the demand for their “advocacy” is falling as a brick, as effective assistance for quasi-lawyer professionals, including that which eliminates the need for court disputes in the first place, is on the rise (supra), as well as proliferation of quasi-court systems, eg specialist adjudication tribunals (infra), where, again, most of the legal services to the public have shifted and the quasi-lawyers are allowed to act.
So the solicitor/barrister system is not the way to go, but this phenomenon also underscores the very important trend: most of the legal practice is transactional, It does not have anything to do with ever entering the courtroom or participating in trials. At the start of my evidence class in Temple in 2015, the professor asked cheerfully how many students hope to never enter the courtroom, and almost everyone (except me, probably) raised their hand. So pretending that we test future lawyers on some sort of litigation or courtroom advocacy skills today, would be so silly that no one is even doing that.
Moreover, again, the trend in the UK is that we have separate court systems for immigration, social benefits, employment, etc, as well as property, and quasi-professionals licensed in those fields specifically are allowed to act in those tribunals. Similarly we have immigration courts in the US, as well as BIA hearings — these are not general application courts, and those people who do manage to get licensed through the non-lawyer non-profit scheme are able to act for clients in them. Hearings in specialist tribunals happen when something went wrong, in other words, when a bureaucrat – a non-lawyer – had applied the law wrongly to some facts, and you are there to point out the error.
These systems are not law-making, in sense that the cases adjudicate the matter at hand only, and do not create binding precedents (except in the UK, Upper Tribunal precedents are binding on First tier Tribunals, although not general courts). While I think of myself as a transactional lawyer and hate even those, these again have noting to do with general right of audience in general jurisdiction courts. Almost no one will ever need more than this, because, again, most of the good legal practice is in clients avoiding having to be in a court in the first place.
The last but not least argument is that, what if we admit that the bar exam is just some generalised IQ test to make sure that complete idiots do not become lawyers? This is again defeated by some measure of these people’s prior performance in law schools, one should think. There are studies, apparently, that show that bar exam results track LSAT scores (in other words, a generalised comprehension test results attained before law school admission in the first place). I am not sure correlation is not mistaken for causation here — smarter people tend to have higher test results, but that does not mean the tests are similar.
At one point in my past life, when I graduated with a UK LLB, I lived in Northern Ireland, and took a Northern Ireland solicitor admission test (there is no analogue of it in England). I found the test very curious, as it seemed to guard exactly against general stupidity, rather than ask about any specific legal knowledge. There was no legal knowledge at all. Most of the takers apparently found the “math” part of it the most challenging, which I dreaded until I discovered that it involved not knowledge of actual advanced math, but making of complex everyday calculations such as, compounding interest or converting square areas. Apparently most recent graduates cannot do those things. A calculator was given. Most of it was not about calculating, but knowing what exactly to calculate to solve a problem. needless to say I got something like a perfect score. It made up the points I was lacking from having the barely passable GPA in my LLB, and I was offered a place on a solicitor training course. I declined, having changed by mind and moved back to England.
The CA bar exam in fact is not a difficult exam, but it is legal knowledge heavy — you are expected to memorize and know from memory all of the legal principles in something like 16 areas of the law. Ability to apply them, which it is supposed to test, is quite useless if you simply do not know them. So no, it is a test in mnemonic ability way more than it is in skill. In that purported sense, a LSAT or GRE or an IQ test, something like Cattell B, would serve the purpose better or more efficiently — and can I get a pass then, as a Mensa member? The thing is, the way the bar exam is written now, if you do not know that CA extends exception on admissibility of specific instances of prior conduct to domestic violence cases, no amount of IQ or reasoning ability, or, for that matter, advocacy skills, will help you. This is simply silly.
A person in their 40s has less time to study, more distractions, and less brain power to stuff in the data they do not need, never did and never will need again. In that respect the bar exam is very, very annoying to us. I did read all of a book purported to be a universal bar preparation all subject outline, and thankfully, glanced over some flashcards I found online on CA evidence distinctions. So i did know about the domestic violence thing. In fact I felt that I knew legal answers to all of the essay questions, although I did miss one UCC provision I swear I never heard of. Apparently, when a party is entitled to request a reasonable assurance of performance, the other party has 30 days to respond. Not sure i needed that, since I argued in my answer that request for assurance was not reasonable. I did also wrongly put the market participant exception in both the dormant commerce clause analysis and equal protection analysis, although it had only belonged in one of them (sorry, professor Little!). But overall if these were law school exams, they’d be solid D/C/probably B, in case of PR essay, passes.
That being said, I emerged in panic on the first day — it seemed too easy, while the internet suggested that it must have been way, way harder! – and had a panic attack at lunchtime on the second day, not because I did not know things, but because my ageing brain could not withstand this amount of information flashing before it. So I do not really know how far I got, and I am somewhat prepared for a second take — after all, until this one I had not idea what the ting was even like.
Then, I stumbled on a forum online on which the CA bar takers, mostly the recent-graduate kids, throw around their impressions of the recent exams. After reading a few pages, I emerged with a sense of myself being at least a Justice Cardozo. Sorry kids, but most of you seemed to not have any idea what the questions were even about, and do not even get me started on a performance test — none of the forum posters seemed to grasp how to apply the given cases to the problem. So maybe the bar does in fact test for something? I feel this is the battle of generations. We wait and see now.