I’m a member of the State Bar of California out of necessity. It’s the only way to be licensed as a lawyer in our state. But the State Bar doesn’t actually exist to serve lawyers. Rather, its main purpose is to “protect the public through licensing, regulation and discipline of attorneys.”
In recent years, however, the California State Auditor has issued a series of increasingly critical reports about the State Bar, depicting it as an organization teetering between incompetent and corrupt.* In particular, a report from June 2015 concluded that the State Bar “has not consistently fulfilled its mission to protect the public from errant attorneys”. (You had one job, etc.)
Against that backdrop, this hardly seems like an opportune time for the State Bar to be trying to lower the passing score of the California bar exam, which is its primary tool for protecting the public against incompetent attorneys.
I encourage Californians—lawyers or not—to participate in the State Bar’s call for public comments about its proposal to lower the passing score of the California bar exam. The deadline is August 25. The comment form is here, and a summary of the findings so far is here.
In 2016, California’s bar-passage rate was 40%, the nation’s lowest. Therefore, our bar exam seems tough relative to other states. But California has something other states don’t: a large set of law schools marketing themselves to lower-performing students, including 42 (!) schools not accredited by the ABA. Of these, 20 are accredited only by the State Bar. The other 22 are completely unaccredited. Graduates of these non-ABA schools can’t take the bar exam in other states, so it’s California or bust.
Though mostly bust. For instance, the LA Times found that nearly 90% of students drop out of unaccredited schools before graduation, never even making it to the bar exam. (Of course, they still end up with gigantic law-school loans, like any other student.) Those who do graduate and take the bar exam tend to do poorly: in 2016, the bar-passage rate for graduates of non-ABA schools was 14%, compared to 49% for graduates of ABA schools. (Stats here.)
The great recession has reduced bar-passage rates at every law school. Law-school applications have dramatically declined since 2008. But the number of law school seats in California has not likewise contracted. (With one notable exception.) Therefore, every law school has had to reach deeper into the applicant pool to fill those seats.
Higher-ranked schools have been able to survive this deeper-dipping without demolishing their bar-passage rates, because their students were already pretty good. Lower-tier schools, however, have seen their bar-passage rates decline more substantially. So for them, lowering the passing score of the bar exam is a lot more consequential—maybe even existential. (See p.10 of the State Bar report.)
Taking this in, one view might be “perhaps this is a sign that these schools aren’t really providing much benefit to students or the public.” Another view, apparently, is “perhaps this is a sign that we need to move the goalposts.”
Let’s not. As the State Bar itself concedes, lowering the passing score “is likely to increase the risk of harm to the public” by admitting a new tier of less qualified attorneys. Bad news for everyone, except writers of lawyer jokes.
* The State Bar even made an enemy of former Gov. Schwarzenegger, who memorably inscribed a coded message in a letter declining to approve their budget bill in 2009.