Lower the Bar?

To be licensed to practice law in California, a person must pass the bar examination administered by the Board of Governors of the State Bar. About one-fifth of all of the would-be lawyers in the United States take the bar exam in California. But it turns out that California has one of the highest passing requirements of any state--much higher than New York, Massachusetts, Pennsylvania, Texas or the District of Columbia, for example. And it also turns out that the state bar cannot demonstrate that the high passing grade means a higher caliber of lawyers here than elsewhere.

The argument for having licensing exams in the first place is to protect the public from incompetent practitioners. But there is no evidence that members of the New York bar or the District of Columbia bar are any less competent than members of the California bar, despite the lower passing grade in those jurisdictions.

Nor is there any clear correlation between an applicant’s score on the bar exam and his skill as a lawyer. Lawyers are called on to perform many more tasks than reading cases and engaging in legal reasoning, talents that the bar exam tests. Why, then, is the passing grade in California so high that more than 40% of first-time applicants--including sizable numbers from prestigious law schools--fail the test?

When this question was discussed at a Board of Bar Governors meeting last month, several attorneys said that it was necessary to hold down the number of lawyers in order to keep their incomes up. That’s a much different reason than protecting the public from incompetent lawyers, and in another context, it might be called a conspiracy in restraint of trade, which is illegal.

Stuart Singer, one of 11 members of the Committee of Bar Examiners (who actually oversee the test) told us that the only reason for setting the passing grade so high in California is “historical.” In other words, that’s the way it has always been done. While historical reasons are not irrelevant, neither are they persuasive in the absence of other justifications. One might say that California’s passing grade is at the right level and that the other grades are too low. But there is no factual support for such an assertion.

In addition to the other problems with the high passing grade, the current requirements of the California bar has a decidedly detrimental impact on minority applicants. At present, only 20% of black applicants and 35% of Latino applicants pass the California bar exam on the first try. But if the Pennsylvania, Texas or District of Columbia standards were adopted in California, 50% of blacks, 70% of Latinos, 80% of Asians and 90% of Anglos would pass the first time out. This would not be a case of lowering standards to help minorities. It would recognize the social need for more minority lawyers. If people are good enough to practice law in those areas, why aren’t they good enough to practice law in California?

When the Board of Bar Governors meets Saturday in San Francisco, their agenda will include a discussion of the bar exam. To be sure, this is a complicated matter. But the bar governors ought to be thinking about why the passing grade in California is so high and whether the public’s interest would be better served if it were brought into line with other comparable states.