Bar Exam Woes : Almost-Lawyer Hopes His Suit Will Pass Test

In New York, Sanford Margulis is a lawyer. But he doesn’t live in New York. He lives in San Diego.

And in San Diego, Margulis is a bellhop.

Margulis, 45, will have to cadge a couple of days off from his bosses at the Holiday Inn at the Embarcadero late this month when, for the 8th time in 10 years, he attempts to pass the California Bar exam.

The many previous failures--some by only a few points--have humiliated and infuriated the father of two, a former Buffalo, N.Y., prosecutor who came west 10 years ago in search of a fresh start in a warm climate.

His marriage is a wreck. He’s embarrassed to tell his hotel co-workers about his background. Without a license to practice law, most of the cases Margulis handles these days are suitcases. But the Committee of Bar Examiners can’t stop him from representing himself.

So he is. With a vengeance.

Margulis filed a lawsuit last month in U.S. District Court asking that his best recent score--on the test in February, 1985, when he came within 37 points of the 1,260 necessary for passing--be reappraised and that he be granted a license to practice law in California.

Designed as a class action, the suit also seeks court orders directing the bar examiners to revise testing and grading procedures that Margulis contends have made the California bar little more than a crapshoot for aspiring lawyers.

“The bar exam is really no test of legal knowledge and experience. If it was, I would have passed a long time ago,” the rumpled Margulis said last week, sitting on a torn vinyl couch in his estranged wife’s small North Park apartment.

“I view the California law exam as another form of the California Lottery,” he said, straining to find humor in the pathos of his circumstances. “I call it ‘The California Lawyer License Lottery.’ ”

Complaints about the California bar exam have mounted over the last few years as the failure rate has soared. Nearly 72% of test-takers failed in February, the most recent administration of the exam. For the last five years, the failure rate has hovered near 50% for the July tests, when recent law school graduates typically take the exam, and near 70% for the February tests, when there is a heavier concentration of repeat test-takers.

Analysts attribute the high flunk quotient to two primary factors. First, unlike most states, California has an “open door” testing policy--graduates of law schools not accredited by the American Bar Assn. can take the California test. Second, there are more and more applicants like Margulis--those who have taken the test in the past and failed.

“We have people who have taken the exam 40 or 50 times,” said Steve Klein, a Santa Monica testing expert who has studied the exam for the State Bar.

It’s widely recognized, too, that the California bar exam is the toughest legal licensing test in the nation.

“It is a fact that it is harder to get by the California bar. Maybe the other states have lowered their standards,” said John Stokes, a Humboldt County lawyer who is chairman of the Committee of Bar Examiners of the State Bar of California, which administers the test.

“I can’t see any advantages to lowering it,” Stokes said. “Having observed the pool of applicants just below the pass line, I wouldn’t want to hire them.”

Like other critics, however, Margulis suspects the high failure rate has a more sinister cause than a simple desire to maintain standards.

“The exam is a sham,” he said. “It appears to be an obstacle designed to keep applicants out of the California bar.”

Margulis makes the case in his lawsuit that the test is largely irrelevant in determining whether an applicant is capable of practicing law in the state.

He notes that large portions of the test--the standardized Multistate Bar Exam, most of the essay questions and the case studies--do not require answers based specifically on California law, calling instead for the application of general legal principles or fictional legal precedents.

“It does not test what it’s supposed to test,” Margulis said. “(That) really means the license examiners have licensed people who are incompetent.”

According to Klein, however, the test is not designed to predict an applicant’s likely success in legal practice. Rather, he said, it aims to screen out would-be lawyers “who do not have some of the basic skills considered necessary for practice.”

Klein said a 1980 study found, nonetheless, that success on the bar exam correlated well with success in two days of simulated legal practice. But Margulis wonders why lawyers like himself, who have passed the bar and practiced in other states, should have so much trouble passing California’s test.

“It’s very frustrating to use my knowledge and find my knowledge doesn’t have much application to the exam,” he said.

Margulis’ grievance with the bar examiners is fueled by what he considers their high-handed disregard of disgruntled test-takers’ concerns.

The bar committee, he noted, has no mechanism for appealing test scores, despite the subjectivity inherent in grading the essay portions of the test. It will not make available the “correct” answers to the essay questions, he says, and instead hands out a selection of acceptable answers. And there is no way of challenging the answers to the standardized, computer-graded multistate portion of the test, either, Margulis complains.

According to State Bar rules, in fact, license applicants who fail the test must make an appointment to travel to Los Angeles or San Francisco to review their multistate test results, and then may not make any notes or take more than three hours to look over the papers.

The grading process, Margulis contends, should be opened up, with lawyers-to-be granted the due process rights central to so many of the legal battles they will fight when they obtain their licenses.

“It’s arbitrary. Many people get similar answers to the successful applicants, and they don’t pass,” Margulis says. “So the point is, let’s have a hearing about it. But they refuse to give anybody a hearing about it.”

Yet the Committee of Bar Examiners insists that its grading system has been devised to make scoring as objective as possible, while still giving borderline test-takers a second and third chance to pass.

Panels of experienced test graders meet to analyze the basic ingredients that comprise passing answers to each exam’s essay questions and to come to a consensus on how each question will be scored, Stokes said.

“In that process, I’ve become acutely aware of those answers considered to be not quite passing,” he said. “I really don’t think any of these people objecting to the high failure rate would pass those papers either.”

Tests that come within 50 points of the 70% passing score get a second reading. Tests within 20 points of passing after the second review get a third read. And that, Stokes said, is all the re-examination the examiners can handle.

“We’ve got 12,000 applicants a year,” he said. “The appeal opportunity has to be in the process itself.”

Margulis will not be so easily dismissed. He has demonstrated both his iconoclasm and his abilities before. He quit the law school at the State University of New York in Buffalo after one year, angry at the faculty’s decision to establish attendance requirements. Four years later, after working as an apprentice in several law firms, he passed the New York bar exam on the first try.

He could go back to New York and work as a lawyer. But after 10 years in California, Margulis does not want to leave. Instead, he has taken jobs as a reservations clerk, a locksmith, a security guard, a driver--and now a bellhop. Employers, he said, have been reluctant to give him paralegal or professional work, because as a lawyer, he’s overqualified.

“It’s made me very bitter and very sarcastic,” Margulis said, his eyes brimming with tears. “It’s affected my married life. My wife and I have agreed to separate, because of a bitterness she can’t handle anymore.”

So now, he studies alone each day for the exam later this month, outlines a strategy for his lawsuit and makes plans to enlist state legislators in a campaign to overhaul California’s lawyer testing laws.

The battle is just beginning.

“After years of trying it their way, the bar examiners’ way, I decided I was getting further and further from my goal,” Margulis said. “I decided I had no choice.”