Bar exam is a barrier to accessing legal services and accessing justice for many

Ed. Remark: This is the last part of a series of articles on maternity in the legal professions, in partnership with our friends from Mothers Esquire. Welcome Joseline Jean-Louis Hardrick back on our pages. Click on here if you would like to donate to MothersEsquire.

Recent statistics from the AccessLex Institute show a clear difference in performance on the bar exam based on race and socioeconomic status. The report, which took three years to collect, analyze, summarize and interpret, discusses the experiences and outcomes of first- and second-time New York State bar candidates. AccessLex Institute worked with the New York State Board of Law Examiners to finalize the publication and provide recommendations to the legal education community. Specifically, they guide legal educators to expand and improve efforts to prepare law school graduates for the first bar exam in a manner that is both fair and efficient.

The report is disappointing but not surprising. For decades, first-time bar pass rates (and overall pass rates) have seen marked differences identifiable by breed, as Bloomberg Law reports. The authors argue that bar exams are not tests of aptitude or competence, but resources. Resources are in high demand by black and brown students; many first-generation lawyers may lack the financial support of their families and enter law school without knowing how to prepare for the bar exam while studying law. They are also less likely to study full-time without working, to pay for trade bar prep classes, and to have lower family incomes.

We don’t need new reports to tell us what we know (although I do understand that studies are useful for providing empirical data, as opposed to anecdotal data). We need new ways of judging an individual’s ability to practice law and represent individuals.

Of course, we want honest, competent and mentally healthy lawyers. We trust these people with lives and a significant amount of money.

But it’s also well known in the legal arena that individual clients (and to a large extent business clients) hire from within their communities. It is also industry standard to limit marketing opportunities to a very small number of media outlets, and the State Bar Association strictly monitors the language used. This leaves black, Hispanic / Latin and immigrant communities with few resources to access the courts and legal advice essential to their well-being and financial health.

Schools have solved this problem in part by offering part-time programs, scholarships, and pipeline programs. But no one can “practice” law, that is to say, represent a client in court and in other contexts, without a license. And almost all states require a passage to the bar to obtain one. How do you get them past this hurdle, given the huge costs incurred after the huge costs of law school?

I know that many students had to purchase new laptops to use the specific program required by the Florida Board of Bar Examiners to take the October 2020 bar exam. Unfortunately, the program had security concerns and students reported identity theft being used to hack their bank accounts (as reported to me by a student). In contrast, others have reported similar stories on social media. The student I know once had to put the laptop on her credit card after paying thousands more for the bar prep class and no doubt had thousands of overdue student loans.

These challenges are avoidable if the legal profession focuses on access rather than exclusivity. Lawyers are skilled problem solvers – we need to recognize the inequalities within our systems and correct them accordingly.

The bar exam is a challenge of resources and memorization, not of skill to practice. Many students struggle to pass the tests, but ultimately make excellent attorneys, lawyers, judges, politicians, and the list goes on.

What to do instead?

Allow waiver in jurisdictions once a lawyer has demonstrated competence in their jurisdiction.

Allow students to take the bar exam in stages, that is to say, hold a first-year bar exam, which immediately follows students’ completion of their first-year courses. The information is fresh in their minds, and it is less of a burden on the rest of the law school so that they can focus on skills and experience. With the current setup, students should try to remember topics they learned three (or more) years ago in two months for a two-day exam. There is already a template for this structure. The Multi-State Professional Responsibility Exam (MPRE) takes place throughout the year and can be taken at different points in a law student’s academic career. And California has a freshman law student exam.

Include a third year internship or apprenticeship in place of the bar exam. This practice was the norm, but it was also very exclusive. California is once again at the forefront of this idea. If we are really concerned with legal education creating competent lawyers, then why not create the infrastructure for internships and apprenticeships – for learning law. With the support of the local bar examining board, local voluntary bar associations, government employers and educational institutions, students can have equitable access to this experience.

The ones mentioned above are just a few of the ideas that are going around. But by far the biggest obstacle to innovation in this area is resistance from lawyers. Lawyers already admitted to the bar have a tremendous fear (or anxiety) of increased competition for legal services and a sense of injustice. Some think that since they had to go through the rigor of a bar exam, others who come after should take it too. While understandable, this sentiment is not based on fairness and justice.

Moreover, it ignores the enormous need for legal representation in the lower and middle socio-economic classes. This need is currently being met by lay legal services such as Legal Zoom, Avvo, artificial intelligence, and lawyer referral services. Service lawyers have also been attacked as an unauthorized practice of law (UPL).

It’s time for lawyers to take swift and decisive action on how we, as an industry, will fill the legal gap, ensure entry into the profession of those who are truly knowledgeable, passionate and trustworthy. (not just good candidates) and embrace the change that’s coming.

Professor Joseline Jean-Louis Hardrick is Visiting Assistant Professor at WMU-Cooley Law School in Florida. She teaches criminal and constitutional law and assists graduates in preparing for the bar. She is the Founder and Director of Diversity Access Pipeline, Inc. This non-profit organization operates the Journey to Esquire® Scholarship and Leadership Program, Blog and Podcast to promote diversity and create access for law students.

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