May 14, 2021
State Bar is neglecting duty to ensure the MPRE protects public
The State Bar of California’s sale of its ethics examination to the National Conference of Bar Examiners in 1980 and its delegation of the administration of the Multistate Professional Responsibility Examination to the NCBE has had a few significant effects.
The State Bar of California's sale of its ethics examination to the National Conference of Bar Examiners in 1980 and its delegation of the administration of the Multistate Professional Responsibility Examination to the NCBE has had four significant effects: (1) the State Bar no longer meets its Business and Professions Code mandates to assure that the ethics test protects the public, is valid, or that it promotes diversity in the bar; (2) the State Bar no longer assures that testing accommodations that it has granted to test-takers on the rest of the California bar exam are provided to those same applicants on the MPRE; (3) it does not demand that the NCBE apply California bar examination health and safety protocols in administering the MPRE; and (4) the public's right to access to public records regarding the MPRE bar admission requirement has been abrogated.
In response to my recent Public Records Act requests the State Bar admitted that: (1) it has no function or oversight of the NCBE's administration of or the content of the MPRE; and (2), it does not possess any statistics on diversity passage rates by race, ethnicity or gender. Thus, it cannot comply with Business and Professions Code Section 6001.3, which requires the State Bar to determine whether required licensing components have a negative effect on diversity.
The law does not exempt the State Bar's duties regarding determining the diversity effects of the MPRE since that exam is part of the state licensing system. In Section 6001.3, the California Legislature declared that the State Bar's primary function is protection of the public and that "[d]iversity and inclusion are an integral part of the State Bar's public protection mission." The State Bar's March 15 statutorily mandated report on diversity does not even mention the MPRE. The last time the State Bar addressed the MPRE was when it increased the passing score, even though it admitted that it had no data of the effects on diversity of making the MPRE more difficult to pass.
The State Bar now asserts that it cannot and need not comply with a Public Records Request for data regarding the NCBE's administration of the MPRE or upon that test's effects on diversity. The NCBE's corporate counsel asserts that it is exempt from all state public records laws, thus making the MPRE impervious to public or psychometric expert examination.
In Sander v. State Bar of California, 58 Cal. 4th 300 (2013), the California Supreme Court held that the public has a "legitimate interest" in the State Bar's admissions process and in "independently ascertain[ing] and evaluat[ing] that process" through public records requests. Can the State Bar strip the public of rights to bar admissions data by delegating the administration of the bar examination to private and/or nonprofit corporations? Further, can the State Bar abrogate its duties under the Business and Professions Code Sections 6001.1-6065 regarding protection of the public and assurances of fairness and the promotion of diversity in the MPRE licensing exam through delegation of the administration to the NCBE?
The law is unclear. Some cases hold that the transfer of traditional governmental functions of protecting the public are nondelegable (Rob-Mac v. DMV, 148 Cal. App. 3d 793 (1983); Bowman v. Wyatt, 186 Cal. App. 4th 286 (2010)). Courts are also split on whether government agency delegations to private/nonprofits to perform governmental services exempt those companies from Public Records Act requests. Community Youth Athletic Center, 164 Cal. Rptr. 3d 644 (2013); City of San Jose v. Superior Court, 2 Cal. 5th 608 (2017); San Gabriel Tribune v. Superior Court, 143 Cal. App. 762 (1983); California State University v. Superior Court, 108 Cal. Rptr. 870 (2001). If the State Bar's delegation to the NCBE and its abrogation of its statutory supervisory duties is illegal, then it should be enjoined from further using the MPRE for California Bar licensing until the NCBE agrees to be subject to the Public Records Act and to the State Bar's and California Supreme Court's administrative health, safety and testing accommodations.
In addition, the State Bar's delegation of MPRE testing to the NCBE forces bar applicants to risk their health by requiring them to take in-person MPRE exams even though the Supreme Court has ordered online California bar exams during the COVID-19 pandemic. The State Bar justifies continuing an in-person MPRE "[b]ecause of the schedule flexibility allowed applicants in meeting this requirement." However, candidates who have not yet passed the MPRE only have an in-person option in order to obtain a license to practice law. The NCBE denied California law school deans' requests for an online MPRE during COVID-19. Therefore, the Supreme Court should provide bar applicants with other options such as waiving MPRE passage or completing the ethics requirements under the new "Provisional Licensure Program" rather than requiring passage of the MPRE for admission during COVID -19.
If the delegation to the NCBE is found to be legal, then the Legislature should amend the law to prohibit public agencies from delegating traditional governmental safety functions to private/non-profit corporations unless those businesses agree to abide by California public records laws. If the NCBE refuses, the State Bar should, as it does for other portions of the California bar exam, write and administer the ethics portion of the attorney licensing examination just as it did prior to 1981.
The Legislature should investigate the State Bar's violations of the Business and Professions Code and its abrogation of the public's PRA rights to access to data on the diversity effects of the MPRE.
One of the duties of the new State Bar Blue Ribbon Commission on the Bar Examination is to determine whether to delegate all or most bar testing to the NCBE by adopting the Uniform Bar Examination. Can the State Bar legally shield the state's attorney licensing statutory scheme from the Public Records Act by simply delegating all administration to private corporations like the NCBE? The Legislature should determine the legality and wisdom of bar examination outsourcing to private corporations which have economic conflicts of interest regarding administrative costs of providing safety during COVID and exams that do not hinder diversity.