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State Bar & Bar Associations,
Ethics/Professional Responsibility

Nov. 28, 2023

State Bar’s proposed alternative to taking the bar exam has much support

The statement that “everyone’s against it” is false. The State Bar staff report clearly states that 84% of the public support exploring licensure alternatives.

Claire M. Solot

Co-founder, Legal Services Funders Network

A Nov. 20 Daily Journal article (“State Bar sends Supreme Court another unpopular alternative to exam”) raised many issues and concerns about the State Bar Board’s recent recommendation that a pilot commence to explore licensure alternatives to the current California bar exam. In the interest of space, I have chosen to address a half dozen key items:

Several people quoted in the article raised questions and concerns about costs. As I have shared several times, the Portfolio Bar Exam (PBE) pilot will be funded without using any State Bar funds. As for the ongoing costs, they will not be higher than the standard bar exam, and in fact, may be lower, as no testing venues or proctors (the two largest areas of cost increase) will be needed. Comments about the estimated pilot costs per participant fail to acknowledge that the design work will be able to be used for far more than the pilot. The article lacked information about the estimated cost associated with updating the California bar exam, which is more than $1 million.

Several individuals quoted expressed concerns about the ability to use alternative licensure methods in jurisdictions with large numbers of new lawyers seeking licensure. None of these people appear to have actual experience with or provide data about this issue. The fact is that supervised practice is the predominant method of licensure used throughout the world and many jurisdictions have thousands of supervised licensure participants annually.

Contrary to statements made by some contributors, many of whom have not previously shown involvement or interest in this topic, all of the members of the BRC were invited to participate. Five former members of the BRC stepped up, and continues to volunteer their time and serve on the working group. At least one additional member of the BRC, one of the psychometricians, provided input, along with many well known national testing experts. As for the process of forming a working group, this practice has been used by the State Bar for decades. In fact, over the past 50 years multiple working groups were set up by the State Bar to explore what the essential skills and tasks are that a new attorney should have to meet “minimum competency.”

The statement that “everyone’s against it” is false. The State Bar staff report clearly states that 84% of the public support exploring licensure alternatives. This fact was noted many times during the Nov. 16 Board of Trustees meeting, yet it was not included in the article. As shared with the State Bar Board, the public, the legal aid community, law schools, many attorneys and several bar associations support the PBE pilot, as does the California Access to Justice Commission. The opposition to licensure alternatives is led by attorneys in private practice. Some simply want to limit competition for clients, others acknowledge the bar exam is pointless, but still want the “next gen” to complete this outdated and unproven “rite of passage,” and one is working hard to protect the revenue he earns as the owner of, a bar prep course.

Given the many comments included about the need to protect consumers, I was struck by the fact that the article did not include any information about how supervised practice methods of licensure fare on these issues. The fact is that attorneys who become licensed via supervised practice have lower rates of discipline/misconduct reports. The public is also better protected, as unlike an attorney who becomes licensed via a standard bar exam, PBEs must complete a set number of hours under the supervision of a licensed California attorney, who must complete a supervisor training and confirm the authenticity of the portfolio. In contrast, attorneys who become licensed via passing a written bar exam can literally “hang their own shingle” as soon as they are sworn in. This practice puts the public at much higher risk. The reality is that virtually every other occupation in California that requires a license has a period of supervised practice, including but not limited to doctors, teachers, therapists, engineers, and first responders. Imagine if getting a drivers license only required passing the written exam. How safe would the public be?

The role of journalists and the media is to provide objective and well vetted information. In this instance, the Daily Journal fell short. It is imperative that publications such as the Daily Journal takes steps to ensure that the articles staff write are factually accurate and unbiased. In this case, much more could and should have been done to meet this goal.

— Claire M. Solot

Co-Founder, Legal Services Funders Network


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