Pro Bono work, not an alternative to the bar exam, improves access to justice

The news story in the Nov. 20 Daily Journal about the State Bar’s referring The Portfolio Bar Exam pilot project to the state Supreme Court, that would provide aspiring attorneys with a pathway to licensure other than the bar exam, reports that it is being driven in part by academics who believe that the way to improve access to justice is to have more legally trained people providing legal services. However, the article also reports historical resistance to providing new alternatives to the bar exam, and considerable resistance to this one.

This article reminded me of two articles written in February of 2019 by San Francisco Superior Court Judge Curtis E.A. Karnow, in which he spotlighted barriers to, and among members of, the legal profession. In his second article, Judge Karnow noted a “serious and corrosive divide: that between the profession and the public it is designed to serve.” Daily Journal, “Dissolving legal barriers (Part 2)” Feb. 21, 2019.

Judge Karnow hit that nail on the head when he said: “The great divide between the public and the legal system is founded on the opacity of the legal system, experienced most acutely by those who can’t afford a lawyer.”

In a Feb. 28, 2019 Daily Journal letter to the editor seconding the message in Judge Karnow’s articles, I suggested that we try to “bridge the gap” in available legal services by encouraging us licensed lawyers to do more pro bono work, with the “carrot” being that the State Bar gives us MCLE credit for participation in local bar associations’ legal clinics and other programs that provide legal services to those who cannot otherwise afford them.

In my experience, there are meaningful learning opportunities for lawyers who participate in the counseling and representing of clients that these pro bono programs offer the public, and in my own recent MCLE training I have noticed elements of “competence” and “implicit bias” that regularly crop up in the local bar association work I do.

And, of course, there is always the possibility of “experts” in particular specialties training us relative neophytes in their fields, so that we can “competently” counsel and advise pro bono clients in need of help. As an added incentive for those “experts,” I believe that the MCLE rules provide for multiples of MCLE hours being available to those who prepare and present such training.

In order to better serve the public, why doesn’t the State Bar turn its attention to partnering with the local bar associations, 60 of whom have formally opposed the current proposed alternative to the bar exam, by offering MCLE credit to licensees who volunteer to share their lawyerly talents with those who could not otherwise afford us? Maybe if they did so, more of us would get involved in bridging that gap, and the perceived need for an alternative to the bar exam would lose some of its apparent steam.