Trying to make sense of the bar exam debate

In October 2020, to reassess attorney licensure, the California Supreme Court established a Blue Ribbon Commission (BRC) on the Future of the California Bar Exam. Since then, I have attended meetings, reviewed proposals, and documented efforts to explore new methods for licensure. Licensure reform is not new, California's first licensure statute in 1851 required candidates to present evidence of moral character and complete a rigorous examination in open court. California introduced the written bar exam in 1919, and since then, licensure processes have evolved significantly.

The BRC's Journey

The 19-member BRC, consisting of representatives with diverse expertise and affiliations, met with experts and reviewed many licensure models. The vote on exploring alternative pathways to licensure was not simple or quick. None of the motions, whether to conduct one, explore one, or not explore one passed.

In April 2023, the BRC issued its report, which did not include details about what an alternative method of licensure could entail. Responding to this, the Board of Trustees (BOT) asked all interested members of the BRC to draft a detailed proposal over the summer. By August, the Working Group, who partnered with the county's leading experts on attorney licensure, had a draft PBE proposal. They met with constituents to answer questions and the updated PBE recommendation was supported by the Committee of Bar Examiners (CBE) and the BOT. In December 2023, the PBE proposal was submitted to the court for final approval.

The Court's Response

The court's October 10 order surprised many, with regards to the timing and content. The court, without identifying any supporting research or data, concluded that the PBE was not a valid way to access minimum competency to practice law. The court did not review the exam-only method in the same manner. In the order, the court approved the BRC's recommendation for a new California Bar Exam, and made numerous edits and suggestions for further exploration. In contrast, the court declined the PBE recommendation and did not ask for further modifications or suggest additional steps to address its concerns.

In declining the PBE, the court cited procedural and substantive issues. The court contended that current statutes and rules only recognize the General Bar Exam (GBE) as a licensing method, yet the BRC's charter specifically encouraged considering new methods. 

A PBE Pilot is the Best Way to Address Questions the Court and Others Have About Offering Alternative Methods of Licensure in California

Alex Chan, one of the CBE representatives to the BRC, and the current Chair of the CBE in his dissent to the BRC Report and Recommendation, made several compelling arguments to allow a PBE pilot to proceed, among them, that "Incorrect assumptions lie at the core of every failure. When we fail to challenge false assumptions, we risk losing it all" and "Despite all the shortcomings, the supervised practice program may have a place in our not-too-distant future." Following the approach used in Oregon, conducting a pilot would allow California to collect data, see if the court's concerns are true problems, adjust the PBE terms accordingly and determine if it should be offered as a licensure option wide-scale.

Financial Impact, Public Trust and Attorney Pipelines

The bar exam involves significant costs for applicants, who spend thousands of dollars on bar prep courses, exam fees and logistical expenses associated with taking the exam. Applicants who plan careers in public interest law, government jobs or working for small law firms get little to no financial help covering these costs and most do not get job offers until after the exam results are released. Offering a PBE option could alleviate these financial burdens, allow for immediate employment after graduation, and help meet the public's legal needs, especially at legal aid organizations and in underserved areas.

When the PBE recommendation was circulated for public comment, over 87% of the comments submitted by non-attorneys supported the PBE. In contrast, bar exam tutoring companies and certain attorney groups voiced opposition to the PBE, fearing increased competition or revenue loss. However, maintaining public trust and meeting California's legal demands are more critical than protecting the oppositions' interests. Alternative licensure methods like the PBE could attract diverse, service-minded attorneys to rural and low-income areas, and help ensure that there is a robust "pipeline" of new attorneys available to fill positions as attorneys who are baby boomers retire.

Moving Forward

The court's hesitance to approve the PBE pilot raises several questions: Why did it wait ten months for a decision? Why didn't the court provide guidance for the PBE, as it did for the GBE? Why did the court not follow the approach used by justices in other states, who approved alternative methods of licensure and have seen them successfully implemented?

As for next steps, the BOT and CBE should clarify the CBE's endorsement of the PBE, which might prompt the court to reconsider its October order. The Legislature and court should also address procedural concerns, updating statutes to allow flexibility in licensure. There is a willing coalition ready to refine and implement a pilot PBE, if needed.

Conclusion

In a recent Daily Journal article, California Senate Judiciary Committee Chairman Tom Umberg emphasized the importance of reviewing licensure based on how well it protects consumers and provides as good or better quality legal service. Senator Umberg also emphasized the importance of securing the public's trust. California has a choice: embrace new pathways like the PBE to ensure a robust and responsive legal profession, or continue with the exam-only method, potentially widening access gaps and eroding public trust.