The Legal Beat
The Bar Exam Is A Barrier To Access For Legal Services And Access To Justice For Many
Posted on Thursday December 02, 2021
Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Joseline Jean-Louis Hardrick back to our pages. Click here if you’d like to donate to MothersEsquire.
The 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 build and improve efforts to prepare law school graduates for first-time bar exam passage in a way that is both equitable and effective.
The report is disappointing but not surprising. For decades, first-time bar passage rates (and overall passage rates) have had stark differences identifiable by race, as reported by Bloomberg Law. The authors argue that the bar exams are not tests of skill or competence but resources. Resources are in high demand among Black and Brown students; many first-generation lawyers may lack financial support from their families and enter law school without knowing how to prepare for the bar exam while in law school. They are also less likely to study full time without working, pay for commercial bar prep courses, and have lower household incomes.
We don’t need new reports telling us what we know (although I understand that studies are useful to provide empirical, as opposed to anecdotal, data). We need new ways to judge the fitness of an individual to practice law and represent individuals.
Of course, we want lawyers who are honest, competent, and mentally well. We trust these people with lives and a significant amount of money.
But it is also well known in the legal field that individual clients (and to a large degree business clients) hire from within their communities. It is also industry-standard to limit marketing avenues to a very small amount of media, and the states’ bar association strictly monitors the language used. That leaves Black, Hispanic/Latinx, and immigrant communities with few resources to access the courts and legal advice essential to their well-being and financial health.
Schools have addressed this issue in part by having part-time programs, scholarships, and pipeline programs. But no one can “practice” law, i.e., represent a client in court and other settings, without a license. And almost all states require bar passage to obtain one. How do we get them through this barrier, given the enormous costs incurred after the enormous costs of law school?
I know many students had to purchase new laptops to use the specific program that the Florida Board of Bar Examiners required to take the October 2020 bar exam. Unfortunately, the program had security glitches, and students reported identity theft used to hack their bank accounts (as one student reported to me). In contrast, others reported similar stories on social media. The student I know already had to put the laptop on her credit card after paying thousands more for the bar prep course and undoubtedly had thousands of outstanding student loans.
These challenges are avoidable if the legal profession focuses on access instead of exclusivity. Lawyers are trained problem-solvers — we need to recognize the inequities within our systems and fix them accordingly.
The bar exam is a challenge of resources and memorization, not competence to practice. Many students struggle with test-taking skills but ultimately make excellent lawyers, advocates, judges, politicians, and the list goes on.
What to do instead?
Allow waiver into jurisdictions once an attorney has shown competence in their jurisdiction.
Allow students to take the bar exam in phases, i.e., hold a First-Year Bar Exam, which immediately follows a students’ completion of their first-year courses. The information is fresh in their minds, and it is one less burden for the remainder of law school so they can focus on skills and experience. With the current setup, students must try to remember topics they learned three (or more) years prior in two months for a two-day exam. There is already a model for this structure. The Multistate Professional Responsibility Examination (MPRE) is held throughout the year and can be taken at various times in a law student’s academic career. And California has a First-Year Law Student Exam.
Include a third-year externship or apprenticeship in place of the bar exam. This practice used to be the norm, but it was also very exclusive. California is once again at the forefront of this idea. If we are truly concerned with legal education creating competent lawyers, then why not create the infrastructure for externships and apprenticeships — to learn the law. With the support of the local Board of Bar Examiners, local voluntary bar associations, government employers, and academic institutions — students can equitably get access to this experience.
Those mentioned above are only a few of the ideas circulating. But the largest barrier by far to innovation in this area is the resistance from lawyers. Those lawyers already admitted to the bar have a tremendous fear (or anxiety) of increased competition for legal services and a sense of unfairness. Some believe that since they had to go through the rigor of a bar exam, others who come after should go through it as well. Although understandable, this sentiment is not based in equity and fairness.
Further, it ignores the enormous need for legal representation in lower and middle socioeconomic classes. That need is currently filled by nonlawyer legal services like Legal Zoom, Avvo, artificial intelligence, and lawyer referral services. Services lawyers also have been attacked as the Unauthorized Practice of Law (UPL).
It’s time for lawyers to take swift and decisive action about how we as an industry will fill the gap of legal services, ensure entry into the profession by those who are truly competent, passionate, and trustworthy (not just good test-takers) and embrace the change that lies ahead.
Professor Joseline Jean-Louis Hardrick is a visiting Assistant Professor at WMU-Cooley Law School in Florida. She teaches Criminal Law and Constitutional Law and assists graduates with bar preparation. She is the founder and director of Diversity Access Pipeline, Inc. This nonprofit organization runs the Journey to Esquire® Scholarship & Leadership Program, Blog, and Podcast to promote diversity and create access for law students.