Data Point: The Bar Exam Does Not Protect the Public
If the bar exam protected the public from misconduct, we should expect to see a substantially higher rate of misconduct in states that do not require the exam or whose bar exam is substantially easier
April 27, 2020 at 11:11 AM
6 minute read
As the California State Bar forwards its proposals for how to manage the July administration of the bar exam to the state Supreme Court, the profession is rocked by energetic debates about the merits and demerits of the bar exam. The National Conference of Bar Examiners released a white paper on April 9th asserting that the bar exam "ensures new lawyers meet a minimum standard of competence" and should not be disposed of in light of coronavirus.
The argument we keep hearing is that without the bar exam, the public will be exposed to a deluge of young attorneys who do not have the skills required to practice law responsibly. The public will suffer from the lack of competence. If true, that might be persuasive to many of us, but this argument is not supported by the available data.
An economist would analyze the costs of licensing requirements holistically. She would look at the total benefits to all interested parties of restricting supply (the public's interest in safety, established attorneys' interests in limiting competition, enforcement costs, etc.) and weigh them against the costs to all interested parties of unrestricted supply (the public's interest in price and quality competition, the young attorney's interest in practicing, etc.). Depending on the net costs and benefits, quantified as precisely as possible, she would propose a licensing paradigm that is "Pareto efficient"—one whereby no change could be made to the system that would improve things for one party without harming another.
But lawyers are, perhaps unfortunately, not economists. And our licensure requirements reflect our tendencies as advocates. The one interest consistently articulated in support of the bar-exam-as-barrier-to-entry is that of "public safety". California rightfully takes attorney competence seriously. Attorneys operate in fiduciary roles of the highest sensitivity. And so, we take for granted the position that the bar exam is required to ensure that the public is protected from incompetence.
This argument, which is the most persuasive argument in favor of preserving the bar exam, is unsupported by the data and should be dismissed until and unless the data suggest it. What do the data say, then? They suggest that the bar exam is security theater.
We have detailed information from the State Bar of Wisconsin, currently the only American state to permit licensure via a standing diploma privilege. The Wisconsin Court System maintains a Compendium of Attorney Discipline, a comprehensive database of all attorney discipline within the state. A searching inquiry of the database finds very little to suggest that Wisconsin's liberal diploma privilege results in widespread attorney misconduct. The State Bar of Wisconsin has a membership of 23,400 attorneys. In 2019, only 19 were suspended or disbarred for misconduct, even fewer due to incompetence. Nineteen attorneys out of over twenty-thousand were suspended or disbarred, and even fewer for incompetence, in the state with the lowest barriers to entry to the practice of law. That should suggest that it is not the barriers that protect the public.
California, on the other hand, the state with the lowest bar passage rate and some of the highest barriers to entry, has approximately 259,000 active attorneys. Our most recent data gathered from California, set forth in the 2018 Annual Discipline Report of the State Bar of California, shows that the State Bar recommended discipline in 544 cases resulting in the Supreme Court's disbarment of 131 attorneys and the suspension of another 149. This annual report, rich with detailed figures about the State of California's attorney discipline systems, does not suggest that the public is more protected the more restrictive we are about licensure.
Compared to Wisconsin's per capita rate of suspension and disbarment of .09%, California's per capita rate is over twice that at .21%.
Now, this is a single data point of comparison and we do not have a ceteris paribus, 1-to-1 data set, gathered in a double-blind, perfectly controlled, and oft-replicated environment. But we don't need that level of confidence to cancel the 2020 bar exam. All we need is enough reason to believe that the public will be better off if we cancel the exam than if we don't.
If the bar exam protected the public from misconduct, we should expect to see a substantially higher rate of misconduct in states that do not require the exam or whose bar exam is substantially easier. Given that this is not what we see, the bar exam is constraining the supply of attorneys and therefore fails at its essential, stated purpose of protecting the public.
Is it possible that the bar exam serves some protective function? It's possible. A fuller analysis would look at more states, over more years, and attempt to control for factors like the complexity of practice within each state. Perhaps a regression of bar passage given per capita rates of discipline would shed some light. But that information isn't required to make the weakest version of this claim, which is still strong enough to warrant abolishing the bar exam: that it's patently obvious that the bar exam is not protecting the public from a flood of incompetence. The State Bar of California should bear the burden of proving that their methods of restricting supply justify the enormous costs to the public.
If we think like economists, as I believe we should with regards to this issue, Wisconsin's success at both protecting the public from attorney misconduct and ensuring an adequate supply of new attorneys is an important data point. It suggests that the bar exam is not the thin black line between the public and a deluge of incompetent attorneys. It suggests that 3 years of law school is sufficient to prepare students for the responsibilities of practice. It suggests that the costs of restricting supply may not be justified by concerns about public safety. In California, as I recently cited, the main cost of this restricted supply is borne by the 20 million Californians without access to adequate representation.
At a minimum, we have enough data to justify the risks of an experiment: admitting the graduating class of 2020 to the California Bar, gathering data about their performance as attorneys, providing the California public an infusion of fresh, cost-effective counsel, and requiring the State Bar to justify further restrictions on the supply of attorneys with much more than vague references to public safety unsupported by what data we have.
Brit Benjamin is an adjunct lecturer teaching advanced legal writing and appellate advocacy at Santa Clara University School of Law.
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