Jun 01, 2018
Lawyers Both New and Old
Jun 01, 2018
By Thomas S. Brown
This month’s President’s Message, crafted after the Warriors eliminated the Houston Rockets in game seven of the Western Conference Finals, touches on the declining bar pass rate and highlights a few changes to the Rules of Professional Conduct.
As the hiring partner for my firm’s San Francisco office, I have spent a considerable amount of time over the past few years interviewing law students at some of our nation’s premier law schools, including several Bay Area schools such as Stanford Law School, Berkeley Law, and UC Hastings. I have been impressed with the students’ outstanding qualifications and diverse backgrounds. One of the first questions I ask is whether they are enjoying law school and why they want to pursue a career in law—fair questions for any prospective employer. The overwhelming response is that they are indeed enjoying law school, finding it both challenging and rewarding. As for their reasons for becoming a lawyer, most of the students have embarked on a career in law for a specific purpose, either because they have experienced or witnessed a legal injustice, have worked in the legal field following undergraduate school, or have a background in an area such as business, intellectual property, or insurance where obtaining a law degree makes professional sense. They strike me as dedicated, hard-working students who are capable of becoming excellent lawyers.
California State Bar Pass Rate: That’s why the recent news from the California State Bar about the pass rates from the February 2018 bar examination is surprising and disappointing. Only one-quarter (27.3 percent) of applicants passed the California General Bar Exam, the all-time lowest bar pass rate according to records going back to 1951. Although California is generally believed to have the highest “cut score” and is considered one of the hardest bar examinations to pass in the country, the Golden State is not an outlier. The average score on the multistate bar exam, the portion of the test used in every state, fell 1.3 points from the previous year; that’s the lowest average score in the past ten years and the fourth straight year that the February test results have declined.
There have been multiple reports from law school deans and other educators who contend that the bar examination is too restrictive and unfairly prevents qualified individuals from pursing a career in the legal profession, particularly women and minorities. Despite the requests to reduce the cut score, the California Supreme Court declined, noting that the pass rate has fluctuated over time and recent drops appeared to be part of a "broader national pattern." Critics have noted that lowering the bar pass rate is counterintuitive to improving the quality of our state’s lawyers.
Following the decision by the California Supreme Court, the California State Bar “commissioned the first-ever comprehensive series of studies of the bar exam, including a review of the passing score and whether the content of the bar exam is appropriate to test the knowledge and skills needed by entry level attorneys. Based on the information available, no changes to the passing score or content of the exam were adopted.”i The State Bar has now embarked on a more thorough endeavor, and has published a Request for Information for a third-party vendor to conduct an attorney job analysis study designed to focus on the following issues:
- Provide a documented link between exam content in relation to current and changing legal practices;
- Inform the development of a minimum competence definition for standard-setting assessment;
- Assess the adequacy of the current exam format (including but not limited to multiple-choice and constructed response, scoring weights associated with each component) in testing the requisite knowledge and skills of entry-level attorneys; and
- Provide a blueprint for future development and selection of exam topics and question itemsii.
Whether this study will actually provide meaningful guidance to improve the bar pass rate and ensure that California attorneys are adequately prepared to effectively represent clients is an open question.
Although the MCBA does not have a formal program designed to assist those sitting for the California bar examination, we do have a Mentor program for newer attorneys. We encourage veteran attorney members with ten or more years of practice to become mentors to our newer attorneys, with the goal of providing them much needed practical knowledge and skills needed by entry-level attorneys. If you have any interest in participating in the Mentor program, please contact me or one of your board members.
New Rules of Professional Conduct: Several changes to the Rules of Professional Conduct, effective November 2018, are also worth noting for practicing attorneys. These include:
- Expansion of the ban on harassment and discrimination to allow the State Bar to open an investigation without a previous civil finding and to include express prohibitions on harassment and retaliation. This is a significant departure from the existing approach as the State Bar, which has extremely limited investigative resources, can now discipline an attorney for harassment or discrimination without any final determination in either an administrative proceeding or lawsuit.
- A stricter rule against sex with clients, banning it unless there was a prior consensual relationship.
- There is also legislation pending (AB 3249) that would change the designation of us attorneys from members to “licensees.” This may not be a significant change, but I’ve never thought of myself as a “licensee,” but rather, an attorney who both represents clients and acts as an “officer of the court.”
A special thanks to all who attended our last two membership meetings, which included the District Attorney Candidates Forum in April and the Panel on the Update on Gender Inequality. The responses from those who attended the meetings have been positive and we look forward to this summer’s events, which include Professor Rory Little’s update in June on this term’s cases before the United States Supreme Court and in July, Legal Puzzles for Lawyers and Courts from the Gig Economy. We look forward to seeing you all at the meetings this summer.
iState Bar of California Releases Results of the February 2018 Bar Exam, News Release, State Bar of California (May 18, 2018).
iiJob Analysis Study, Request for Information 2018, State Bar of California
Thomas S. Brown is Of Counsel at Foley and Lardner LLP where he is a member of the Firm’s Government Enforcement Defense & Investigations Practice Group. He is President of the Marin County Bar Association and earned his B.A. from UC Berkeley and J.D. from the University of San Francisco School of Law.