Page 23 - 2024 March April Magazine

Subject:
RE: Toward a Better Future
By Mark H. Adams
Jordan Couch’s recent Editorial (Jan/Feb 2024 Pierce County Lawyer Magazine) disparaged the traditional Bar Exam, apparently reflecting the views of the Washington
Bar Licensure Task Force, of which he is a member. He said that “the Bar Exam has no correlation to effective lawyering,” explaining that passing the Exam does not mean one is
less likely to be subjected to disciplinary proceedings or malpractice claims. While we might look at some lawyers
and wonder how on earth they passed the Bar Exam, I disagree that disciplinary action or a malpractice claim means that a particular lawyer is professionally incompetent or unable to represent clients effectively. They are two separate issues.
Moreover, this paragraph really stood out: “The Bar Exam is
a failure because historically it was never intended to ensure competence or protect the public. Its purpose was to keep people of color, women, and poorer white men out of the profession of law. The ABA’s push for a mandatory Bar Exam in every state didn’t begin until 1914, when the ABA accidentally admitted three Black lawyers. After kicking them out, the ABA convened a meeting on how to keep the profession ‘pure.’ In 1950, when advocating for a mandatory Bar Exam right as the first set of Black students were set to graduate law school, one [unnamed] state senator said on the [unnamed state’s] senate floor that it was necessary to prevent ‘negroes and undesirable whites’ from entering the profession.”
I respectfully disagree that the Bar Exam was devised to exclude people of color, women, or poor white men from
our profession. My evidence is not the hateful words of some obscure state senator in 1950 (although it’s true that some Southern Democrats, not involved with the Bar Exam, were racists, e.g., U.S. Senators Eastland, Stennis, Russell, and Byrd - a Klansman; Governors Wallace, Faubus, and Maddox). Instead, I’ll cite an article by Professor Margo Melli, Associate Dean at University of Wisconsin School of Law, and at the time of her article the Chair of the National Conference
of Bar Examiners: Passing the Bar: A Brief History of Bar Examination Standards (1990). And I will note that if one purpose of Bar Exams is to exclude women, it’s done a lousy job. Not only was Margo Melli a distinguished female law professor, and not only did her comprehensive article on the
history of Bar Exams omit any mention of this alleged purpose, the ABA reports that the percentage of lawyers who are women has risen to approximately 40 percent; I estimate with a fair degree of confidence that the percentage of women lawyers is even higher in Washington. The Bar Exam has not excluded all these women from our profession. The ABA also reports that 21 percent of lawyers are people of color; the Exam has not excluded them, either.
Back to Professor Melli’s article, which is easily findable online. Professor Melli reported, contrary to Mr. Couch, that the
Bar Exam finds “almost universal acceptance as the main determinant of competence to practice law.” (emphasis added). “It is not surprising, therefore, that the legal profession has devoted considerable thought and energy to studying, reviewing, and implementing the process.” She explained
that the ABA and the Association of American Law Schools developed in 1958 a Code of Recommended Standards for
Bar Examiners, stressing the importance of giving a written examination using hypothetical fact situations requiring
essay answers. Standard 16 on “Purpose of Examination” recommended that the exam questions should “test the applicant’s ability to reason logically, to analyze accurately
the problems presented, and to demonstrate a thorough knowledge of the fundamental principles of law and their application.” This seems an apt description of how a lawyer should be trained to think about a case. The test was clearly intended to assess lawyer competence, not to exclude any category of applicants. Is the Exam a perfect vehicle for testing competence? Of course not. But to conclude that its purpose is to exclude certain applicants on the basis of race or gender is, I believe, simply untrue.
Whether the Task Force’s recommended changes to the Bar admission process will result in a “Better Future” for our profession, I leave for others to draw their own conclusions.
Sincerely,
Mark Adams, Gig Harbor
Mark H. Adams is a retired Court of Appeals Div. II Commissioner and former TPCBA Trustee
March/April 2024 | PIERCE COUNTY LAWYER 23