Page 10 - Pierce County Lawyer - January February 2024

EDITORIAL
Toward a Better Future
The Bar Exam has failed all of us. I say that with confidence derived from research done over decades, from conversations with professors, Bar leaders, exam
scorers, those who wrote the test, and from three years of work done with the Washington Bar Licensure Task Force. If our goal is to protect the public and to ensure competent lawyers, the Bar Exam has done nothing to help us. But I am happy to share the news that a better future is on the horizon.
The Washington Bar Licensure Task Force (WBLTF) was convened over 3 years ago under Chief Justice Deborah Stephens, and carried on under Chief Justice Stephen Gonzalez. The team dove deeply into the history of the Bar Exam, compiled decades of research about its effectiveness, and had numerous conversations with everyone from law students to judges to the National Conference of Bar Examiners (NCBE). The proposal I briefly summarize below was announced and presented to the court in October 2023 and we are now
seeking feedback from lawyers and the public.
I’d highly recommend reading the full proposal but, in summary, the WBLTF has recommended updating our current Bar Exam to reflect best practices and use existing, successful programs in Washington to create additional pathways to licensure that require prospective lawyers to demonstrate practical skills and experience before becoming licensed.
So why should you all support this? Together these proposals give the State of Washington and us, the members of the Bar, more input into and authority over who becomes licensed in this state while creating an opportunity to track and improve the profession over time. Most importantly, the best available data indicates that these proposals will better protect the public and better ensure competent lawyers while improving access and equity in the legal profession and the justice system as a whole. That’s a lot, but I can back it up.
Historically we have simply trusted the NCBE to create the Bar Exam and followed their rules on when and how the test is implemented. There have been a number of versions and alterations, but the main thrust of the Bar Exam has been consistent. Unfortunately, our trust in the system has been misplaced. The best available data, gathered by LSAC which creates and runs the LSAT, indicates that the Bar Exam has no correlation to effective lawyering. Looking directly at lawyer discipline, a comprehensive study was done that tracked the careers of lawyers who graduated from the last four states
to switch to mandating the Bar Exam. The study tracked lawyers from five years before and five years after the Bar Exam became mandatory in each of the four states (instead of letting anyone who graduated law school practice law). For the first ten years in practice there was no difference in discipline between lawyers who had to pass a Bar Exam and those who didn’t. Only after twenty-five years in practice did a difference develop, and then it was only one percent. More recently a study was done analyzing the effect of lowering the passing score on the Bar Exam. The study revealed that while lowering the passing score had a substantial impact on the racial equity gap in Bar passage, it had no impact at all on lawyer discipline or malpractice. In fact, a lower Bar pass score was actually correlated with fewer complaints against lawyers.
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
The proposals are:
1) Update to the NextGen Bar Exam as soon as NCBE makes it available.
2) Use APR6 and APR9 to allow law school graduates to become licensed by demonstrating their skills through supervised practice.
3) Allow law students to graduate 'practice ready' by enrolling in coursework designed to teach practical skills and by completing 500 hours of supervised legal work under APR9.
4) Create an optional standardized curriculum for the APR6 law clerk program that allows graduates to demonstrate legal knowledge and allows those who complete it and 500 hours of supervised APR9 work to graduate 'practice ready.'
5) Begin tracking and analyzing data that will give insight on how best to ensure competence and protect the public throughout a lawyer’s career rather than only at the moment of admission.
6) Lower the time requirement of reciprocity with other states on admission, to one year in practice in good standing.
7) Lower the pass score of the Bar Exam from 270 back to 266.
10 PIERCE COUNTY LAWYER | January/February 2024