Test takers.

Few attorneys think of ourselves as powerful members of an exclusive cartel, but that’s what we are. The global coronavirus pandemic, and the needs created by resulting shifts in how we live, work and earn, have catalyzed a radical reassessment of practices taken for granted for too long. The bar exam, which secures the interests of our cartel, is ripe for a change.

Lawyers and law professors understand the bar exam is more rite of passage than test of competence. Now, it poses an unnecessary barrier to entry for third-year law students who are burdened by shelter-in-place requirements, financial pressures and psychological stress. Rather than protecting the public, the bar exam constricts the supply of attorneys, fueling the crisis of access to justice plaguing California’s most vulnerable. When we eliminate the bar exam, the remaining measures the State Bar uses to filter for competent, moral attorneys will better protect the interests of the public than keeping the exam does. Eliminating the exam is simply the right thing to do.

At best, the bar exam is a poor filter for competence and a rite of passage for young lawyers. At worst, it is an insidious form of security theater whose ostensible, noble purpose in protecting the public conceals the actual role the exam plays: protecting the financial interests of a cartel of established lawyers by constraining supply (and thus driving up the hourly rate we can charge). The latest research indicates that “over 20 million Californians—at all income levels—lack access to legal services.” Letting in thousands of legally educated, practice-trained young people willing to work for less would be a boon for the public and increase price and quality competition within the profession.

Now is the time to let go of this bad proxy, as coronavirus has made administering the bar exam impractical, unsafe and even less predictive of a lawyer’s ability than it usually would be.

The emergency diploma privilege is already the subject of petitions across California (and other states), letters to Gov. [Gavin] Newsom and California State Bar Admissions Board urge the revival of the policy, previously employed after the 1906 earthquake and during World War II. A diploma privilege would authorize recent graduates to practice law without sitting for the bar exam. The developing movement in support of a temporary diploma privilege does not go far enough: the exam should be eliminated permanently.

California’s metaphorical bar is higher than any other state: the July 2018 pass rate was 40.7% overall. The bar exam is so tangential to the practice of law that graduates spend three months and thousands of dollars preparing to cram and regurgitate a fantasy body of law in a test-specific style. Law schools are concerned with preparing students to practice law with conscience, and the bar exam has little to do with the real-world demands of practice. Few licensed attorneys would disagree, so why are we so protective of this dysfunctional tool?

The solution to this mess of inefficiencies and perverse incentives is simple: cancel the bar exam. Temporarily, while instituting an emergency diploma privilege, and then permanently, if there is no resultant decrease in the quality of membership of the California bar. Canceling the July administration and allowing for licensure-by-diploma will empower thousands of young lawyers to prove their competence where it counts: in practice. It will inject a cohort of competitively priced practitioners into the legal marketplace, something California’s population desperately needs.

It is the least disruptive, most humanitarian path forward for these graduates, and it’s an opportunity to improve our institutional practices. Let’s treat this as an experiment, and have the State Bar gather data, tracking metrics such as client complaints, sanctions and other indications of overall attorney competence, and compare them to past cohorts who were licensed by exam.

Will these young attorneys, licensed by diploma, serve their clients just as well? We have every reason to expect that they will. California’s historical experience with the emergency diploma privilege led to no discernible increase in client complaints or malpractice suits. This is not surprising, because the bar exam is a relatively recent development in the history of legal services, and just one small part of our overall system for ensuring attorney competence.

Those who agree with my logic but remain uncomfortable with my proposal should consider if they might be suffering from effort-justification bias. We studied, struggled, passed and celebrated, so it must be the best way. If the bar exam is abandoned, will our efforts have been in vain?

It’s natural to feel this way, but to act on it would be for our cartel to wrongfully deny these 2020 graduates entry to the profession. Instead, we should rise to the occasion, as Californians repeatedly have done, by taking radical steps toward more compassionate and efficient governance. An experiment in removing barriers to entry would serve the justice-starved public far more than the bar exam does, and it would raise the bar for professional organizations across the country struggling with how to adapt in a pandemic-shaken world.

Brit Benjamin (Courtesy photo)

Brit Benjamin is an adjunct lecturer teaching advanced legal writing and appellate advocacy at Santa Clara University School of Law.