Should a Bar Exam Be Required for Practicing Lawyers?
by Joshua Nave
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Let's start with India, where a little over a month ago the Bar Council announced that starting with this year's class, all new lawyers will be required to take a national bar exam. Previously, all that was required to practice law was a law degree and membership with a local bar group. Predictably, this decision has not gone over well with most of India's law students and several have filed legal challenges alleging that the decision is in violation of the 1961 Advocates' Act. The students aren't alone in objecting, either. Several local bar groups have voiced opposition to the policy.
Closer to home we bring news from the other direction. In Indiana, a former convict who taught himself law while in prison is suing the state to let him sit for the bar exam without attending law school first. According to a suit filed by Clarence Carter, the state's rule requiring examinees to have a law school degree violates his constitutional rights to due process and equal protection. It seems that Mr. Carter, who has received his bachelors degree since being released from prison, has applied to 13 law schools and been rejected by each. He argues that a candidate that passes the bar exam without a law degree is more qualified to work as an attorney than a candidate who graduates from law school but fails to pass the exam.
These two stories raise an interesting question: Is the bar exam a suitable tool for screening would be lawyers? If so, why should a JD be required? If not, why have a bar exam?
Indiana argues that law school teaches skills and values needed to be a lawyer, but this argument rings hollow in light of recent stories about the failure of law schools to prepare students for the practice of law. Furthermore, bar associations across the country already have a “values” or moral fitness component to membership. In the case at hand, even if he were to pass the bar exam, Mr. Carter would need an exemption before joining the bar due to his felony conviction. Certainly most people would have trouble passing the bar exam without first attending law school, and in states that do allow for an alternate path to the bar exam only 19 percent of such examinees passed in 2009. But that's hardly an argument for refusing to let self educated applicants take the test. If anything it shows that even if the law school requirement were lifted, law schools would still retain relevance.
In a recent blog posting, author turned lawyer Elizabeth Wurtzel questioned the value of the bar exam. In it, she included a list of prominent lawyers, past and present, that failed the bar exam. Heading her list is Kathleen Sullivan, former Dean of Stanford Law and current named partner at Quinn Emanuel. Sullivan's career in academia includes a stint as a professor at Harvard Law and authorship of a major textbook on constitutional law. After leaving academia she took the bar exam in preparation for entering private practice and failed it.
Other notables that failed the exam according to Wurtzel include: Current and former First Ladies Michelle Obama and Hillary Clinton, President Franklin Roosevelt, California Attorney General Jerry Brown, former California Governor Pete Wilson who, along with the Mayor of Los Angeles Antonio Villaraigosa, needed four tries, and former Supreme Court Justice Benjamin Cardozo who needed six attempts.
It's difficult to claim that the bar exam is a suitable mechanism for screening potential lawyers when such well respected lawyers, judges and politicians are unable to pass. Wurtzel herself sparked some controversy after holding herself out as a lawyer despite failing the bar exam. She passed it on her second try.
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