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Three Things No One is Talking About With Bar Exam Passage Rates: The Real Ramifications of Lower Bar Passage Rates

published November 17, 2017

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Summary: What do low bar passage rates have to do with law schools?
Three Things No One is Talking About With Bar Exam Passage Rates: The Real Ramifications of Lower Bar Passage Rates
  • Lately, the importance of the bar exam has come under fire.
  • Meanwhile, the ABA has served notice to several law schools whose students have difficulty passing the bar exam.
  • Law students of diversity are hard hit by low bar exam passage rates.
  • The problem has become so pronounced, some law schools are threatened with closure.
  • At the same time, others believe the bar exam is partly to blame for keeping diversity out of the practice of law.

It is ironic how we find out about the importance of bar exam passage from law students and almost never hear about that same importance from law schools that are charged with shaping these students into future lawyers.

For the truth is, when a law student claims their life all but depends on passing the bar exam, it is not hyperbole; it is more likely pure fact.

All a person needs to do is type suicide and bar exam in a Google search, and the headlines will read:
  • Recent law grad commits suicide after failing bar
  • Reflections of a bar exam tragedy
  • Didn’t pass the bar, and I pretty much want to die
  • Suicide: The Death of a Law Student

Yes, it is troubling. Moreover, no doubt reflective of the state of the law practice today, what with the profession’s competitiveness, demands, and expectations, particularly when a student attends a top-tier law school.

While there are online publications that give well-intended advice that states the law exam “…is not worth your life,” there are more than enough struggling post-law students who could not disagree more.

Law school is no joke. Like cancer, a traumatic injury, parenthood or winning the lottery, law school can bring out the best and the worst in any of us. Law school represents three years of hand and brain wringing, a future of substantial student debt, and yet at the same time, utter elation once a former law student finds themselves inside the hallowed halls of a top-level BigLaw firm.

Of course, none of this can happen – at least not the part about joining a top-level BigLaw firm – without that former law student passing the bar exam. Until that point, all bets are off, leaving fear and fret in our prospective lawyers that no matter how well they did in law school, if they do not pass the bar they conclude, “I might as well die.”

However, that is the law student’s point of view. They are the ones we are most in communication with when it comes to law school and bar passage. Who we rarely hear from are the law schools, and how great the implications can be if they produce an entire class that scores poorly or fails the bar exam.

In many instances, they are in more trouble than the law student who blows his or her first, second, third and subsequent attempts at the bar. Unlike the law student, law schools with poor bar exam passage rates are frowned upon and held up to task by anything ranging from law-related publications to simple word of mouth.

Moreover, while their reputation may take on chinks and scratches to their scholastic armor from this or that source, the one big bombshell law schools with poor bar passage rates should truly fear is the American Bar Association (ABA).

Due to poor bar exam results, the ABA, which sets the academic standards for law schools can discredit a school to the point that it is no longer deemed viable, and as a consequence, must close down.

Revoking accreditation is at the heart of contention for many underperforming law schools in the US. Essentially, they have been put on alert by the ABA for producing classes of bar exam-failing law students. The situation is critical and has everything to do with a law school’s survival.

While the law student says, “If I do not pass the bar, I might as well die,” the law school under ire by the ABA says of its graduating class, “If they do not pass the bar, we as a school might as well die.”
  1. Why the law school fuss?

While we know how mediocre associate hires with poor or failing bar exam scores can wreak havoc on a law firm’s reputation, we may not know what the repercussions are for a law school that produces students who are unable to pass their bar exam. Well, in short, those repercussions are severe.

Similar to law firms, law schools also have their reputations to uphold. Moreover, in light of poor bar exam results, those law schools may as well kiss their statuses goodbye.

While the ABA has historically warned schools whose graduates produce subpar bar exam passage rates, the schools have lately begun to push back, stating in some cases that their incoming students have the highest credentials of many competing law schools.

Whether or not this is true, according to the National Jurist, the ABA staunchly stands by its decree outlined in 2008 by Standard 301(6) which came under the Bush Administration. This standard was put in place to make bar exam passage more challenging for law students. In that decree, two bar passage benchmarks highlight this change:
  1. Over a five-year period, 75 percent of the graduates who sit for the bar must pass. 
  2. The school’s first-time annual bar passage rate is no more than 15 percent less than the average first-time rate for graduates of ABA-approved law schools in the same jurisdiction.

As the National Jurist states: “At the time it was passed, critics felt Standard 301(6) would be ‘a tsunami to the African American community.’ Some argued it would result in the closure of three to five law schools, all with large minority enrollments. However, for the first six years, that did not come to pass, as some schools simply admitted fewer minorities and applications overall continued to climb.

However, in 2011, the number of US law school applicants dropped 10.7 percent, followed by another 13.5 percent drop in 2012. In 2013, there was another 12.4 percent drop.

These declines lead to many law schools forcing themselves to accept students with lower LSAT scores to maintain their enrollment. Of course, some believe this lowering of LSAT scores directly led to a drop in national bar passage rates. 

As a consequence, the Class of 2014 graduating law students reported a 74 percent pass rate, which was four percentage points down from the previous year. Subsequently, the bar pass rate for the Class of 2015 dropped to 70 percent and continued to decline from then on to 69 percent for the Class of 2016.

What are the consequences of law schools losing their accreditation?

Without a doubt, those schools which have been red flagged by the ABA for poor bar passage rates risk a myriad of issues that can result in their doors closing.
  1. Enrollment will no doubt go down.
  2. Law firms will no longer hire graduates of the school(s).
  3. Revocation of accreditation, which means the ABA and other legal associations will no longer recognize the school as a credible learning institution.

Without a doubt, these warnings from the ABA have placed the law schools in a precarious position. It is not enough to graduate prospective lawyers. Law schools must also ensure and provide the tools for their former students to draw on for them to pass the bar and flourish in their careers.
  1. Why the law firm fuss?

The legal field is an elite field. Why else would our parents tell us as kids to either be a lawyer or a doctor?

The elite drives the business of law, and many of them have strong ties to the ABA. The ABA knows full well what their role is with the practice of law and realizes that mediocre performance, whether in law school or on the bar exam, is not going to cut it for the future of law practice.
  • Law firms are not going to hire so-so lawyers with so-so bar exam scores.
  • Big time clients with much money will refuse to work with that same lawyer, bringing into question the credibility of the firm itself who hired that so-so lawyer with his/her so-so bar exam scores.

If it is not difficult enough to become elite in the legal industry, it is exponentially more difficult to stay elite. Much of what can weigh against an elite law firm with elite partners and senior associates are lost cases, improper or dubious billing, and anything else that can affect a law firm’s overriding integrity. Moreover, while many of these negatives can be quelled (within reason) inside a law firm, what cannot be repaired or resolved by a law firm’s influence are the caliber of up-and-coming attorneys, many of whose legal competency is judged by whether or not they passed the bar.

In short, when it comes to hiring new associates and bar passage, law firms typically look for:
  • High bar exam scores
  • How long a prospective attorney waited (and studied) before taking and hopefully passing the bar
  • How many times it took a prospective attorney to pass the bar

How an attorney’s background holds up to these bar-related scenarios can affect a law firm’s status both positively and negatively.

Contrarily, law firms that hire attorneys who have taken the bar two, three or four times will not enjoy the same status as the firm whose associate hires passed the bar after one try. Lawyers throughout the firm whose associates have lower bar passage scores will know this, which can lead to clients finding out about this, who in turn might terminate the firm as their legal representation.

A second issue that comes into play with law firms and low bar passage rates is that if law schools are graduating mediocre lawyers who cannot pass the bar on their first attempt, law firms may not have a choice but to hire sub-level law talent. Without a doubt, this will taint any exclusivity that law firm holds, in addition to causing clients to become leery of the law firm’s direction. The end result: a loss of clients.
  1. Where does diversity fit into poor bar passage rates?

While most legal industry observers look favorably upon diversity in the law field – and with good reason, diversity nonetheless may initially be partly responsible for poor bar passage rates. In fact, poor bar passage rates come directly from the fact that law schools, bar exams, and big American law firms in and of themselves are either slow to initiate diversity, ambivalent toward change, or simply downright resistant.

Law, the study of law and its practice is, by all rights, a massive industrial machine whose old-school purveyors as both attorney and client are slow to embrace change. New ideas vis-à-vis thinking out of the box is in most cases are regarded with uncertainty. In many scenarios, older, high-powered establishment attorneys who represent older high-powered establishment clients control the law practice. Moreover, it is exactly that type of establishment that often sets aside diversity as something “we will get to,” yet diversity remains a subject on which established firms vacillate.

That view, or rather the belief within successful law firms that diversity is something to address later more so than sooner, invariably filters down to law schools in which old partners from rich firms donate millions of dollars to their alma maters to either directly or indirectly preserve their “class” of law talent.

Attorneys employ this practice within many highly regarded law schools such as those in The Ivy League and other select institutions throughout the country. These top-tier law schools are paid, in a sense, to maintain the standard established by their rich and powerful alumnus who wish for their legal world never to change.

The bar exam, in this sense, is just a tool. It is a hurdle in the middle of a mad dash for prominence within the legal community. While the exam can have some practical value, many attorneys shrug off its use as a gauge toward whether or not a graduating attorney is fit to be yours or my attorney.

Yet in the same way that established law firms and lawyers are resistant to change, the bar exam represents the sentry that guards the legal establishment.

Of course with more diverse lower-tier law schools unable to academically compete with law schools such as Harvard and Yale that is supported by established attorneys, there’s little to wonder about as to who will survive in today’s legal atmosphere and who will perish.

The increasing rate of bar exam failures may have a direct link to:
  • The influence of old world lawyers, law firms, and law schools.
  • A desperate need to keep the status quo operating among older lawyers and their protégé.
  • Mediocre second and third-tier law schools who cannot compete academically with top-tier law schools.
  • Mediocre second and third-tier law schools are the only options widely available for law students who come from diverse backgrounds. Hence these students will never receive the proper level of legal education to compete with students from top-tier schools.
The Verdict

As was earlier said, diversity is only part of the problem relating to poor bar exam passage rates. Blame also must be assumed by lower-end law schools that while inviting prospective law students to study within their facilities, need to do all they can to ascend to levels on which they actively compete with top-tier law schools.

Sure, there’s talk of lowering the bar’s standard and provide an easier exam for graduating law students, but in the end, that will be unfair to nearly everyone within the legal profession:
  1. To lower the bar exam standard will be unfair to the already established associate or partner who had to take a much more difficult exam. 
  2. Regarding today’s more diverse grouping of prospective lawyers, to lower the bar exam standard will be doing them a disservice as clients they may someday represent might feel these lawyers are ill-equipped because they took a watered-down bar exam.
What it comes down to is pure and simple work within the bounds of getting a good education. Remember, the bar exam is just that – an exam. It can be taken twice, three times, even four. Passing the bar exam is the objective here as opposed to how many times it takes a law graduate to pass it.

The silver lining to bar exam passage rates, whether good or bad is this: Newly formed firms comprised of younger and varied lawyers have begun to regard the bar exam as a dinosaur representative of old-school law practices. Due to this, they see it less a pragmatic test that displays a new lawyer’s legal acumen.

Now that is diverse thinking toward what many hope will soon be a much more diverse profession free of mounting bar exam pressures.
See the following articles for more information:

published November 17, 2017

( 23 votes, average: 4.4 out of 5)
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