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Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence

The practice of law has become nationwide and global. Unfortunately, the licensing process for U.S. attorneys has not caught up with today’s reality. The mental model that requires experienced attorneys to re-invent the wheel and take another bar exam to obtain licensing in another state is as outdated as the separate but equal era in the 21st century.

A bar exam, like driver’s license testing, is predictive in nature and designed to measure entry level skills. The purpose of the exam is to model what a beginning attorney would confront in practice and thus to provide a measure of comfort that the public will not be injured. The fact that an attorney is already licensed and practicing successfully in another jurisdiction is the best evidence of competence – the proof is in the pudding. The United States Supreme Court has held that there is no reason to presume that an out-of-state attorney will not become familiar with local law or disserve the public. Thus, the mere fact experienced attorneys are required to take another licensing exam illustrates the exam is suspect.

Digging deeper into the licensing function, Robert MacCrate, Esq., was the chair of the ABA’s Task Force on Law Schools and the Profession. The “MacCrate Report” identifies 10 fundamental lawyering skills: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute resolution, (9) organization and management of legal work, and (10) professional self-development.

A pen and paper bar examination cannot and does not test nine of the ten skills identified by the MacCrate Report as fundamental to the successful practice of law. The only identified skill that can be tested is legal analysis and reasoning. Dr. Geoff Norman is a well known and highly respected psychometric expert who has 30 years of experience in the field and has written numerous articles for The Bar Examiner. Dr. Norman reports, “Study after study has shown that it is almost impossible to get judges to agree on scores for essay answers.” For example, California’s licensing exam for experienced attorneys is 100 percent subjective. The RAND Corporation reports a 23 percent or less agreement among graders of the exam. Deborah Rhode, a Stanford law professor, reports that there has never been a study proving a correlation between passing a bar exam and competently practicing law. Yet, two out of three already licensed attorneys are disqualified for California licensing based on a high-stakes licensing test that has no other purpose other than to limit supply and increase demand.

Imagine, if you took an AIDS test, and the test results 23% of the time were the same, and there was no proof the test had any correlation with having the virus? This putative re-testing scheme is a cancer that needs to be removed by any and every means necessary.

Many bar examiners at the state and national level know these indisputable facts. They have a code of silence that permits each of them to make money off the profession by selling additional bar exams. They are by silence perpetuating the status quo long after the quo has lost its status.

Join the NAAMJP www.mjplaw.org. Let’s connect the dots and disconnect this code of silence.

Permanent Link: Bar Exams for Experienced Attorneys: Time to Connect the Dots and Disconnect the Code of Silence


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