Ken Grady, an Adjunct Professor and Research Fellow at Michigan State University College of Law, discusses the shortcomings of the bar exam and the need for diploma privilege advocates to continue their passion after licensure to reform the guild-like behavior of this profession...
The three-year journey has ended. Clearing one more hurdle, you would join your chosen profession. But as you approached the hurdle, becoming a lawyer resembled joining a craft guild. Bar admission committees seemed intent on elevating custom over common sense. The infamous bar exam became a pandemic year proxy for antiquated legal industry rituals. What keeps this hurdle in place and what can you do to help reform the guild?
In history, you will find abundant references to the “learned professions”—theology, law, and medicine. Teaching, architecture, and engineering later joined the list. The learned profession construct lives on. The U.S. Code of Federal Regulations uses this definition: “the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.”
Beyond advanced learning, what distinguishes a learned profession? According to John Wade, former Dean and Professor of Law Vanderbilt University School of Law, two other attributes: organization and public service orientation. Dean Wade noted lawyers had organized themselves into guilds. He argued lawyer organizations had evolved beyond guilds by the 1960s.
I believe lawyer organizations remain guild-like institutions. Guilds look inward whereas learned professions look (or should look) outward. In 1962, economist Milton Friedman published his book, Capitalism and Freedom. In it he said, “there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.” Retrogression meant stepping away from freedom. “The overthrow of the medieval guild system was an indispensable early step in the rise of freedom in the Western world.” The legal industry has many exemplars of the guild system. The bar exam, in its current form, counts as one. It fits the inward-looking, practice-restricted, guild mentality.
The content of the exam itself adds support to this view. The exam focuses on guild knowledge not practice competencies. Law professors have demonstrated the exam’s failings. The National College of Bar Examiners knows its flaws. It conducted a job analysis study in 2012. The results revealed many gaps between the exam’s content and lawyer’s jobs. The Phase 2 Report of the NCBE’s current study (which lasts through 2020) shows similar gaps.
The pandemic forced the issue. Why make bar applicants risk their lives and the lives of others to take an in-person invalid exam? The diploma privilege alternative presented a common-sense, risk-based alternative. The privilege would admit every American Bar Association-accredited school graduate into a state bar without an exam. Opponents of diploma privilege raise the specter of mass malpractice. “The exam protects the public. Without the exam, we might turn loose on the public incompetent ABA-accredited law school graduates.”
To buttress this argument, they cite bar exam pass rate statistics. About 80% of those who take the bar exam pass on the first try. Add in a second try, and the passage rate increases to 90%. Of the remaining 10%, a few will try one or more times without passing. Diploma privilege allows into the guild some portion of the 10% the exam would have kept out. One commentator has called this the “elephant in the room”. Exam proponents must assume it qualifies as “a meaningful indicator of competency to practice.” For those still studying for the exam, recall this phrase: “assumes facts not in evidence.”
The argument crumbles given the NCBE’s data. We cannot assess the competency of the 90% passing the exam, because the exam failed to test competence. We cannot assess the competency of the 10% failing the exam, for the same reason. The exam emphasizes one skill: memorization. Those who do well on the exam demonstrate the ability to memorize a large quantity of data and access it under pressure. Memorization has little relevance in modern legal practice.
Lawyers do use a different skill—risk assessment. The pandemic bar exam gave bar admission committees the chance to showcase their risk assessment skills. We can postulate two scenarios. First, some unknown number of lawyers admitted under diploma privilege will do harm to the public. Second, 8.5% of thousands of exam takers and proctors pick up and transmit a virus to as many persons. We know the virus causes illness and death within the affected population. Which presents the greater risk? A few committees got the risk assessment right; many did not.
If lawyers belong to guild-like institutions, should we care? Sheilagh Ogilvie, an economist, detailed some downsides of guilds in her paper The Economics of Guilds. Ogilvie argues guilds exacerbate inequality, keep training opportunities scarce, and impede innovation. Guilds “protect and enrich their members at the expense of consumers and nonmembers.” Steve Teles, a professor of political science at the Johns Hopkins University, argues guild-like institutions “slow economic growth and change”.
As recent law school graduates have learned, guilds fight change. According to Ogilvie, those opposing guilds’ antiquarian practices “face high transaction costs in resisting a politically entrenched institution.” Many people, including potential guild entrants, bear those costs. By contrast, guild members face low costs defending the guild.
Legal industry reformers have encountered this problem. New lawyers face huge debts, iffy job markets, and the challenges of a new career. They have avoided starting their careers as industry activists. Bar admissions committees may have changed the dynamic. The committees found a way to spark a passion for change among new lawyers. I hope we can channel your passion. Legal industry reformers need your help in many areas, including agitating for bar admission reform. Let me point you to a few others.
We can start by serving the people. In some jurisdictions, as many as 95% of court litigants self-represent. Many criminal defendants go with little or no representation. Lawyers in public service do what they can. But the system aligns against them. People face the most consequential battles of their lives without assistance. A majority of the population cannot afford or access representation. We know many legal disputes involve few if any legal issues. They arise from other challenges (loss of work, homelessness, etc.). But litigants benefit from having an advocate by their side. The legal industry has failed them.
Consider the phrase “a majority of the population”. Look at the legal industry. No doubt you see large disparities between the two. Legal industry demographics do not reflect society’s demographics. By any relevant diversity measure, the legal industry lacks. Many have labored to correct this imbalance, but they need more help and fresh ideas.
I mentioned “affordable” legal representation. People do not hire lawyers for many reasons, including cost. An attorney providing services to individuals charges, on average, $225 per hour. A person earning $100,000 a year makes under $50 per hour. It takes the person earning $100,000 (before taxes) 4.5 hours of work to pay for one hour of a lawyer’s time. The Bureau of Labor Statistics listed a median US income for 2017 of around $45,000. At the median income level, a person must work 10.4 hours to pay the attorney.
What do those attorneys make? Unlike other professions, attorney incomes fall into a bimodal distribution. More than 50% of new attorneys make around $40,000 to $60,000 per year. They work in public interest and non-partnership track associate positions. A second group (approximately 14%) huddles around $190,000 and work in BigLaw. The $190,000 compares to $160,000 a few years ago. According to the Bureau of Labor Statistics, the 2019 median attorney income fell at $123,000.
We have many overworked, underemployed, and unemployed attorneys. At the same time, we have many unrepresented people. Work through the numbers, and you see another reform opportunity. We have a massively imbalanced legal system. People need access to affordable legal representation. Attorneys need jobs that pay commensurate with the value they provide. The numbers show us the guild needs reform.
You will clear the hurdle of the bar exam as you have cleared many hurdles before. As an attorney, I regret you have had to fight the pandemic bar exam battle. As an activist and legal industry reform advocate, I welcome you to the cause.
Let me bring this to a personal level. I am a cancer survivor. I do not wish the scourge of cancer on anyone. But I ask myself each day what I can take from my experience and use to make life better for others. I hope this experience has ignited a passion in you. Please join us in our fight for a against guild-thinking and for a profession. Together, we can build a profession focused on client service not just self-enrichment.
For more information on this topic, please see the recording of the webinar hosted by JURIST and United for Diploma Privilege on July 9th entitled: “Diploma Privilege and the Future of the Bar Exam.” Please also see the JURIST Editorial Board’s statement on Diploma Privilege entitled “The Diploma Privilege Manifesto“.
Ken Grady is an Adjunct Professor and Research Fellow at Michigan State University College of Law and on the advisory boards of MDR Labs and LARI, Ltd. Ken writes about innovation, legal technology, the future of the legal industry, and efficiency. He is a Fellow of the College of Law Practice Management, a Fastcase 50 honoree, and a Financial Times honoree for innovative leadership. He is the principal author of the award-winning blog, The Algorithmic Society. Ken was a partner in a large law firm, a consulting firm CEO, and general counsel and executive for Fortune 1000 corporations.
Suggested citation: Ken Grady, Turn the Pandemic Bar Exam Battle into a Passion for Reform, JURIST – Academic Commentary, July 29, 2020, https://www.jurist.org/commentary/2020/07/ken-grady-bar-exam/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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