Is passing the California Bar Exam necessary for admittance to the Bar?
By Jane Becker and Lori King
We may be in for some surprising, and controversial, changes.
In early July, the SCCBA Board of Directors learned that the State Bar, and its Blue Ribbon Commission on the Bar’s Future, were considering eliminating the bar exam for some admittees by establishing a “non-exam pathway to a California license”. The Bar’s information on point is theoretical and fairly vague. It appears to be akin to an internship.
After research and discussion, the SCCBA Board of Directors voted to become a signatory to the letter by the Los Angeles County Bar Association , below. The letter gives voice to many concerns and is well worth the read. Other co-signers included twenty other bar associations and affiliated associations.
We will keep you posted on developments.
We would like your feedback. Please send your thoughts to lori@santacruzbar.org.
Details of the proposal by the Blue Ribbon Commission: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Blue-Ribbon-Commission
Letter signed by SCCBA and sent to State Bar of California:
Proposal to Establish a Non-Exam Pathway for Licensure in California
Dear Members of the Blue Ribbon Commission:
We understand that on July 19, 2022, the Blue Ribbon Commission on the Future of the Bar Exam (‘BRC”) is voting on a proposal to establish a “non-exam pathway” which would involve an experiential or internship based approach as an alternative to the bar examination in allowing new admittees to practice law in California.¹ On behalf of the Los Angeles County Bar Association and the undersigned bar associations, we write to express our concerns regarding this proposal.²
Materials available on the State Bar’s website do not make clear what the precise contours of the “non-exam pathway” would be, and we would request that the BRC provide more information about the “non-exam pathway” proposal and seek input from the undersigned bar organizations and the public before taking any vote to approve any such program. We are concerned that a “non-exam pathway” to bar admission could be contrary to the State Bar’s mission to protect the public. Such a pathway could eliminate the ability of the State Bar to ensure that all licensed attorneys possess the minimum competence to practice law. The “non-exam pathway” appears unlikely to ensure substantive knowledge of the law, legal writing, or analytical skills under an objective and uniform standard, and instead would allow licensure based on a varying and subjective standard that can be easily manipulated. The availability of a “non-exam pathway” also would disincentivize law schools to teach classes in foundational state and federal legal subjects that are currently tested on the bar exam.
The proposed “non-exam pathway” would also likely allow students in internships supervised by unscrupulous law firms and lawyers to enter the practice of law without the knowledge, skills, or abilities to competently practice law. This result would be particularly alarming in California, which permits students of non-ABA accredited, non-California accredited, and correspondence law schools to apply for licensure.³
In addition to the important questions of how the “non-exam pathway” program would work, and how the integrity of the program could be maintained, we are concerned about the significant cost of the program. In California, on average over 10,000 persons take the bar each year — a far larger number than the number of persons seeking to enter the bar each year in New Hampshire or Oregon, where a “non-exam pathway” is being implemented. The proposed “portfolio review” process for the “non-exam pathway” is time-consuming and labor intensive and will require a significant investment of funds for the hiring and training of numerous “regulators” needed to perform the reviews in a timely fashion. We do not know how extensive that “portfolio review” would be. We are concerned that the State Bar does not have the resources to effectively monitor the integrity of thousands of experiential internship programs and perform the detailed “portfolio review” by regulators to ensure that persons choosing the “non-exam pathway” are competent to practice law.
For these reasons, we cannot support a proposal that could damage the public and legal profession by hastily and unnecessarily establishing a “non-exam pathway” for licensure without the concerns we articulate above being addressed. To that end, the State Bar should provide a long-enough comment period for bar associations to provide input regarding any concrete proposal for substantive revisions to licensure, including changes to the bar exam or a potential non-exam pathway, prior to the BRC or State Bar making a recommendation to the Supreme Court.
¹ The undersigned bar organizations do not express an opinion as to whether the bar examination should be waived for experienced lawyers from other states. Many states allow reciprocal admission, and this may be appropriate for California as well.
² As a result of time constraints, the full Board of the Bar Association of San Francisco and other bar organizations were not able to approve this letter prior to the July 19 BRC meeting. As bar organizations sign on to this letter, we will inform the BRC.
³An internship or apprenticeship program may be desirable for all new admittees, but as an adjunct to, and not as a substitute for, the bar examination.
