2022 Resolution for the Legal Profession: The Bar Exam Must GoDecember 17, 2021
By Bob Glaves | CBF Executive Director
As I started thinking about this 2022 resolution for the profession, it occurred to me that it could be the same as my 2021 Resolution: don’t let the hard-earned lessons of 2020 go to waste. We are still learning those lessons in 2021 as the pandemic appears to be headed towards becoming an endemic, and they all apply more than ever in our evolving new normal.
So let’s roll over the whole 2021 resolution, but for 2022, I want to focus on one area of huge opportunity that could easily get lost in the transition to the next normal. Our profession needs to take a hard look in the mirror at how we educate, license, and evaluate lawyers and cross-examine ourselves on why we do not better reflect the communities we serve. That process suggests a range of reforms and solutions, and getting rid of the bar exam as we know it is front and center.
Why it Matters for Access to Justice
While it is clearly a much broader issue, the requirements to enter and stay in our profession have critical ramifications for access to justice.
As much as we need a broad range of strategies to ensure access to justice, good lawyers have a central place in any real solution. Along with the many direct benefits of legal representation, trust and confidence in the system is another important facet of access to justice.
Whether people have access to good lawyers has a big impact on building and maintaining that trust, as does the degree to which our profession reflects the communities we serve. And while there are other factors involved beyond lawyers, public trust in the system is at a low point right now and there is little doubt that is a big part of the problem.
What Makes a Good Lawyer?
As you are reading this, take a few moments to consider what makes a good lawyer in your experience.
(Cue the Jeopardy music here).
Okay, now that you have done that, how much connection do you see between your definition and what is tested on the bar exam? I am going to guess it’s not much and maybe none at all.
In my own non-expert definition, good lawyers provide top-notch services to clients, take our roles as trustees of the legal system to heart, and understand and connect with the communities we serve.
Experts looking at these issues take that definition many steps further. For example,
Jordan Furlong, a renowned legal sector analyst, shared a compelling vision of an entirely new framework for defining and developing good lawyers in two posts earlier this year, Radical roads to reform lawyer formation and Defining lawyer competence. The Institute for the Advancement of the American Legal Profession (IAALS) also has been doing good work on this subject, highlighted by their recent report, Building a Better Bar.
The Bar Exam is a Main Culprit
Once we more carefully define what makes a good lawyer, it only becomes clearer that the current bar exam bears little resemblance, and the solution starts with getting rid of it.
Yes, legal education has a big role, as do pre-law pipeline programs, reforms to our system of higher education finance and student debt repayment, lifelong training and continuing legal education programs, mentoring programs, and more.
But it is the bar exam that sets the tone for legal education, which in turn determines whether people even consider law school (with the LSAT in particular showing unfortunate bar exam influence).
Diversity in our Profession v. the Diversity of our Community
The ABA’s annual Profile of the Legal Profession is always a very interesting report to review on many different levels. Among the statistics it tracks is the national picture of the relative lack of diversity in our profession and looking back at it over time shows just how slowly that is changing.
The latest ABA Profile shows a profession that is still more than 85% White; less than 5% are Black, less than 5% are Hispanic, and just 2.5% are Asian. While the ARDC does not track racial demographics in our profession here in Illinois, we can expect those numbers would not be much different here.
Compare that diversity in the profession to the latest census data for the Chicago area and state of Illinois. For Cook County, 40% of the population is White, 26% Hispanic, 22% Black, and 8% Asian. Statewide in Illinois, 58% are White, 18% are Hispanic, 14% are Black, and just under 6% are Asian.
Those are some stark differences between our profession and the communities we serve. As I noted in a post earlier this year, I am far from an expert on this point, but the persistently low racial and ethnic diversity in our profession tells us there are some bigger structural issues that relate to how we become lawyers in the first place.
Rethinking how we finance and repay the costs of higher education in our country is certainly an integral part of the solution, but the problem goes far beyond that.
What role does the LSAT and the traditional law school admissions process play? While diversity in the overall law student population has certainly improved faster than what we see in the overall profession, the problem starts here. And then we are back to the bar exam again, where we need to take a broader look at what role that may be playing in this problem when we know it is not a particularly good way of assessing lawyer competence.
Instead of the Bar Exam…
Given the disconnect between the bar exam and what makes a good lawyer and the striking gap in how well our profession reflects the communities we serve, we need to ditch the bar exam and look at better ways to determine who enters our profession and how they do so.
I don’t have all the answers, but the posts from Jordan Furlong and the report from IAALS that I noted above are solid places to start.
Wisconsin has gotten by just fine without the bar exam for many years now, and Oregon is among the states that is taking a comprehensive look at alternatives.
There are elements of our current bar exam that do make sense for entry into the profession, notably ethics, legal analysis, and legal writing. We should keep those as legal educational requirements for graduation, along with experiential requirements and consideration of differentiated educational tracks depending on whether people are going into traditional practice or other environments.
There are other important topics like DEI and wellness that should be part of both legal education and ongoing assessment of professional competence, some of which already are mandated as part of our CLE requirements in Illinois.
And one more topic that I will expound on in my first post of the new year is a proposed required law school class and CLE topic that I am loosely calling “Macro-legal-economics.” This is to give all lawyers and judges grounding in the larger issues of our profession, the legal market, and the court system that all are crucial underpinnings for us to fulfill our roles as trustees of the justice system. Stay tuned for more on this next month.
Beyond the Bar Exam
Putting the bar exam out to pasture is just the starting point for the larger rethinking of how our profession can do a better job of educating, licensing, and evaluating lawyers while better reflecting the communities we serve. But it is a fundamental step as we continue to build a fairer and better new normal for our profession and justice system.