In Support of Other Options in Addition to the Bar Exam

Thoughts from one of the WSBA’s representatives on the Washington Bar Licensure Task Force

BY JORDAN COUCH, GOVERNOR AT-LARGE

I think we all agree it’s important for the Washington Supreme Court and the WSBA to ensure the basic competence of the lawyers who are entrusted with the lives and rights of the people of Washington. When I became a WSBA governor I swore an oath to serve the public and to uphold the mission of the WSBA. In fact, the first several words of the WSBA’s mission include “to serve the public.” I take that oath seriously. And yet here I am telling you we should create additional pathways to licensure that allow lawyers to practice law without passing a bar exam. I even chaired the Washington Bar Licensure Task Force’s subcommittee dedicated to researching and proposing those pathways.

I passed the bar exam on my first attempt. I was really proud. Being the first of my family to go to graduate school and the first to become a lawyer was a big accomplishment for me. So years later, when I started researching the bar exam and saw how ineffective it was, acceptance wasn’t easy. It’s hard to reflect on one of your biggest accomplishments and be told that it was, on some level, unnecessary, but both can be true. I can be proud of my accomplishment and aware that it says absolutely nothing about my qualifications to practice law.

Another oath I swore when I became a governor was to approach the role with “unbiased opinion, mature judgment, and enlightened conscience.” I hope as you continue reading what led me to my change of heart you will offer the same courtesy to me.

By every measure, the bar exam is a failure. The report from our task force subcommittee sets forth a lot of the data we uncovered. In short, the best studies we have all point to one conclusion. There is little to no correlation between the bar exam and effective lawyering or the bar exam and reducing lawyer complaints, malpractice, or discipline.¹1 See “A Proposal for the Future of WA State Bar Admissions — Working Draft,” at 3, n.4. What the bar exam does do is exclude a disproportionate number of people of color from entering the profession.²2 Id. at 2, n.1.

Over the last few decades, the bar exam has gone through a number of iterations in an attempt to make the test more relevant and close the racial equity gap. Despite these changes, there has been no meaningful impact on the effectiveness of the bar exam in ensuring competence or in reducing the racial equity gap.³3 Id.

There is no such thing as an objective test. Every decision we make has an impact, and just because we don’t know the impact doesn’t mean we aren’t putting our fingers on the scale or nudging people in a certain direction. As I studied the history of the bar exam, the stated purpose from many advocates in the exam’s early days was explicitly to keep out people of color and “undesirable whites.”⁴4 Id. at 2, n.2. It was hard at first for me to understand how a seemingly objective test can reinforce inequities in our profession. But when you look at exam statistics,⁵5 Id. at 2, n.1. it’s clear that the exam’s design and structure favor a specific social-economic class. Regardless of whether we understand all the complexities of what makes the bar exam disproportionately exclude people of color, we know for a fact that it does.⁶6 Id. at 2, n.1. And what it offers in return is nothing. It is not an effective tool for protecting the public.

How can we do better? As the task force set about its assignment, we looked at what other states were doing and what they had done in the past. We also looked for guidance from other countries and other industries. As we did so we asked ourselves what was lacking in law school curriculum that made the bar exam seem like a good idea. Common feedback we heard was that law students lacked practical experience, that the bar exam doesn’t prepare people for practice, and that we couldn’t trust all law schools to graduate only students who were competent. With those ideas and more in mind, we created proposed additional pathways to licensure that tackled each of those problems. First, we recommend maintaining the bar exam as an option. This will provide a baseline by which we can measure the success of our additional pathways to licensure. Second, we proposed the creation of experiential pathways to licensure in which law school students and graduates can demonstrate their competence through supervised practice. For these experiential pathways we relied on existing successful programs in Washington like the APR 9 Licensed Legal Intern program and the APR 6 Law Clerk Program. Using these existing structures gives us more control over the licensing process, ensuring that only qualified graduates are allowed to practice law in this state. In addition to these proposals, we made a couple minor proposals to improve the bar exam and investigate how we can ensure the competence of lawyers serving the public throughout their career rather than just at a snapshot moment at the start of their career.

I’d strongly encourage reading the entire proposal and reaching out to me if you have any questions.  

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LEARN MORE

Read the full report, “A Proposal for the Future of Washington State Bar Admissions,” at
www.courts.wa.gov/appellate_ trial_courts/SupremeCourt/?fa= supremecourt.LicensureTaskForce.

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NOTES         

1.    See “A Proposal for the Future of WA State Bar Admissions — Working Draft,” at 3, n.4.

2.    Id. at 2, n.1.

3.    Id.

4.    Id. at 2, n.2.

5.    Id. at 2, n.1.

6.    Id. at 2, n.1.