Is it time to get rid of the bar exam?

Traci Gentilozzi

The July 2015 Michigan bar exam results were recently released … and once again, the passage rate was relatively low.

Of the 812 applicants who took this most recent exam, 61 percent passed while 39 percent failed.

This barely-more-than-half passage rate seems to be a trend lately. Take a look at these statistics for the Michigan bar exam after appeals:

February 2015: 58 % passed;

July 2014: 65 % passed;

February 2014: 65 % passed;

July 2013: 62 % passed.

In contrast, take a look at the bar passage rates after appeals for exams in 2011, 2010 and 2009:

July 2011: 76 % passed;

February 2011: 79 % passed;

July 2010: 80 % passed;

February 2010: 81 % passed;

July 2009: 85 % passed.

There is clearly a passage rate decline in the past several years. And it continues despite the Michigan Board of Law Examiners’ announcement last year that it was using a new “linear equating” scoring
system, beginning with the July 2014 bar exam.­

At the time that new scoring system was implemented, it was reported that then-BLE Executive Director Jana L. Benjamin said the new scoring system would provide “the best possible reflection of the competence of the test takers.” Benjamin added, however, that the board was not “driven by a desire that there be a particular passing rate of any kind.”

Meanwhile, the State Bar of Michigan reports on its “Best Legal Future Blog” that Michigan’s bar exam statistics are consistent with national trends; that is, “lower passage rates in a declining pool of bar applicants.” The SBM blog cites Bloomberg Business as reporting that the average score on the multiple-choice section of the bar exam is at the lowest level since 1988.

The SBM blog also indicates the dwindling passage rate has been explained by Erica Moeser, CEO of the National Conference of Bar Examiners, as being “predictable,” based on an overall decline in the test-taking abilities of law school graduates, as measured by LSAT scores.

However, according to the SBM, Moeser’s explanation has come under fire, with some questioning whether the current bar admissions process is the right way to ensure quality legal services. The criticism is also intensified by concerns that the legal job market is inundated with law school graduates who have passed the bar exam, but remain unemployed and are simply not ready to practice law.

According to the State Bar of Michigan: “Whatever the actual magnitude of that phenomenon, would brainstorming outside of conventional conceptions and assumptions lead us to a radically different way to assure the public that legal practitioners are qualified for the work? The State Bar’s 21st Century Practice Task Force is taking on that challenge. ... We are now solidly in a world where people are relying more and more on peer reviews and less on professional evaluations. Would it be sufficient to have the ‘market’ decide which lawyers are qualified and which are not? Perhaps we should invest our bar exam resources in creating a robust peer review and disciplinary system.”

Keeping all this in mind, are Michigan’s most recent bar passage rates really the “best possible reflection” of the future of our legal profession, as the Board of Law Examiners asserts? If so, then the quality of legal services in Michigan could be in jeopardy.

The SBM’s 21st Century Practice Task Force deserves credit for facing the reality of the bar-passage situation, and discussing the possible alternatives. If recent bar exam statistics are any indicator, it may very well be time for a change in how we determine who practices law, and who does not.

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Michigan attorney Traci R. Gentilozzi is a legal writer and editor who owns 360 Legal Solutions, PLLC, in Lansing. She also is a business development and marketing consultant with Rain BDM in Bloomfield Hills and is a former publisher/editor and news editor at Michigan Lawyers Weekly.

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