WHAT DO LOWER PASS RATES FOR THE BAR EXAM REALLY MEAN?

Seems like a logical leap from cyber security to bar passage rates for an Open & Obvious blog topic, right? Like many of you, I have not thought about bar passage rates or the bar exam for several years, exactly thirty years this summer for me. However, I do recall reading many articles, blog posts and Facebook posts over the past few years debating the meaning of increasingly lower bar passage rates nationwide. This issue seemed to explode on the scene after the summer 2015 bar exam results became public. Mind you this is not an Oklahoma law school or Oklahoma bar exam issue but is a nationwide debate.

After all, the students take the exam and the students pass or fail the exam. Is it a lack of preparation on part of the law students? The decision to attend law school and take a bar exam is on the individual, not an institution or board of examiners. Therefore, all law students must decide whether the rigors of law school are something they are willing to take on and devote the time to passing the bar exam. Many 3L students are investing in multiple bar preparation courses at extensive costs to themselves and their families in order to support their efforts to pass the bar on the first take.

You can find article after article pointing the finger at the law schools. These articles suggest the institutions are facing financial pressure due to the low enrollment rates Between 2010 and 2014, 1L enrollment fell by 28%, a record low since 1988. Therefore, some theorize law schools are lowering their admission standards in fear of losing money.[1] Those who blame the law schools argue if you want students to pass the bar, heighten your admission standards and allow for smaller classes, even if this means the closing of some law schools.[2]

Perhaps, it is more effective to examine why enrollment is down. Maybe less students are attending law school because it is no longer a sound financial decision. After the economic downturn in 2008, corporations have tightened their belts on legal matters, and law firms, in turn, had no choice but to reduce hiring rates.[3] Law students find themselves in a position where the average debt is $140,616 per average law school graduate.[4]

In fact, according to a U.S. & News article, most students spend a prospective year’s salary on just one year of law school.[5] As to Oklahoma, one survey estimates the average debt for 71% of the 2015 graduating class of Oklahoma City University School of Law is $121,607. Oklahoma University was $82, 818 for 78% of their 2015 class. The University of Tulsa was $82,954 for 100% of the 2015 class.[6] It seems to me that the biggest problem for these law graduates then is the mountain of debt that exceeds what 95% of them can hope to make in the first year as a new lawyer or for the 50% of the law school class that determines not to practice law and go into some other field. Essentially these new professionals will leave law school with a mortgage to pay for a home they don’t live in.

Since most law schools are a for-profit business, the bar passage rate can also be analyzed from their business perspective. Bar passage rates may present simple market economics. As the supply of a good decreases and demand stays the same, the good becomes more valuable. Since prospective law students have realized law school may not be a sound investment in their financial future, law students (the goods) have decreased. However, law schools may target a certain class size because tuition dollars support the business. Law students are in turn more valuable to the institutions forcing the admission standards lower. Yet, as the law schools continue to produce new graduates, the legal market is operating in the opposite direction. Consequently, there are too many law students and too few legal jobs.[7] [8] Bar admission standards act as a filter in this case but that does nothing for the student.

This is a trending problem that has even led to a law student suing her institution for fraud, misleading employment statistics; she lost.[9] From a law firm economic standpoint, many small and medium sized firms are now only hiring law graduates that have already taken and passed the bar exam. The office sharing and solo practice ranks are growing as law firm sizes hold steady or decrease. I recall being told, many years ago, there were too many lawyers, not enough jobs and that the lawyer market simply was not large enough to take in all the graduates of the then four law schools located in Oklahoma. Now there are three. That should not deter a young Atticus Finch from living their legal profession dream. But can this problem really be addressed by the states Supreme Court, the ABA or even the National Conference of Bar Examiners?

According to a popular legal blog, the American Bar Association is taking steps to address the bar passage rates.[10] The ABA Section of Legal Education and Admission to the Bar have proposed new accreditation standards that will soon be public for comment. These standards include ending the ban on paid externships, new bar passage standards for institutions, and new attrition limitations.

According to the National Conference of Bar Examiners, the average score on the multiple-choice portion of the July bar exam fell 1.6 points in 2015 from the previous year, reaching record lows.[11] When the bar passage rates were surprisingly low in July 2014, many placed the blame on the software “glitch” that affected many test takers. Now, that the results continue to decline, is it the exam itself? What about the administration of the exam?[12]

Beginning in February 2015, civil procedure was added to the multiple-choice section, MBE, of the bar exam. Is adding a seventh subject on the bar exam making the exam more difficult? Most states had already incorporated civil procedure into the state questions.

Is having a rigorous test really a problem? Not according to Oklahoma Supreme Court Justice Steven Taylor, “the purpose of the bar examination is to screen applicants in such a way to protect the public and to protect the reputation of the legal profession. The bar examination should not be easy …” So maybe the test isn’t to blame, maybe the test is working and performing what one articles calls “a consumer protection” function, guaranteeing the “quality” of attorneys.[13]

On March 7, 2016, in a split 5-4 decision, the Oklahoma Supreme Court made a move that apparently lowers the bar exam standards.[14] [15] Specifically, Oklahoma is adjusting the acceptable MBE scaled score in response to the declining bar passage rates. In the dissenting opinion, the Honorable Justice Taylor pointed out how the Oklahoma Board of Bar Examiners unanimously recommended no change to the testing standard. The three law school Deans also agreed that no change should be made at this point. Despite this, Oklahoma became the first state to adjust scoring standards. But, last year, California shortened their bar exam from three to two days. [16] The Oklahoma bar passage rate breakdown by law school for February 2016 is not yet available but I am informed that passage rates were at or near historic norms.

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law. Also, Sharity Parham, associate attorney at Hiltgen & Brewer and 2015 Oklahoma bar admittee who contributed to this article can be reached at sparham@hbokc.law

Open & Obvious?

Recent Legal Events and News of the Not So Obvious

Leave a comment Cancel reply

Menu

Open & Obvious?

Recent Legal Events and News of the Not So Obvious

Share this:

Leave a comment Cancel reply

Menu