Iowa raises legal issue: Abolish the bar exam?

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Posted: Sunday, February 9, 2014 12:00 am | Updated: 2:16 pm, Thu Jun 5, 2014.

PITTSBURGH — Across the country, law school graduates are preparing to take this month’s bar examination in order to get their licenses to practice law. Many will spend a few thousand dollars on an all-consuming preparatory course, even as they wonder if they’ll be able to find work in one of the worst labor markets for lawyers in a generation.

A growing chorus of voices is suggesting that it is past time to rethink how lawyers become lawyers. And they’re taking aim at one of the biggest barriers to entry: the bar exam.

Iowa is considering a proposal to do away with its bar exam entirely and move to a “diploma privilege” system like one used by its neighbor Wisconsin. In Wisconsin — the only state not to require a bar exam — students who graduate from a state law school can practice law there.

“I will say that Iowa is on to something here,” said Ken Gormley, Duquesne University School of Law dean. “It would be healthy for bar examiners in all states, including Pennsylvania, to examine their practices and their goals and make sure they really are in alignment.”

That already has happened to an extent in Nebraska, where in February 2013 the state administered for the first time the Unified Bar Examination, or UBE. The exam is offered in 14 states, including Missouri, Colorado, Wyoming and North Dakota, and Minnesota and New Hampshire will administer a UBE for the first time this month.

The UBE enables anyone who passes it to practice in any other state that administers it without taking another exam, provided they achieved an adequate score as determined by each participating state’s regulatory commission.

If Iowa does abolish its bar exam, some legal scholars think other states may follow suit, especially states that have only one or two law schools — but deans from Nebraska’s two law schools aren’t so convinced.

“There’s no indication (abandoning the bar exam in Nebraska) is coming anytime soon,” said Susan Poser, dean of the University of Nebraska College of Law. “I’m pretty sure if the State Supreme Court were thinking about it, they’d approach me or Marianne (Culhane).”Culhane, who is dean at Creighton University School of Law, said she has not been involved in any conversations about abandoning the bar exam, either, even though she understands Iowa’s approach.

“If 90-plus percent of people are passing it on the first try anyway, why are we keeping them from working?” Culhane said, adding that some groups of Creighton students taking the Iowa bar have had pass rates of 100 percent.

“That would be an indication that the bar isn’t really weeding too many people out.”

Guy Cook, president of the Iowa State Bar Association, is a proponent of the plan to abolish the bar exam. “It’s nothing more than a final hazing that tests students on esoteric material they will probably never use,” he said. “It doesn’t test students on Iowa law, and leaves students who have already spent three years in law school in limbo.”

Iowa’s pass rate for students taking the bar for the first time is 94 percent, and, like Culhane, Cook also noted that if one of the exam’s goals is to cull undesirable candidates, it’s not very successful.

Cook put together a nonpartisan blue-ribbon commission to look at possible improvements for educating law students. After six months of study, the commission’s unanimous decision was to recommend that Iowa move to a diploma privilege system.

“We have two excellent law schools, and a good working relationship between the State Supreme Court and the bar,” he said, which could help the law schools decide what practical knowledge students should be getting from their coursework. “If students still wanted to take a course on, say, comparative law in Bosnia, they could, but it wouldn’t help them earn a diploma (in Iowa).”

Michael Fenner, president of the Nebraska State Bar Association, said he thinks the exam is “as relevant and useful as it ever was,” and even though some argue against it, “way more people seem to believe that it is relevant.”

He sees the Iowa campaign as an investment of “a lot of faith” in the state’s law schools and also as a way to keep more Iowa law graduates in Iowa.

“With law school applications down and classes in some law schools shrinking, this is a way to encourage some Iowans who want to practice law in Iowa to attend law school there, so it’s an incentive,” Fenner said.

It’s also a way for students to avoid having to delay searching for jobs, especially since the bar exam is offered only twice a year.

Poser also believes the bar exam still has relevance and offers an incentive of its own: to encourage students to gain a firm footing in basic, theoretical areas of the law. Without an exam in place, she said, “that’s just one more incentive gone to take those important classes.”

During the early part of the 20th century, most states moved toward requiring a bar examination prior to receiving a license to practice law. Wisconsin did not follow that trend and has been alone in its use of diploma privilege since 1988, when West Virginia finally moved to a bar exam requirement. Despite several challenges over the years, Wisconsin’s diploma privilege has remained intact.

Wisconsin’s rule is fairly straightforward: If a student graduates from one of the state’s two law schools, Marquette University or the University of Wisconsin, the student can be admitted to the state bar without taking an exam. Practicing law in another state would probably require taking that state’s bar exam.

Iowa, too, has two law schools, at the University of Iowa and Drake University.

Beverly Moran, a professor of law at Vanderbilt University in Tennessee who was formerly a professor at the University of Wisconsin, wrote an oft-cited paper in 2000 titled, “The Wisconsin Privilege: Try it, You’ll Like it.” More than a decade later, Moran said her opinion of Wisconsin’s system had not changed.

“The University of Wisconsin is a highly theoretical school with very prominent faculty,” said Moran. “When I was there, there were two Macarthur Genius Grant recipients on faculty.”

Students at Wisconsin law schools receive an education that is practical, she added, based on input from the state bar association and practicing attorneys. “The diploma privilege in Wisconsin allows for a richer curriculum, more geared toward practice,” she said.

So how practical is the material students must know for the Pennsylvania bar exam? Gormley says not very. As a law professor, he is among those who review the questions.

“It’s sometimes frustrating that a question will hinge on a topic that merits three sentences in a 1,700-page book of constitutional law. That’s not fair,” he said. “The bar exam should be testing students on the fundamentals, not be like a game of Trivial Pursuit to see whether you can be tripped up.”

Jessica Michael remembers well the long period of time between graduating from the University of Pittsburgh law school, taking the bar exam and finally getting her license to practice.

“I was used to being financially independent, but suddenly I was eating Ramen noodles every day and putting a lot of things on credit cards,” said Michael, now an attorney with Samuel J. Cordes and Associates.

In addition to the considerable expense of law school — the annual tuition at Duquesne Law School for 2013-14 is roughly $36,000, and the fee to take the bar exam is around $600 — bar exam prep courses can cost around $3,000.

“One of the challenges we have to address is students who are working; how do they put their lives and their income on hold to take the test?” Gormley said. “That’s a big investment on top of an already expensive professional education.”

The two-day Pennsylvania bar exam includes a performance test and six essay questions on day one. On day two, students take the multistate bar examination, a standardized 200-question, multiple-choice test required by every state except Louisiana.

Michael said she has not found most of what was on the bar exam relevant to her practice; being quizzed on mortgage rules and corporate law didn’t help prepare her for the work she does as a plaintiff-side employment law attorney.

There are enough differences between Pennsylvania and Iowa to make the argument for a diploma privilege in the Hawkeye State less compelling in the Keystone State, said Gicine Brignola, executive director of the Pennsylvania Board of Law Examiners.

“I think there are three main differences,” Brignola said. “Iowa has two law schools in the state; Pennsylvania has eight, and we pull from schools nearby in New Jersey.” Pennsylvania’s test checks students on specifics of state law, she said.

Iowa’s bar exam has a pass percentage rate in the 90s, but, she noted, on the most recent exam given in Pennsylvania, only 77 percent of first-time test takers received a passing score.

“I don’t think diploma privilege is coming to Pennsylvania anytime soon,” Brignola said.

Iowa’s proposal to abolish the bar exam was approved unanimously not only by Cook’s blue-ribbon commission, but also by the association’s 45-member Board of Governors. It will be open for public comment this spring before going before the State Supreme Court.

Creighton’s Culhane said she expects that the Iowa proposal, if successful, could enable more attorneys to practice in the state’s smaller communities, in part by reducing the additional debt load bar exam preparation courses can incur.

“That’s certainly a consideration in Nebraska as well, where there are a lot of counties that have either no practicing attorneys or are in the low single-digits,” Culhane said. “Anything that reduces the cost of getting your ticket is certainly helpful.”

World-Herald staff writer Cole Epley contributed to this report.

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