C.A. Rebukes Applicant for Attacking Bar Exam Grading

By SHERRI M. OKAMOTO, Staff Writer

This district’s Court of Appeal yesterday sternly rebuked a Maryland lawyer who sued the State Bar of California over its exam grading review procedures after failing to gain admission for the third time.

Div. Two, in an unpublished opinion by Justice Judith M. Ashmann-Gerst, ruled that the sole venue in which attorney Joel D. Joseph could seek a hearing regarding the grading of his Bar exam was the California Supreme Court, and dismissed his assertion that this review procedure was unconstitutional as being “unfounded, and, quite frankly, offensive.”

Joseph told the MetNews yesterday that the he was only aware of one case in the past 150 years in which the California Supreme Court addressed the issue of attorney admissions, remarking:

“I can’t think of a more illusory remedy.”

The attorney, whose website indicates he has been practicing law for 36 years and is licensed in Maryland and multiple district and appellate courts, said he recently relocated to Los Angeles and took the February 2009 exam.

Fewer than 34 percent of the 4,084 applicants who took that test passed it, representing a seven-year low, according to figures released by the Committee of Bar Examiners.

Joseph remarked that “obviously something is wrong with this Bar exam if seasoned professionals and law professors can’t pass it,” pointing out former Stanford Law School Dean Kathleen Sullivan had failed the July 2005 test.

“I taught law school at George Washington University, I’ve written 10 books on law, I’ve had many cases go to the U.S. Supreme Court,” he said. “I know I passed, [the exam] was just graded wrong.”

When the State Bar declined to have Joseph’s exam answers reread or provide him with an opportunity to review the graders’ notes, the attorney filed suit in the Los Angeles Superior Court, claiming violations of due process and equal protection.

Judge Norman Tarle sustained the State Bar’s demurrer to the complaint, finding that issues regarding examination fees and scoring were encompassed by the Supreme Court’s inherent power to control attorney admissions.

Ashmann-Gerst agreed, explaining that the State Bar “acts as the California Supreme Court’s administrative assistant or adjunct in the areas of admissions and discipline of attorneys” but the Supreme Court “controls the admission process as part of its inherent power.”

Citing Business and Professions Code Sec. 6066—which provides that challenges to State Bar certification denials shall be “reviewed by the Supreme Court”—and case law “confirm[ing] that the Supreme Court’s jurisdiction over the attorney admissions process is not only original, but also inherent and plenary,” Ashmann-Gerst concluded that the superior court was an improper forum for Joseph to seek relief.

She further noted that Joseph was “well-aware” of the appropriate appeals procedure since he had previously—unsuccessfully—filed a petition for a writ of mandate with the California Supreme Court challenging the results of his July 2008 exam.

The justice went on to chastise Joseph for his “inflammatory and unsubstantiated comments…peppered throughout [his] briefs,” opining such remarks were “unnecessary and unprofessional,” and that “an experienced attorney should know better.”

Rachel Grunberg, one of the attorneys representing the State Bar, said that the court’s decision was “pretty much expected” since “people often try this avenue and are just repeatedly unsuccessful.”

Joseph said he will appeal the decision to the California Supreme Court, and, if necessary, to the U.S. Supreme Court.

The case is Joseph v. State Bar of California, B221236.

Copyright 2010, Metropolitan News Company

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