Our obvious bias is just that. Obvious. We operate a specialized bar examination preparation course. We prepare applicants to take and pass the California Bar Exam in particular. Bias aside, we are in shock after listening to the hours of advocacy in favor of enacting a diploma privilege that took place earlier this week via Zoom.
Members of the State Bar of California as well as members of the California Supreme Court opened to comment on the current status of the California Bar Exam. You would think that after three years of law school the vast majority of callers would offer comments based on logic, not emotion. You would think that they would rely on precedent, not intuition. And you would certainly think that they would think twice before advocating in favor of opportunism. This forum was tantamount to asking a bunch of elementary school children whether they think homework should be abolished. The resounding response would be “yes”.
We listened to arguments ranging from the racial injustice in facial recognition software to threats of deportation. And over and over we heard how the bar exam is racist and classist. All of this stemming from the COVID-19 pandemic. Fact: We are facing an unprecedented state of affairs, and we are forced to adapt to change. The operative word here; adapt. We are astounded at how a conversation on how we can safely administer a bar exam turned into a forum on the inequities and injustices of our legal profession. There are serious concerns surrounding the safe administration of the California Bar Exam. We have real health concerns. But we solve that risk by adapting. The State Bar is offering an on-line exam. Yes, an on-line exam has its problems. But so does an in-person exam.
This is a licensing exam – not a commentary on the socioeconomic disparities that exist in our society. All of the concerns raised by the callers are concerns that existed prior to the pandemic. Economic hardships existed prior to COVID. Having to study for the bar exam existed before COVID. Juggling work and family while studying existed before COVID. Hoping to get a job while facing law school debt existed before COVID. Failing the bar exam and having to repeat it existed before COVID. The list goes on and on. To be clear, in no way does this comment seek to de-legitimize the hardships that surround obtaining a license to practice law. But really, folks, we all had to endure some form of hardship while studying Torts and Contracts. The hardships exist with or without the exam. What you all really want is a pass this time around, and you are using a broader range of social concerns to get that pass.
One caller actually made a very valid point. She said that she already was facing a discriminatory impact by not attending a “top tier “law school. In her opinion, she did not want the additional stigma of being recognized as a “COVID” or “2020” lawyer. Another mindful professional asked if we would ever consider hiring an unlicensed, doctor, accountant, contractor, or stockbroker. The answer is “of course not”. Why then would we hire an unlicensed attorney?
Perhaps we should re-examine how we test applicants prior to admission. Perhaps the exam does contain a modicum of racial bias. Certainly, these issues should be explored and, in fact, the State Bar of California is carefully examining these queries. But to use a health pandemic as a platform for an “easy way in” seems disingenuous at best.
Earlier, we commented about the ethical considerations surrounding a diploma privilege, and this morning solidified the underlying concern. Taking and passing a bar exam requires us to take a pause to appreciate what our license can do. It is a powerful tool that can easily be used to deceive or mislead the public. We have an ethical obligation to the communities we serve. We have always told each and every bar exam applicant we have ever worked with that the struggle they endure studying for and taking the bar exam will make them better lawyers. If ever tempted to cut corners, misappropriate funds, or otherwise compromise the integrity of the profession they will remember how hard it was to obtain that license.
The struggle is real, so the story goes. While we understand and appreciate the situation we are ALL in, we find it impossible to advocate in favor of a privilege that should be earned – not freely given.