Common sense about bar exam

The Gazette Opinion Staff
Published: February 1 2014 | 12:01 am - Updated: 29 March 2014 | 2:59 am in
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By Roger W. Stone

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In Iowa, doctors, nurses, architects, structural engineers, truck drivers and others have to pass a written exam. If your profession affects the life, health or safety of others, Iowa generally requires a demonstrated level of competence by exam before you’re turned loose on the public.

Also in Iowa, Realtors, securities brokers, CPAs, underwriters and insurance brokers have to pass a written exam. If your profession involves the major financial transactions of someone’s life, Iowa generally requires a written test before you’re turned loose on the public.

For more than 60 years, Iowa has required lawyers to pass the bar exam before representing Iowa clients. There is probably not a lawyer practicing in our state who did not pass a bar exam. Now that enrollment is falling at the Drake and Iowa law schools, up pops a new idea to do away with the bar exam. The timing is not coincidental; rather, lawyers know cause and effect when they see it.

THIN ARGUMENTS

Borrowing lessons from our politicians, the deans and others who advocate ending the bar exam clothe the idea in terms of economic development, keeping Iowa’s students home or alleviating student debt. While all are good ideas, they have almost nothing to do with ending the bar exam. Their arguments are like the emperor’s new clothes — not much there.

The problem with ending the bar exam is that, every year, five to 10 people fail it. The people who fail it can retake it over and over until they pass it, but they must pass it to represent clients in Iowa. Without this minimal threshold or barrier to entry to the profession, these five to 10 lawyers will be representing Iowa’s citizens, and, in a decade, they will number 50 to 100.

The Iowans who will find these lawyers need good representation. Likely, these consumers are getting divorced, in custody battles or charged with a crime. They will pick a lawyer, and some will pick a lawyer who could not have passed the Iowa bar exam. Good luck with that choice. The future practitioners who could not pass the bar exam probably will be solo practitioners or in small groups, and practicing in the fields with the least sophisticated consumers of legal services — criminal and family law.

COMPETITION IMPACT

The declining enrollments also will change the law schools, necessarily. Law school faculties who teach smaller student bodies may lose their enthusiasm for weeding out or failing students who don’t work as hard or attend class as much. The incentive will be to keep the tuition-paying students in school, even if performance declines, because a law school only needs the number of faculty required to teach the available students, and as enrollment continues to shrink, the faculty positions will follow. So economic theory would say the rigor or competition within the student body will decline, as enrollments decline, because the faculty will want all who start to graduate. Also, as enrollment declines nationally, the quality of the students in each entering class declines also or the classes continue to get smaller.

Another change would result from abandonment of the bar exam: Law students will be incented to meet the minimum graduation requirements, rather than to graduate and prepare to pass a bar exam. Students who do the minimum to graduate will practice, regardless of how they might have done on the bar exam. Necessarily, the abandonment of the bar exam will modify some students’ approach to their curriculum, class attendance and study habits. If law students are nothing else, they are rational economic choice makers.

The arguments in favor of abandoning the bar exam, frankly, don’t impress. If law school debt is so crushing that students need to be able to work three months sooner, then law school is too expensive. The State of Iowa should be embarrassed if it has made legal education so expensive that it has to do away with a written competency exam so that students can start repaying the debt immediately upon graduation, rather than to pass an exam. Many law students who graduate can work, if they need to start repaying debt, but they just cannot represent clients until they pass the bar.

EXAM NOT A BARRIER

A few students might choose to stay in the state rather than migrate and have to take a bar exam, but for all but the weakest students, a bar exam is an insignificant barrier to entry to their chosen profession; all but a few pass it, so it is a very small motivator in the choice of where to work and live.

As for economic development, allowing the marginal law students who might not be able to pass the bar to practice law in Iowa so long as they graduate seems a remote way to improve economic development in Iowa. It would arguably be better to have the available demand for legal positions filled by competent practitioners, rather than just to have them filled.

In the end, the bar exam only weeds out five to 10 lawyers a year. Turning loose on the Iowa consumer those lawyers who could not pass the bar exam is a new idea, and one that will inevitably have sad and harmful results for Iowa consumers of legal services who pick a lawyer without the competence to pass a bar exam.

Abandoning the bar exam because of declining enrollment at Drake and Iowa law schools merely shifts the cost from the law schools to the unsuspecting public. The law schools get an added benefit of some more value in their degrees because students no longer have to take the bar exam, so the degree is somewhat more attractive, and the only losers are Iowans who choose to be represented by a practicing lawyer who could not have passed the bar exam.

Iowans who need lawyers deserve better.

Roger W. Stone is the managing partner of Simmons Perrine Moyer Bergman PLC, the largest legal firm outside Des Moines. Comments: Rstone@simmonsperrine.com

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