By Brian Tannebaum

Law360 (April 10, 2020, 12:49 PM EDT )

Brian Tannebaum

This is a time in our lives when we are increasingly asking why we do certain things. As misdemeanor defendants are mostly being given notices to appear, we ask, "Why did we ever jail them upon arrest in the first place?" As court hearings move to video, we ask, "Why didn't we do this earlier?"

So I ask, why are law students required to take the bar exam? More importantly, what relevance does it have to whether a law student will be a competent lawyer?

Law students go through three years of legal education (or not) and have to take exams in all the required courses (and some electives). More and more law schools are providing clinical education and courses about law practice management. And while the profession questions whether today's law students are prepared to be lawyers, we still make them sit in a large ballroom or convention center for two or three days and answer questions about legal concepts.

There are legal concepts that every new lawyer should understand — the basics of a contract, how property is owned and transferred, ethics, civil and criminal procedural rules, and how to determine whether a litigant has a claim for basic things like personal injury — duty, breach, causation, damages.

All the above is taught to every law student, usually in the first year. At the end of these classes is the dreaded final exam, which is typically the only evidence of whether the law student understands these concepts.

The bar exam has a varied history. The first written bar exam was in Massachusetts, in 1885. The multistate bar exam didn't come in to play until 1972. In Illinois in the 1800s it was an oral exam given by a Supreme Court justice, and likely not as cumbersome or varied in topics as today's bar exam.

Admitted in Illinois in September 1836 pursuant to an oral bar exam?

Abraham Lincoln.

And where did he go to law school?

He didn't.

There are four states in America where law school is not required for purposes of taking the bar exam: California, Virginia, Vermont and Washington.

These varied requirements tell us something — the bar exam exists in its current form because we've made it harder to become a lawyer (not to mention the score to pass has been inching up for whatever reason), and have convinced ourselves that a two- to three-day exam is what makes us comfortable saying that someone will be a competent lawyer.

I've used the word competent twice, because the profession doesn't certify that someone will be a "good" lawyer. A good lawyer is defined many ways. Clients will view their lawyer as good if they win their case. Judges will view a lawyer as good if they make good arguments — or don't make their lives difficult. Opposing counsel may view a good lawyer as someone who is courteous and agreeable.

But the profession is simply saying that by passing this exam, the law student (or self-taught lawyer) is competent to be admitted.

Maybe they just got lucky on the multiple choice. Maybe the reader of the essay portion liked the answer and saw the required buzzwords. Maybe this exam taker will go on to steal money from their clients, miss deadlines, or be held in contempt.

The bar exam tells us nothing. It's an antiquated hurdle that needs to go for the majority of law students.

And now we have law students faced with the possibility of a delayed exam due to COVID-19. Who's paying their rent and feeding them while they wait to start their jobs?

This isn't just a delayed exam, it's a delayed start of life. The ticket from the bar is going to be the beginning of all of that, and waiting months and months because of this global pandemic is going to cause chaos. Let's not do that, and let's make a decision that, while shocking to some, is being made in other educational venues.

Schools are jumping on the "test optional" bandwagon. Can you imagine applying to college without taking the SAT or ACT? Some schools have been test optional for a while, but it's happening more now due to COVID-19. I think our future college graduates will be just fine.

Thousands of law students in Florida have signed a petition to allow them to practice prior to passing the exam. New Jersey has taken the lead and said, "OK." Law students there can practice under an "emergency" status. Harvard Law Students have signed a similar petition.

I say let's go further.

Yes, I took the bar exam. It was the hardest thing I ever studied for, and I cried when I was told (over the phone in 1995) that I passed. But I was allowed to practice prior to passing the bar exam under Florida's certified legal intern program — I just needed someone to supervise my work (read: sit next to me or at least be in the same courtroom) while I was in court.

And I can't tell you that studying for, or taking, or passing the bar exam meant anything other than a satisfaction of passing a hard test.

I understand I am now a "gatekeeper" of the profession — a profession that many believe should be increasingly restrictive — and I understand many of my colleagues believe the bar exam is a necessary step to a law license: "I took it, so why shouldn't they?" "Let's make it harder to pass." "Keep adding topics."

The bar exam is meaningless. It's important only because it's been a part of our profession — in various ways — forever. It's one of those things we do because we've (mostly) always done it.

So what? Tell me how the bar exam decides this person is competent, and that person isn't. Some people are bad test-takers. Others get lucky.

As a gatekeeper, I say open the gates.

If the profession needs some form of comfort as an alternative to the bar exam, there are various options. Only admit students that went to an American Bar Association accredited school. For those that didn't, have an exam on the basic concepts. Consider increasing CLE requirements and include a first-year requirement that lawyers take a certain number of basic skills courses — basic estate planning, basic criminal law, basic business transactions. State bars could also develop a first-year course that includes an hour each on the basic types of practice — and include some sessions on trust account operation, ethics, and law firm management.

In Florida we have two requirements for newly admitted lawyers. One requirement is to attend a course titled "Practicing with Professionalism." The focus is on how to be professional and ethical. The second is a "Basic Skills Course" requirement, which requires all new lawyers within 12 months of admission to take three different basic skills courses.

A requirement like this could be expanded to require more basic skills education about representing clients in various practice areas.

State bars like to promote that their role is to "protect the public." This is done by making sure lawyers understand how to practice law — not how to answer a question on an exam. The competency — or incompetency — of lawyers should not be judged by a score on a test.

Plenty of lawyers prove to be incompetent regardless of their performance on the bar exam. It's not just time to delay the bar exam, it's time to reevaluate why we have it in the first place.

Lawyers are those that advocate for changes in the law. Let's start with dumping the bar exam.

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Brian L. Tannebaum is special counsel at Bast Amron LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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