Bah Humbug: Bar Examining Committees’ Public Relations Stunts.

In the wee hours of this morning, a law school classmate breathlessly texted me that the Connecticut Bar Examining Committee (CBEC) would be discussing and recommending measures to curtail some of the limitations on the poor unfortunates stuck between their graduation and a non-existent bar exam.

My reaction? Bah humbug.

I am no Scrooge, and it certainly isn’t Christmas Eve. However, I couldn’t help but be incredibly skeptical of anything that the CBEC does. Vindication for my skepticism quickly followed. According to details reported by Law.com, the CBEC is only considering and recommending relaxations on practice limitations for bar exam-less individuals who work for some sort of legal clinic – usually run by law schools or, to be generous with the definition, public interest legal aid foundations.

I laughed when I read that story – not because of any humor or irony in the proposal, but because of the sheer hypocrisy. The measures are purportedly to relieve the burdens on recent graduates whose careers have been put on hold by the CBEC’s decision to cancel the July bar exam and simply tell them to wait to take the fall bar exam – one usually reserved for individuals who failed the February or July exams. However, the supposed relief is limited to graduates who remain inseparably tied to their law school’s apron strings or, again to be generous, participate in some public interest legal clinic that the state deems worthy. No relief is offered to graduates who have been fortunate to land a post-graduation job, which may very well depend on their ability to obtain their law license.

As a full disclosure, I fall into the group of less-than-good graduates who has never worked for a public interest legal clinic run by a law school and certainly has no plans of doing so in practice – it does not pay enough, folks. Despite my evil ways, I will ultimately do more to defend the public interest as a private practitioner than I will ever do in a clinic. The fees that I bring in the door will enable me to devote the hours that it will take to developing and presenting novel legal arguments that I would never have the time to if I was limited to helping the poor, the chronically needy, etc. That being said, don’t get me wrong. I admire those who engage in public interest work, and I think that they make valuable contributions. I personally will be more efficient and effective as an evil private practitioner.

Returning to the CBEC, the CBEC’s measures are not designed at helping anyone, but rather at attempting to pacify recent graduates who have more incentive than any previous class of law graduates to do away with the bar exam. In other words, the CBEC has attempted to trade trinkets for Long Island with the 2020 class of law graduates. Unfortunately, most of the Indians seem content to buy. 2020 graduates like my classmate  – an individual smarter than me – will rejoice that relief is being offered and then choke on their own saliva when they find out that they don’t get to eat the pie.

I understand that the issue is sensitive for many practicing lawyers because the bar exam is a ritualistic hazing supposedly designed to weed out the bad from the good. I personally don’t see how an eight-plus hour multiple choice exam is going to test your ability to read cases, statutes, and regulations and then formulate and present arguments to a judge in court, but that is beside the point. I don’t even deny that the Connecticut Judiciary has an inherent supervisory authority over who may qualify as attorneys – one that is well-recognized in history and tradition. The Judiciary has delegated that role to the CBEC, which, in turn, has partnered with the National Council of Bar Examiners (NCBE) to utilize and administer a nationally developed bar exam to screen applicants from the bar. Even as a law clerk, I have shaken my head over the poor work of opposing counsel, and I have lamented the time that I have spent trying to figure out what rubbish that they are trying to argue. So I don’t deny that the bar exam may have some benefit in culling the herd of fresh-faced graduates.

Let’s talk about the NCBE for a second. Its president and CEO is Judith A. Gundersen. She is a graduate of the University of Wisconsin Law School. She never took a bar exam to become a practitioner. Yes, that’s right. Wisconsin uses a “diploma-privilege” system where you are automatically admitted to its bar if you attend a law school that meets its regulatory requirements. Ms. Gundersen used this system, and she is apparently so accomplished and smart that she now leads the organization responsible for testing most of the other law graduates in the country. Furthermore, state bar examining committees such as the CBEC are so intent on protecting the integrity of the profession and the public by administering a bar exam that they continue to partner with an organization headed by someone who never took a bar exam to administer their bar exams.

I call total hypocrisy on the part of the CBEC and the other jurisdictions that continue to subject their graduates to the bar exam. I issue an open challenge to the Connecticut Statewide Grievance Committee to publicly release data showing how many times newly admitted lawyers (lawyers in practice for three years or less) have been grieved and disciplined versus how many times veterans of the bar (ten years or more of practice) have been grieved. I am willing to bet the bar application fee three times over that newly admitted lawyers are grieved and disciplined at a far lower rate because they are more conscious of what they don’t know and more observant of the Rules of Professional Conduct’s commands on how to achieve competence.

Consequently, while the CBEC – as a delegation of the Connecticut Judiciary – does have the inherent supervisory authority to certify that applicants are suitable to practice law, the Rules of Professional Conduct and the disciplinary process can readily take the place of the bar exam, which is not necessary or an accurate assessment in any shape or form and only serves as a hypocritical mask for an attempt to monopolize a profession. The CBEC’s effort to offer some relief is a poor facade born out of a realization that the bar exam is impracticable, an unnecessary burden on the entry into the profession, and totally unnecessary as long as the practice of law is regulated by the Rules of Professional Conduct.

I am done ranting, and I will admit that this is an incoherent rant at times because I am irritated. I always knew that the day would come when an obstacle would plop down in my way of taking the bar exam. All I have to say is that this young man is going west.