The Bar Exam: A Test Of Competence Or A Test Of How Good You Are At Committing Malpractice?

Over the past month or so, I have beaten the bar exam like a dead horse. I have one more thrashing to lay on it before I let the subject rest for awhile.

As I have publicly indicated over the past month, I was too impatient to wait for Connecticut to figure out its bar exam so I signed up for the Colorado bar exam. I took that exam over the past couple of days, and I can tell you that it was a miserable experience to take it in a pandemic. Part of me loved the misery, and the other part of me seethed at the rigid arrogance of state judiciaries who can’t even fulfill their constitutional responsibilities in operating the court systems but can force law graduates to take a bar exam so they can rake in more application fees.

After taking the exam, one question stands out to me: Does the bar exam actually test legal competence or does it test how good you are at committing malpractice and getting away with it?

To date, I have yet to see anyone address the latter part of that question and with good reason. A candid consideration of the bar exam weighs more in favor of the latter answer than the former one.

The bar exam is a giant memory test. You are presented questions, fact patterns, and tasks to solve by your knowledge of “generally applicable legal knowledge.” In many cases, you are also presented with a set of choices to make: some right, some half right, and most arguable. Nonetheless, there is only “one right answer.”

The only ways that this format mirrors any aspect of actual practice are in the client intake process and objections during a trial. As a lawyer, you have to memorize enough knowledge of the law to know what you’re looking at, if you’re competent to handle the client’s matter, and what response to make to an objection. Your memorized knowledge guides your research and, ultimately, your preparation for whatever representative actions you’ll take on behalf of a client. Over years of practice, you’ll gain enough of a knowledge base with your area of practice that, to an untrained observer, makes it look like you’re practicing from memory.

Practicing law from memory is a dangerous proposition and a sure-fired recipe to committing malpractice. In the vast majority of cases, trying to solve a client’s problem or answer their question without doing research and repeatedly refreshing your memory with that research is malpractice. This is only magnified when you do not regularly practice in an area of law. The state judiciaries have recognized that reality of practice and have implemented disciplinary regulations to discourage and punish the practice of law by sheer memory. Connecticut’s Practice Book simply labels it “Competence” and provides a lengthy commentary on how lawyers can ensure that they are competent for a representation.

The bar exam, however, makes you learn law that you never studied before and that you’ll never use again simply for the purposes of testing. It then forces you to apply that law from memory without referring to anything to assist you in making the right decision. Not only does it force you to apply it from memory, but it also forces you to apply it to questions where the correct answer is arguable many times or relies on a minute nuance. In other words, the bar exam tests you on how good you are at  committing malpractice and getting away with it.

I have clerked in the areas of criminal defense and civil law and, once licensed, I will practice in those areas as well. Even in those areas of expertise, I am constantly researching and refreshing my knowledge base on every case.  It’s called being careful and practicing competently. If someone calls me to set up a trust for them or do their taxes, I am going to ask them how much they’re willing to pay to make it worth my while to become competent in a new area of the law. For the record, it better be pretty hefty. Otherwise, I am going to give them the name of a competent attorney who practices in the area of law relevant to their case.

I am not going to rely on some “generally applicable legal knowledge” to think that I can take their case. The bar exam should stop doing so too. It is testing folks on their ability to get away with malpractice, and sadly, it is probably encouraging a lot of bad attorneys to think that they can get away with malpractice in the chase of the dollar.

I have said my piece. Now I’ll await my results on whether I am good enough at malpractice to be admitted to the bar.

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