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How the decline of bar exam passage rates impacts law students

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Samuel Chang

Samuel M. Chang, the outgoing 14th Circuit Governor for the ABA Law Student Division, spoke at an event titled “Declining Passage Rates on the California Bar Exam: Possible Explanations and Impacts,” an informational hearing of the California State Assembly Judiciary Committee on Feb. 14.

Chang spoke during a panel titled “Possible Impacts of the Decline in Bar Passage Rates Upon Consumers and Different Sectors of the Legal Community” – its subtitle was “How Might the Decline of Bar Exam Passage Rates Impact Law Students, Legal Aid Providers, Consumers and the Public Interest?”

Here is a video of his remarks and a transcript:

Good morning.

Thank you for inviting me to speak today. My name is Samuel Chang. I am a second-year law student, the student body president of UC Hastings, and a student director on the Korean American Bar Association of Northern California. I am also the 14th Circuit Governor and serve on the ABA Law Student Division Board of Governors, but I do not speak for or on behalf of the ABA or the Law Student Division. Here, I am testifying in my capacity as a California law student.

I come to shed some light on how the decline of bar exam passage rates impacts law students. I received comments and stories from many ABA law student members in California.

So, what’s important to law students? First, affordability of their education and second, subsequent employment after graduation. The low bar passage rate exacerbates both. Simply put: no bar, no job.

But this has an emotional impact too. Here’s some words students around California have used to describe the bar passage rate: Traumatizing. Demoralizing. Terrifying. Deflating. Devastating.

It is not simply a mere inconvenience to not pass the bar. The bar exam period is long and expensive. Right after a grueling three years in law school, another grueling three months of no pay, mounting debts, and continuous studying accompanies these students as they prepare for the bar exam. So, imagine, missing the threshold by 0.7% like one of the students. This student felt disheartened that despite taking a commercial bar prep program, they could not pass and start their legal career. Another student lost a job offer at the Public Defender because they failed the bar. Subsequently, that student could no longer afford to live in an apartment and moved back home.

1. California Students Are Better Than Their Out of State Counterparts

Yet, California students because of their low bar passage rate is not any worse than those from other jurisdictions. California students have always outperformed their out of state peers. In 2012, California students from ABA-approved law schools passed the California Bar 20% higher than those from out of state ABA-approved law schools. Last year, California students still passed 3.3% higher than those from out of state ABA-approved law schools. If the California bar passage rate is any indicator, the quality of California students is in fact higher than those of out of state students. Naturally, this frustrates many students.

2. Students Shift to Other Jurisdictions

This frustration has consequences. Students may choose to instead practice in a different jurisdiction simply because they have a greater chance to pass the bar there. The high financial and career risk has prompted students to reconsider being in California. This means that California may lose lawyers simply because of a score. Many law students have written that they love California, and they chose a California law school to practice here. But what’s the point, they write, if they cannot pass the bar? Such a shift means less lawyers for the growing population of California. Less lawyers to protect consumers. Less lawyers for the state. Less lawyers for legal aid. In having a higher threshold for bar passage, California stands to lose quality attorneys all because of the bar and stands to widened the so-called “justice gap”.

3. Low Bar Passage means Less Chance of Employment

Low bar passage rate means a greater chance of unemployment for another year. Not many law firms or organizations are willing to retain students who have failed the bar. No job means an inability to pay the loans.

The low bar passage rate does not just end job opportunities but it influences it. A school’s low bar passage rate skews an employer against the students and may prevent students from receiving a job offer simply because their school’s bar passage rate was low. The low bar passage rate by a school affects the reputation of that school and in turn all the graduates of that school. Even students would base in some manner the success of the school on bar passage. Simply put, a low bar passage erodes students’ and employers’ confidence in the school – irregardless of what that bar should mean. In turn, students feel that because of a low bar passage rate, they as students feel second rate. Even more so, it reflects poorly on all students. Students have stated that they feel that attorneys have become disheartened and disappointed with the quality of new attorneys simply on the basis of the low bar passage rate.

4. Low Bar Passage Means More Debt

Some students have expressed a lot of anxiety over “a larger black hole of debt.”

Multiple retakes of the California bar exam mean more law students have to add to their already burdensome debt by paying again the $830 bar examination fee. Not to mention that interest is beginning to accrue on their law school debts.

My analysis of the Standard 509 forms of all 21 ABA-accredited law schools found a higher number than the white paper’s. On average, a student, without any financial scholarship, would accrue $226,851.71 in tuition and living expenses. On average, living expenses amount to about 58.27% of what tuition is. However, if we were to take into account the 67% of students who receive some grants, the average would be $129,417.00 (assuming that all students receive the median grant of $22,363.29 for three years). But, add in the $830 bar examination fee ($677 if not using a laptop) each time one takes the test and another $2,000 or more for bar prep and a few more thousands for living costs during that time, that’s considerably more than the $148,167 average salary lawyers receive in California. But remember, that’s a salary for ALL lawyers. According to the National Association for Law Placement, an average salary for an entry level lawyer in a public interest or government entity ranges from $44,600 to $51,100. That means even if a public interest lawyer were to give up their entire salary, they would still not be able to pay off their law school loans for more than three years. Delaying a year to retake the bar only worsens the situation.

But that cost can be even higher – most law students still have outstanding undergraduate loans. Some students have placed their whole life on hold just to do law school. They worked hard to get jobs after graduation. But without the ability to pass the bar, they are left back in the place they started only with a considerable amount of debt.

But it’s not just that, a low bar passage rate feeds into the predatory bar prep industry. The fact that top bar passage companies charge upward of $3,995 without publishing their bar passage rates is concerning. Even when a bar prep company does, there is no guarantee that one would pass the bar – Themis, one of the three most popular bar prep companies, only had a 66% first time pass rate and 77% pass rate for those who completed 75% of the course. But what are students to do? Not take it? They take this financial gamble because (a) everyone around them seems to be doing it, (b) they are encouraged to do so, and (c) they would rather put in money to increase their possibility of passing the bar. But this is parasitic upon law students. Bar passage companies, not students, not the California public, benefit from a low bar passage rate.

5. Legal Education Changes

But as is, legal education also takes a hit from a low bar passage rate. Students become more worried about passing the bar then getting a job. Instead of taking clinics or legal work, they stay at school and take more bar courses. One student phrased it well that “the great irony is that to be a lawyer at all I have to be more unprepared for the actual job.”

Legal education was not made to teach to the bar but teach practical skills and experiences to be a lawyer. But the bar exam makes legal education all about being better test takers than better lawyers. The bar fails to test the competence of law students. One student wrote that “[t]he skills of a great lawyer cannot be measured by a written exam.” It is counter-intuitive to teach to pass the bar but not develop the skills to be an attorney. Students have made it clear that despite a diminishing bar passage rate, law schools must not throw the baby out with the bath water and should continue to train lawyers not just teach to the bar.

6. Reforming the Bar

I have heard that the bar is a bar of competence. But if it is of competence, I hope you ponder this point. If U.S. Senator Kamala Harris, former Dean of Stanford Law School Kathleen Sullivan, and two California Governors Jerry Brown and Pete Wilson could not pass on their first try but were widely successful as California’s attorney general, a top law school dean, and governors of our great state, what does that say of the bar? Indeed, a student pointed out that “a timed test where one is required to memorize rules in and pull them out of one’s head in the timed environment [is] something that no competent attorney would ever do when representing a client.” Another agreed stating that the “the practice of law is not shotgun decision-making or racehorse exams.”

The white paper makes it clear: a lower threshold on the bar exam means a higher bar pass rate. But a lower threshold, as one student puts it, also means less students putting their life on hold for another six months to retake the bar. Less students who are unable to pay back their loans. Less students who are unable to be lawyers.

A lower threshold on the bar exam would also be life changing. In response to failing the bar, a UC Hastings student committed suicide. So, I ask, could this student have been here today if the state bar had lowered its threshold? Possibly.

I leave you with this last quote: The UC Hastings Deans wrote a letter soon after learning about the suicide of the student, writing: “But that is not the only story we need to tell, nor to hear. We need to hear that how we score on an exam is not a measure of our potential as a lawyer, much less our worth as a person.”

In recent times, the public has realized the importance of lawyers. There are many good law students in California. There can also be just as many good lawyers. And that starts with changing the arbitrary standards of the bar examination. I urge you to take action.

Thank you.

Samuel Chang Samuel "Sammy" Chang, a rising 3L, is serving his second term as the student body president at University of California Hastings College of the Law in San Francisco. He is also the inaugural Director of Legal Education for the ABA Law Student Division and will sit in as the Law Student Representative on the ABA Council for the Section of Legal Education and Admissions to the Bar.

  • Jesse Jones

    <-1st year attorney in private practice at a mid-sized firm in Missouri. I found this article to be full of shoddy thinking. I will respond to only a handful of the dubious assertions therein.

    "Even more so, [a low Bar passage rate] reflects poorly on all students."

    –Not so. Obviously, a low Bar passage rate reflects *better* upon those students who do manage to pass the bar. Furthermore, a lesser supply of lawyers in California means less competition for jobs for the majority of young lawyers who do pass the bar. A lesser supply of candidates in turn drives up salaries, which benefits young attorneys who do pass the bar by helping them off any debts they may have.

    "But what are students to do? Not take [a bar prep course]?"

    –Sure, why not? As for me, I bought a couple Bar Prep study guides for less than $100, and watched some free YouTube videos, and passed my own bar exam (Missouri) on the first attempt.

    "But this is parasitic upon law students."

    –Parasitic is an awfully strong word. The author cites peer pressure, but nobody is forcing law students to spend $4,000+ on bar prep materials. These courses are available for those who want and can afford them. Again, as for me, I found the cost of a full Bar Prep course prohibitive, so the Bar Prep companies didn't make any money off me.

    "The bar fails to test the competence of law students."

    –Doubtful. Clearly, the Bar Exam measures something. Even if all the exam measures is knowledge of legal principles, I would argue that such knowledge is strongly correlated with ability as an attorney.

    "I have heard that the bar is a bar of competence. But if it is of competence, I hope you ponder this point. If U.S. Senator Kamala Harris, former Dean of Stanford Law School Kathleen Sullivan, and two California Governors Jerry Brown and Pete Wilson could not pass on their first try but were widely successful as California’s attorney general, a top law school dean, and governors of our great state, what does that say of the bar?"

    –Noting much. All it says is an elementary point: that first-time passage of the Bar Exam is predictive but not determinative of career success.

    • E.J. Dieckman

      Young man, the bar exam in Missouri is not relevant to the bar exam in California, nor is it even closely comparable in level of difficulty. You prove Mr. Chang’s point. Young new and inexerienced attorneys like yourself chose to practice in Missouri because it was cheaper and easier than trying to make it in California. Mr. Chang’s article was focused on the impact of the low passage rate of the California bar exam – not the relatively easier Missouri bar exam that you claim to have passed without a bar prep course. I doubt if you would pass the bar in California using the same strategy or method. Mr. Chang’s comments are on point, whereas your comments are not even relevant to the topic of California and the bar exam there.

      • My comments are relevant to the “bar exam issues in California” because California does not exist in a vacuum. It makes no sense to talk about California as if it were its own island. I am told that there is an oversupply of lawyers in California (and more generally, many public policy issues such as housing, water, and traffic crises that relate in some way to overpopulation in California). If rules like the Bar Exam are encouraging lawyers and people in general to move out of California, is that necessarily a bad thing?

        In my case, I would say that I chose to practice law in Missouri because it’s where I went to law school and I like it here; I saw no reason to move. The difficulty or lack thereof of the bar exam had no impact on my decision. (Sidenote — The California Bar Exam may be “the toughest in the nation,” but the notion that it is not at all comparable in difficulty to Missouri’s is laughable.)

        That said, if a law student was really concerned about the difficulty of the California bar exam/cost of bar prep course, they are certainly welcome to choose a different jurisdiction than California to take their first exam. That may be a rational decision for that student, and one that benefits our country as a whole by encouraging that student to move out of an oversaturated legal market.

      • Par Par

        How is it “easier” to practice law in Missouri” EJ Diekman? (Yes, their bar exam is easier, but don’t think it would be “easier” to be a public defender in Missouri). It’s astounding how many lawyers and law students give zero shits about what we are all supposed to be fighting in this profession, INJUSTICE! Our profession is STARVING for lawyers who 1) care about equality under the law for ALL people 2) are knowledgeable about the barriers to justice in underserved communities (be it in California or Missouri) 3) have the ability to listen to their clients in an objective and nonjudgmental manner and 4) care more about helping their fellow man than driving an expensive car (or other arrogant trappings of excessive wealth). I failed the CA bar this summer, and what kills me even more than the 100k in debt I now have, is seeing how many people where I live are in desperate need of legal aid and/or Public Defenders with the time and resources to fight for their rights to the max. Where I live, it is virtually impossible to get representation from a legal aid attorney for an eviction or public benefits issue…no “over saturated market” here sadly…and even when I lived in the Bay Area, the supply of legal aid attorneys was dramatically below the demand. Won’t speak for myself, but know many incredibly talented law students who excelled in the practice of law during my post bar at a PD’s office who are now unable to continue their good work simply because their standardized test taking skills were below what our state bar foolishly covets.

    • Danny

      Thanks for the comments Jesse.

      The Missouri bar is ranked 39/50 in terms of difficulty. I commend your efforts on passing the first attempt.

      The California bar is ranked 1/50 in terms of difficulty (see official ABA disclosure link below)

      Missouri bar = one of the easiest bar exams in the country /// CA bar exam = the hardest in the country

      With these facts in mind, i think you can guess where im going with my discussion………

      (Source – http://witnesseth.typepad.com/blog/2013/04/the-most-difficult-bar-exams.html)

      • Par Par

        Also, I wonder how Jesse Jones even found this post. Go do some pro bono work if you have that much free time!!!

  • DannoDISQ

    The ABA doesn’t care in the least. They don’t actually desire all attorneys to pass the bars (not just California) because there are associations that have been fighting the objective comments of people like Mr. Chang. The American Trial Lawyers’ Association, California Bar, And every city bar in the nation want fewer attorneys to reduce competition. But they certainly don’t mind the law schools getting all the financial aid from students who cannot pass any bar. Chang is correct that law school doesn’t prepare graduates for their profession. The ABA has a ballgame that itcontrols, and it’s not about to allow changes so drastic as Chang spoke of so intelligently.

    Just like USDOE decides what allundergraduate and grad schools will receive financial aid for their admits, the USDOE should take over law school curriculum. After all, taxpayer dollars should not be controlled by the ABA, a private association, which, in all reality, it shows this arrangement to be nothing more than the ABA circumventing our US Congress & Executive Branch as to the proper delegated authority to USDOE. Hopefully someone, or an advocacy group, files suit to get law schools where they belong, which is out from under the ABA & state bars. Discipline of attorneys is all that the ABA & state bars should be overseeing (under state supreme courts of course).

  • There is already an oversupply of lawyers in California. If the facts described in the article scare off some marginal candidates that is not a bad thing. If and when their becomes a serious shortage of lawyers, then we worry about reducing standards.

    No matter how hard the California bar is, there seems to be an endless supply (oversupply) of candidates for California bar membership.

    When there are excess numbers of lawyers, the number of frivolous lawsuits and unnecessary billing increases, that is just normal hyper-competition behavior. There is no societal benefit from these consequences.

    • Z4

      While I do not agree with Mr. Chang’s appeal to sympathy-type arguments, you seem to be missing the point of the bar exam. The intent behind the exam was to protect the citizens from incompetent attorneys, not practicing attorneys from incoming attorneys. Regarding the influx problem, that should be left at the feet of law schools, or the legal field itself and the field’s deterioration into a business model.

      • That’s not accurate. The point of any licensing scheme is to protect the public AND the existing trade members. For example unlicensed contractors can undercut contractors on price but at risk to the consumers. That’s called unfair competition. Lawyers like any other professional are a guild of sorts and should be protected from oversupply. Market forces normally work to do this but not when the government subsidizes legal education.

        • Z4

          I do not disagree with the analogy; however, I do not see how that is comparable to preventing candidates from acquiring the license in the first place. Regarding your oversupply point, I believe we are in accord but disagree as to the necessary means needed. That is, we should focus on the market, and not require the bar to do the heavy lifting.

          • Contractors have to pass a licensing test just like lawyers do, so the analogy is there.

          • Z4

            Right, the analogy “is there,” but–assumedly–the process of acquiring a contractor license is not preventing a large group of qualified candidates from joining the work force just so current contractors can feel safe. My point was simply that requiring appropriate licensing to protect consumers and current professionals is one thing, but the inappropriate hurdles to get that license are the problem here.

          • There are no inappropriate hurdles here. And the degree of difficulty of the hurdles can reflect oversupply or undersupply. Thus, when we are desperately short of teachers, standards are lowered. But when there is a surplus there is no need to lower standards. The Bar should be a tough test but even in California the pass rate for those from top tier schools is very high and the limited failures can probably be chalked up to marginal students admitted under affirmative action policies.

          • Z4

            Again, the teacher-analogy is not analogous when the licensing hurdles appropriately judge compentency to teach. Phrasing my point slightly different, what is the harm of having a tough bar exam that actually judges compentency to practice?

          • Actually the bar exam DOES judge competency to practice. I know many lawyers who passed but don’t seem very competent so maybe it is not tough enough, but I don’t know anyone who failed the bar exam (not just in California but in every state where they tried) who would have been anything other than a very mediocre lawyer. Note: the bar exam does not test for financial success as a lawyer.

          • Z4

            Well, the fact that there are incompetent lawyers proves my point. But even if we assume you are correct, then you must believe JDs who pass the 2nd or 3rd time are somehow more competent to practice than their past-selves because they passed… Surely the simplest answer is the correct one; they have simply become better test takers.

          • JDs who pass on the second or third try may have just had a bad day, maybe they were sick or under some unusual family stress, etc. But it’s also fair to say they are less competent than those who pass on the first attempt. For example, in the military there are certain physical condition tests you have to pass but if you fail on the first attempt you can get a second attempt.

            As for being better test takers, that is a critical skill starting before law school. Much of the legal practice is like a “test.” For example, preparing a complicated motion or for trial involves a lot of research and careful preparation just like preparing for test, and then you have to perform under stress, just like with a test.

            If someone is not good at preparation or performance under pressure, then they are not going to be a good lawyer.

            Again, I am speaking of competence not success. The most incompetent lawyer can succeed financially under certain circumstances while the most competent one could fail financially….because success also involves other aspects of personality such as drive, ambition and yes ego.

  • piddaddy

    The author is arguing for a very low bar. Aren’t there already enough incompetent lawyers who were able to pass the bar? I would argue that the bar be set higher.