The summer of 2020 brought the most concentrated and pointed discussion about the bar exam in recent memory—maybe ever. Much of that discussion centered around whether candidates for bar admission should be required to gather in large groups and sit for an in-person exam during a global pandemic. I can only imagine what new law graduates must have been feeling as those in positions of power decided their fate.
Ultimately, some states temporarily adopted diploma privilege or supervised practice rules to ameliorate the problem, others moved the exam online or otherwise changed the format, while still others moved forward with a business-as-usual approach. Detractors of some of the alternative approaches—particularly diploma privilege—lamented that the bar exam is our only way of assuring that the public is protected from incompetent legal representation and, without the bar exam, we open the public up to harm.
As one Supreme Court Justice in Louisiana put it in his dissent to Louisiana’s adoption of diploma privilege, “removing the sole competency filter for admission to the practice of law will create an emergency, not eliminate one. . . .We owe a responsibility to the public that an individual certified as a legal professional be actually qualified for the certification.”
There is one glaring problem with these detractors’ arguments: their underlying assumption is that the bar exam is truly a valid assessment of minimum competence. But is it?
A critical aspect of understanding whether the bar exam is a valid assessment is knowing exactly what minimum competence means—we have to know, in precise terms, what we are trying to assess before we can attempt to assess it. Unfortunately, the legal profession has historically lacked a definition of minimum competence. We have been taking it as a matter of faith that the bar exam does what it’s supposed to do.
I, along with my colleague Professor Deborah Merritt of The Ohio State University Mortiz College of Law, released a report last week that details the findings of a two-year research project aimed explicitly at developing an evidence-based definition of minimum competence. Our data is derived from 50 focus groups held across the country with new lawyers and those who supervise new lawyers. The report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, presents the 12 interlocking competencies—what we term building blocks—that constitute the definition of minimum competence.
The 12 building blocks are:
The ability to act professionally and in accordance with the rules of professional conduct: New lawyers told us they took their professional responsibility seriously—yet, while they had studied the rules of professional conduct in law school and for the bar exam, they still struggled to apply those rules in practice and had difficulty navigating unethical or unprofessional behavior by others.
An understanding of legal processes and sources of law: Even after completing law school and the bar exam, new lawyers admitted lacking a basic understanding of key legal, administrative, and legislative processes, as well as alternative dispute resolution channels. Many relied primarily on state or local law in their first years of practice, which is not tested at all on the bar exam (only federal law is).
An understanding of threshold concepts in many subjects: Focus-group members indicated that new lawyers need an understanding of the law as a whole rather than a collection of detailed legal rules—and most were adamant that new lawyers should not rely upon memory, with some calling it “dangerous” and “borderline malpractice.” This calls into question the core of how the current bar exam operates.
The ability to interpret legal materials: New lawyers agreed that being able to interpret legal materials is an essential skill, and to do so properly requires an understanding of the difference between holding and dictum in judicial opinions, the role of precedent, canons of statutory construction, and rules for interpreting contracts, as well as the ability to read carefully and keen attention to detail.
The ability to interact effectively with clients: New lawyers felt overwhelmed by—and unprepared for—the scope of clients they were serving, and this often left them struggling to bridge the gaps between themselves and their clients. Focus-group members revealed that new lawyers need more than just people skills, however; they need the ability to interact with clients in a lawyerly way. This opens the door for legal education and clinical work to have a key role in the lawyer licensing process.
The ability to identify legal issues: Real-life practice once again differed from what new lawyers experienced during law school and the bar exam. Identifying legal issues from actual conversations with clients (rather than superficial issue spotting on exams) was difficult, according to new lawyers, and required them to think critically, understand threshold concepts in a wide range of legal subjects, and interact effectively with clients.
The ability to conduct research: Focus-group members frequently stressed the importance of being able to conduct research—including answering specific legal questions posed by clients or supervisors, checking (or updating) their knowledge of legal doctrine, and locating information about local rules or practices. Once again, memorization isn’t key to new lawyer success; instead, minimally competent lawyers must know where to look for information.
The ability to communicate as a lawyer: Communication skills are key, including the ability to do so concisely, effectively, and in language that clients understand.
The ability to see the “big picture” of client matters: Our focus groups revealed that, oftentimes, new lawyers would get too in the weeds of client matters and struggle to see their clients’ problems at a high level—resulting in weak project management and difficulty figuring out how to guide client matters. Knowing legal rules and processes is one thing, but applying them strategically for clients is another.
The ability to manage a law-related workload responsibly: New lawyers found their workload overwhelming, and noted that failure to manage this workload effectively could irrevocably harm clients. Participants indicated that careful time management, meticulous organization, and effective collaboration are essential components of competent practice.
The ability to cope with the stresses of legal practice: Accompanying the stress of a law-related workload is the stress of being responsible for clients, with one focus group member expressing it was like “the weight of the world.” Being a competent lawyer requires the ability to cope effectively with stress, in order to ensure both attorney well-being and client satisfaction.
The ability to pursue self-directed learning: Many new lawyers were taken aback by the lack of training and supervision they received in their first years of practice, as they navigated new practice areas and acquired new skills on their own, with little to no instruction. In order to represent clients effectively, they took control of their own learning—indicating that ability to self-educate is a crucial component of minimal competence.
In its current formulation, our licensing structure decidedly does not assess all of these aspects of minimum competence. In addition to insights about the content of the bar exam, our research suggests that closed-book multiple-choice and essay exams with extreme time constraints may not be a good, let alone effective, format for assessing minimum competence in any case. Such exams bear very little resemblance to what real-world practice actually looks like.
What does all of this mean for current law students? It is looking more and more likely that the debate over how we handle the bar exam and licensure during the time of COVID-19 will rear its head again as we get closer to the February exam. I am hopeful that we are entering a time of experimentation and data collection that will allow us to truly understand the best approach for licensing lawyers.
Until we get there, though, our research provides crucial guidance to law students about what their first years of practice will likely look like—and the skills, knowledge, and abilities that current students should focus on developing.