California bar brief pokes holes in some arguments for a lower bar exam cut score

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Amidst arguments that lowering the California bar exam cut score may help diversity in the profession, increase lawyer access for moderate-income residents and have no influence on attorney misconduct findings, the State Bar of California filed a data-heavy brief with the California Supreme Court taking the position that there’s scant evidence for the majority of those claims.

Traditionally, the cut score is set by the state’s bar exam committee, but in July the California Supreme Court amended the rule, asserting its own authority to determine the score, and directed the state bar, which is the administrative arm of the court, to study the issue. Rather than take a position on the issue, the bar’s board of trustees on Sept. 6 voted 6-5 to send the court three options—keep the score at 1440, where it’s been since 1986, lower the score to 1414 or lower it to 1390.

The California Supreme Court has not listed a date that it will release its decision, but many think that it will be in time to apply to the July 2017 bar exam scores.

California Accredited Law Schools, a group of non-ABA accredited law schools, this week filed a letter brief (PDF) with the state supreme court, arguing that setting a cut score of 1390 could increase diversity in the profession, without compromising public protection. Out of 776 California-accredited law school graduates who took the bar exam in July 2016, the pass rate was 12.9 percent, according to state bar data (PDF). For the 657 California-accredited law school graduates who sat for the February 2017 bar exam, the pass rate (PDF) was 15.7 percent.

Regarding the CALS assertion that a lower cut score would not compromise public protection, the state bar brief asserts that license exams are meant to distinguish between “minimally competent” candidates and those who could do significant harm to the public.

“They are not intended to predict the likelihood of future discipline,” reads a footnote in the brief (PDF). “Not only are data from the discipline system an incomplete measure of public protection, the relationship between discipline rates and minimum competence, which the [California Bar Exam] is designed to assess, is at best unclear.”

Also, the state bar filing mentions an unpublished study by two Pepperdine University School of Law professors who found that decreasing the cut score would increase the attorney discipline rate. The paper, released in June by Robert Anderson IV and Derek T. Muller, used lawyers’ law schools to estimate their LSAT scores and their LSAT scores to estimate their bar exam scores. Publicly available bar exam data and information about California lawyers’ discipline and disbarment was also referenced. They found a probability that attorneys with lower bar exam performance were more likely to be disciplined or disbarred than those with higher bar exam performance.

In arguing for a lower cut score, many law school deans have overlooked the study, Anderson told the ABA Journal. The state bar filing does mention it, and describes Anderson and Muller’s data use as a “creative solution,” as actual results of individuals’ bar exams are confidential.

The state bar did examine other exam cut scores and attorney discipline rates in other states. Alabama, with a 130 cut score (or 1300 on California’s scale), is the lowest in the country, according to the court filing, and Delaware, which has a 145 (1450) cut score, is the highest. The attorney discipline rates in both states are “strikingly similar,” the brief states.

That finding doesn’t mean anything, Anderson says Overall rates of attorney discipline are low, according to him, and enforcement varies greatly by state. He’d like more transparency with California bar exam data, noting that the state could analyze bar exam scores of individual lawyers who received attorney discipline, and summarize those findings without disclosing the individuals’ specific scores.

Diane Karpman, a California lawyer who’s defended attorney discipline cases for 40 years, is in favor of lowering the cut score. The state needs more people who represent individuals, she says, and that’s a client base of many who graduate from law schools with low bar pass rate averages.

She adds that graduates of law schools with high bar passage rates may have lower discipline rates because many go to large law firms, which are rarely targeted by state bar prosecutors.

“If you represent a human being, in areas including family law and personal injury, there are more state bar complaints,” she says. “IBM and Xerox do not call the bar when they’re unhappy with a lawyer. They file a claim for malpractice.”

Earlier this year, the state bar’s Law School Council endorsed lowering the cut score to something between 1350 and 1390. Looming behind concerns about the California cut score is a proposed revision to bar passage standards for ABA-accredited law schools, which would require a bar pass rate of at least 75 percent over a two-year period. The ABA’s House of Delegates voted against the proposal in February, and the matter is still under consideration by the Council of the Section of Legal Education and Admissions to the Bar.

Out of 21 ABA-accredited California law schools, 16 had pass rates below 75 percent for the July 2016 bar exam, according to information published on TaxProf Blog.

The best way to resolve the cut score question would be to follow advice from psychometricians, who are trained to study testing and don’t have a stake in matter, says Robert Hawley, the former deputy and acting executive director of the state bar. Much of the data submitted for cut score arguments has been biased, he adds, and over the years psychometricians have found that although the California bar is a tough one, it is not biased.

“Don’t listen to deans, law professors or lawyers, because they don’t have a clue,” he told the ABA Journal. “You have to look at the science.”

He notes that the state bar’s Committee of Bar Examiners, which has a significant amount of experience working with psychometricians, supports keeping the cut score at 1440.

Diversity in the profession, something that some say would be helped by a lower cut score, was also addressed in the state bar brief, as was improving access to legal services for California’s low-to-moderate-income residents.

While lowering the cut score could increase pass rates for all ethnicities, the brief states, there’s no way to determine that admitting more lawyers would increase the number who represent groups who traditionally can’t afford market-rate legal fees.

“Access to legal services depends on where attorneys choose to practice, the type of law they choose to practice, the cost of legal services, and other factors beyond simply increasing the pool of attorneys who practice law in California,” the filing reads. “There is no simple fix to the challenges of improving access to justice or diversifying the legal profession and any positive impact that lowering the cut score might have can only be fairly characterized as modest.”




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