Why Choosing Not to Take the Bar Exam Proves You Are Qualified to Practice Law

Let me be abundantly clear: In my hiring decisions I will never ever care whether someone took the bar exam. The best data available, through comparative tests, malpractice suits, and ethics complaints, indicates that passing the bar exam has zero correlation with being a good lawyer. But that doesn’t mean I won’t ask if interviewees took the exam. When the Washington Supreme Court granted a diploma privilege to graduates so they could practice law without sitting for the bar, students faced an unprecedented choice: take the bar exam or don’t. On one hand the future of their livelihood, on the other a pandemic-level risk of illness. As an employer, I couldn’t care less what decision they made, but I want to know how they made it. That answer will say more about their skills as a lawyer than the bar exam ever could.

In a 2008 study by the Law School Admissions Council, “Identification, Development, and Validation of Predictors for Successful Lawyering,” researchers investigated the correlation between LSAT scores, law school GPA, and effectiveness as a lawyer. Notably, even though LSAT and GPA are highly correlated with bar passage, the researchers found no correlation between either measure and effective lawyering. But that’s not what this is about.

To define “effective lawyer,” the researchers had to “empirically determine what lawyers view as factors important to effective lawyering.” They conducted hundreds of individual and group interviews with lawyers, judges, law faculty, clients, and law students to determine what made a good lawyer. The result was a list of 26 lawyer effectiveness factors. The study ultimately showed that behavioral assessments which touched upon those 26 factors were a far better predictor of effective lawyering than any test.

Our newest incoming attorneys were just given a behavioral assessment in the choice between the bar exam and diploma privilege. How they made that decision touched upon most of the 26 factors and it’s clear that the current class of graduates “pass the test,” even if they choose to forego the traditional bar exam. I don’t have room to address every factor, but I’ve highlighted some key examples below.

• Analysis and Reasoning; Problem Solving; and Practical Judgment: These students were faced with a choice between a dangerous test and a risk to their career. It was a problem to solve and making a practical judgment was a feat of analysis and reasoning worthy of praise. They had to think about the health risks to themselves, the risk to their family, the possibility of the exam being delayed, the impact on employment, the value of entering practice early, the possibility of moving to another state, and on and on.
• Creativity/Innovation: At no point in the history of the legal profession have students faced a question like this. They had no precedent to rely on and no mentor to turn to. Finding the answer that was right for them required outside the box thinking.
• Fact Finding: Unless a coin flip was involved, odds are these individuals did a lot of fact finding. How will potential employers feel? What are the medical risks? What happens if I delay my career?
• Strategic Planning; Organizing and Managing One’s Own Work: When the Supreme Court’s decision came out, most individuals were already studying. Many had taken leave from their firms or gone part time. Individuals had to weigh their workload and determine the most valuable use of their time: working full-time or studying?
• Able to See the World through the Eyes of Others: Though this was a personal decision for the individuals involved, they had to think about how that decision would be viewed by others. I’m writing this article because I suspect many readers will look down on those who chose diploma privilege (please don’t). Individuals had to think about public perceptions and weigh those risks, seeing the world through the eyes of other attorneys and the public.
• Passion & Engagement; Diligence: Part of why I’ll ask these individuals about their choice is that I want to know how thorough they were. Was it a coin flip? Did they take the bar because they had already invested in it? Or did they engage with the question the way a good lawyer does?
• Stress Management: This wasn’t normal bar-study stress. These individuals were studying through a deadly pandemic, civil unrest, and an economic tragedy this world hasn’t faced in our lifetimes. Yet in the middle of all that, they did the research and made a decision that would impact the rest of their lives. I want to know how they managed that stress—not every lawyer I know could.

Conclusion

Regardless of your opinions about diploma privilege, these new lawyers didn’t choose to be in this situation, and we must separate our opinions about the Supreme Court’s decision from our opinions about them. About 75 percent of those who chose diploma privilege probably would have passed the bar regardless, another 10-15 percent would have passed in the winter. What decision they made shouldn’t matter—what matters is how they made it. In short, imagine you have found a new attorney that you believe would be an asset to your firm; who is intelligent, hardworking, and dedicated to the practice of law; someone who exemplifies these lawyer effectiveness factors. If you still don’t want to hire them because they didn’t take the bar exam, then please send them my way.