Regarding the Bar Exam and Competency

A diverse group of law grads

When the Washington Supreme Court modified the Admission to Practice Rules to grant admission under diploma privilege criteria, it spurred a great deal of discussion about the bar exam.

Some of this discussion appears to assume the Supreme Court order is permanent. This does not appear to be the intent of the order. Many attorneys have complained about granting admission to practice law to individuals who have not taken the bar exam, essentially arguing the exam is a “rite of passage.” While I understand the sentiment, I reject its validity.

Jordan Couch, in a NWSidebar blog post, strongly suggests that choosing diploma privilege under the current conditions “will say more about their skills as a lawyer than the bar exam ever could.”

If only the questions diploma privilege raised were that simple.

What Does Measure Competency to Practice Law?

I will stipulate the bar exam is not a good measure of legal competency. And some studies question whether the bar exam is biased. However, if the bar exam does not adequately measure whether an individual can competently practice law, then what does? I will not stipulate that merely completing law school is an adequate measure.

Although law schools are modifying their curriculums to address the changing legal services market, it would appear they still have a long way to go. They need to continue to implement not only new courses, but also new unbiased methods to measure student performance, to ensure those students who have not adequately performed their law school studies do not receive a degree, and therefore do not qualify for diploma privilege.

There is little risk to a law firm adding a diploma privileged attorney to the firm. The hiring attorneys understand the law, the intricacies of running a firm, and know what interview questions to ask an applicant to make a good hire. Competent attorneys will also be there to supervise and mentor the new attorney as they learn the skills that neither law school nor the bar exam provide.

However, approximately 30-50 percent of graduates from Washington state law schools will not have a job offer when they graduate. They will likely start a firm on their own, and many of these new attorneys will do so without a mentor. They must fill in the skills gap on their own. So, what is the average member of the public to do when they have to decide which attorney to hire to represent them? Especially when, I’d argue, WSBA and the legal profession has done little to educate the public on how to hire a lawyer.

Washington courts have ruled a person may represent themselves without sanction for unauthorized practice (Dutch Village Mall v. Pelletti) but must be licensed to practice law before appearing on behalf of another party (Enters., Inc. v. Longview Plumbing & Heating Co.).

Further, competent representation is defined in the Rules of Professional Conduct as requiring, “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comments to this rule guide how one can gain competency to handle a matter.

This competency question is not limited to graduates of ABA- and non-ABA-accredited law schools. In the current legal services marketplace, automated web-based or hosted applications, many of which rely on machine learning, offer customers legal representation in matters ranging from traffic infractions to divorce, wills, and immigration. How should these applications be measured to ensure competency to practice law? They neither attended an ABA-accredited law school nor passed a bar exam, yet they appear to practice law under Washington courts’ definitions.

As a profession, we must address these questions and soon. I believe the correct way would be to call together both the Practice of Law Board, and the Access to Justice Board, and have these entities bring together the stakeholders—including the public, attorneys, and other officers of the court, law school students, and the law schools—to determine the correct measures to ensure people in Washington have broad access to competent and affordable legal services.