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Is lowering California’s bar exam cut-score a consumer protection issue?

December 19, 2017
Writing letters by Helloquence via Unsplash.

Pepperdine Law professors Robert Anderson IV and Derek T. Muller recently published an article titled “The High Cost of Lowering the Bar.”

The article looks the correlation between low bar exam scores and the likelihood that an attorney will be publicly disciplined in the future.

The authors use this correlation to caution that lowering California’s high bar cut score could be a consumer protection problem because it will allow more attorneys to practice in California that pose a higher risk of engaging in unethical behavior.

California doesn’t publish exact exam scores for attorneys, so the authors had to make a series of projections including average school LSAT rates and bar passage scores. We eventually get left with the non-surprising observation that lawyers from less prestigious schools get disciplined more than graduates of elite schools.

Chart of bar exam test scores and discipline rates by law school

Predicting future attorney malfeasance

The correlation between law school quality and attorney discipline rates may be unremarkable, but Muller and Anderson make an interesting observation that employment paths are an indicator of whether an attorney is at risk for discipline in the future:

“Employment opportunities may differ significantly and contribute to different discipline rates. Graduates of more elite law schools secure better jobs, which provides them greater financial security and perhaps reduces the likelihood that they would feel compelled to engage in certain types of unethical behavior, such as stealing money from a client.

Indeed, many graduates of elite law schools working at elite law firms likely never handle billing, whereas solo practitioners are much more likely to handle clients’ money and engage in behavior likely to lead to commingling of funds. It may be the case that graduates of more elite law schools are more sophisticated in covering up their unethical behavior or are more likely to successfully resist allegations before the state bar.”

Deborah Merritt made a similar observation over at Law School Cafe:

“Lawyers in solo practice and small firms receive over 90% of disciplinary sanctions. Since graduates of low-ranking law schools are more likely than their more elite peers to pursue those practices, they are also more likely to encounter discipline.”

Merritt discusses several reasons why the bar exam is an inadequate predictor of future disciplinary problems, including the small percentage (4.14%) of attorneys who are disciplined for incompetence. The bar exam is a measure of the minimum competence required practice law, not a predictor of ethical behavior.

Or, stated another way:

“[L]icensing authorities should not consider correlations that bear no causal relationship to the qualities that the exam measures. A test designed to measure specific knowledge and skills should not be used to predict malfeasance.”

The original paper and Merritt’s response are worth the read:

Paper: SSRN, “The High Cost of Lowering the Bar,” Robert Anderson, and Derek T. Muller. May 30, 2017.

More: Law School Cafe, “Bar Exam Scores and Lawyer Discipline,” Deborah J. Merritt. June 3, 2017.

Photo: Helloquence

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