by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association
It has become fashionable in recent years to question the utility of the bar exam. The exam topics largely overlap with what is already taught in law school. The exam tests general legal knowledge when attorney specialization is the rule, not the exception. Oral communication, counseling, and negotiations are irrelevant to the exam, but central to the practice of law. And bar exams are extremely difficult with no obvious connection to ensuring applicants are capable of or prepared to represent actual clients, which suggests that the exam’s real purpose is to limit competition for lawyers’ jobs.
In recent years, state bars and supreme courts have considered various potential changes and alternatives to the bar exam. In October 2024, the Supreme Court of California rejected the recommendation of a commission that alternative methods be adopted for assessing minimum competence for entry into the profession. Because this is California – where the cause of and solution to so many problems originate – attention should be paid.
In October 2020, the California Supreme Court established the Joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar Exam. After 17 months of work, the commission recommended the development of a new California bar exam but could not achieve consensus regarding an alternative pathway to licensure. The Board of Trustees for the California bar seemed disappointed in this result and invited the commission members who supported a bar exam alternative to submit a proposal for consideration.
What that commission working group came up with was a Portfolio Bar Examination (PBE) as an alternative pathway to licensure. Candidates who choose this option would be required to complete law school courses in specified doctrinal subjects. Then they would obtain provisional licenses and work under the supervision of licensed California lawyers for four to six months. During that time candidates would assemble portfolios of work product that would be assessed by independent graders trained by the California bar. Candidates who achieved passing scores on their portfolios would not take the two-day bar exam but would have to fulfill all other requirements for admission to the bar. A pilot program was proposed.
Supporters said the alternative path to licensure would help graduates who do not have the time or money to afford pricey bar exam study courses – a burden that they say falls disproportionately on historically disadvantaged groups – while adding to the pool of attorneys who work with underserved clients. To those who view California from afar as a bastion of liberalism, this proposal might sound like a slam dunk – helping the poor and historically disadvantaged groups gain access to legal services and jobs sure sounds Californian. However, when it comes to lowering barriers to entry to the profession (read: more competition), the members of the California bar as ridged of an interested group as you are apt to find.
The PBE proposal was circulated for a 30-day public comment period, during which 2,814 public comments were received. Only 24% of the comments agreed with the proposal; 4% agreed if the proposal was modified; and just over 70% disagreed. Just under 1% of commenters took the time to comment that they had no position, just in case silence (taking no position) did not express clearly enough that they had no position.
The theme that ran through the opposing comments was that the PBE was insufficient to assess minimum competence. The PBE does not require the same broad subject matter knowledge as the bar exam; there are insufficient protections against fraud in producing candidate work product for review; there is no guarantee that PBE candidates would work in areas of the law where legal services are needed; and the consistency and quality of supervision would vary from candidate to candidate, leading to varying outcomes and a lack of standardization.
The hostility of the California bar to the PBE proposal was reminiscent of 2022, when California’s legislature and governor blocked the California bar’s attempt to implement Arizona-style reforms that would have allowed non-lawyers to either participate in law firm ownership or to perform legal services normally reserved to lawyers with the goal of increasing the availability and decreasing the cost of legal services. The effort to kill those reforms was spearheaded by politically powerful California law firms and legal interest groups (read: political donors) using the same justification that killed the PBE – protection of the public.
On October 10, 2024, the California Supreme Court rejected the PBE proposal. In a nod to the PBE’s goals, the court said that the California bar exam should have “a significantly increased focus on assessment of skills along with the application of knowledge and performance of associated skills for entry-level practice, deemphasizing the need for memorization of doctrinal law.”
How one could construct an intense, two-day, 19-subject, pass fail test to assess minimal competence in knowledge of the law while simultaneously “deemphasizing the need for memorization of doctrinal law” is a fascinating philosophical question that the California Supreme Court did not attempt to answer in its eight-page order. However, the National Conference of Bar Examiners has been working on just such a test since 2021 – the Next Gen bar exam.
The Next Gen bar exam is not just a fancy sounding title. The test claims to emphasize “legal skills,” rely less on memorization of laws, and will be at 9 hours shorter than the current 12-hour exam. The test debuts in 2026, with Arizona due to administer the new exam starting in 2027.
For now, applicants to the California bar will continue to endure two days of torture aimed largely at eliminating competition for existing lawyers, all in the name of protection of the California public, while that same legal profession continues to bemoan the public’s difficulty in obtaining legal services.
About Joseph A. Brophy
Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jkwlawyers.com.
The original article appeared in the June 2024 issue of Maricopa Lawyer and can be viewed here:
https://jkwlawyers.com/wp-content/uploads/2025/1/MARICOPA-LAWYER-JAN.pdf
