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California's Pilot Portfolio Bar Examination - Race to Bottom?

California’s Pilot Portfolio Bar Examination – Race to Bottom?

At the outset, as a professional, I know that the State Bar Exam is being mischaracterized as a rote memorization test. It is not; it is a problem-solving, speed exam requiring powerful memory. It is designed to make sure a candidate can competently represent clients. Most people know that clients can get stuck with a terrible lawyer. Now imagine carving out exceptions to make it even easier for less qualified people to practice law so “everyone gets a trophy.” It’s no longer out for public comment; it’s on the desk of the California Supreme Court for approval.

What could go wrong? California’s State Bar Board of Trustees has recently presented an alternative plan for licensure, proposing the implementation of a pilot Portfolio Exam (PBE). Many lawyers say the State Bar is hiring experts to support a fallacy that the Bar Exam is all about rote memorization. This is misinformation. It’s also about application.

A vital point of this article is to identify areas in the State Bar recommendation that it does not take into account:

  • No Alternatives: The PBE does not address the underlying proposal, such as reducing passing scores or identifying a program that surgically addresses the needs of a smaller population of students who might benefit from another licensing pathway. Would this not be better than abolishing a proven, merit-based program?
  • Unreliable: The reliability of the PBE proposal is suspect as it is based on a tiny student and student population of tiny states versus California, with a population of over 45 million people. Much more significant than the two small states that pale to CA.
  • Apples to Oranges: We also have 62 law schools or varying accreditations versus the handful of law schools in the smaller population states. Why are we comparing apples to oranges?
  • Ambiguous: The PBE program does not mention the testing process for past graduates of these two classes of law schools, approved by the State Bar. And these candidates probably number in the thousands. These people have not taken the bar or not passed and want to become licensed attorneys. What is their pathway to licensure?

What will PBE mean to the hundreds of thousands who have taken the Bar Exam? Why change the Bar Exam from a test identifying merit as the main ingredient to becoming an attorney? I will expose some State Bar hilites, and then I will expose a few things that were not discussed by the Bar. Now, let’s get into an understanding.

DEI supporters claim equity can be achieved by placing less emphasis on “rote memorization” and “overcoming economic barriers” presented by the “traditional bar exam.” Diligence, study habits, and learning methodology appear to be low on the list of priorities, with forced equity high on the support list. However, my issue is that if DEI is a goal, it should be a mere exam component for specifically identifiable students. Why are we dumbing down the entire Exam to the lowest common denominator?

Understanding ‘Merit’ versus ‘Lesser Merit’ Based Law Licensing

Typically, ‘merit’ refers to an aspirant’s inherent ability, skills, or achievements that qualify them for specific roles or positions, particularly about obtaining a license to practice law. A ‘merit-based system operates on the premise that permits should be granted to the most deserving or well-qualified individuals based on their performance in academic, professional, and practical evaluations. 

In simple terms, while a ‘merit-based’ system seeks the top performers, a lesser merit system aims to widen the field. Both systems have their merits and drawbacks depending on the context, and understanding them can aid in comprehending the landscape and direction of law licensing. Here, ABA schools and CA-accredited law schools are cash-strapped. And now, all of a sudden, the curriculum becomes increasingly diluted. These same people will likely get into government, which could be dangerous.

DEI and Lowering Standards

States like Wisconsin and New Hampshire have already implemented alternatives to the traditional bar exam, with varying degrees of success. In Wisconsin, for example, 51% of attorneys were admitted via diploma privilege, as opposed to 19% the traditional Bar Exam.

It’s worth noting that the state reported no significant difference in the types of disciplinary matters for those admitted via diploma privilege and the traditional bar exam. However, these alternative pathways’ long-term effects and impacts are still under review.

It appears that, besides California, Washington will end its bar exam, following similar arguments. The DEI side claims the traditional method can’t correctly measure an attorney’s ability to practice law effectively and ethically. This new approach could redefine how we determine a new attorney’s competency. Moving away from rote memorization, the PBE focuses on real-world legal skills that new attorneys need. Law graduates will work under the tutelage of licensed attorneys for four to six months, getting graded on their performance, thus ensuring a practical, hands-on approach to legal competency assessment. 

However, the proposal isn’t without its caveats. While the PBE presents an alternative pathway to licensure, it hinges heavily on the availability of lawyer supervisors. Thus, ensuring each candidate gets a fair chance might pose a challenge. Also, there is an implied risk that such a model could compromise the standards of legal practice by not assessing all the knowledge areas a traditional bar exam would cover. 

Supervised Practice is the Old Way

I can’t argue against supervised practice, which is how I became eligible for the Bar Exam. The Oregon Supreme Court approved supervised practice-based attorney licensure methods. The trend of supervision with no bar exam will grow. Concerns remain that policies like these, ostensibly designed to create equal access and opportunity, may instead run the risk of treating potential attorneys as victims needing expert help rather than individuals needing better skills and comprehension. I think it is a grave error to end the bar exam. As it is, there are still crummy lawyers. Lowering standards will NOT improve things.

The question arises: How do we balance creating equal opportunities and maintaining necessary standards? 

  1. Explore alternative pathways: Investigate the possibilities for establishing alternative routes to licensure that still uphold professional standards and requirements.
  2. Address economic disparities: Consider ways to make traditional and non-traditional Bar Exam routes more economically accessible to all eligible applicants, lessening the financial burden of exam preparation.
  3. Promote skill development: Rather than reinforce the victim mentality, initiatives should focus on helping law students and graduate lawyers improve their study and comprehension skills, equipping them for success, regardless of their path to licensure.
  4. Maintain professional integrity: Any significant change to existing systems must uphold the profession’s integrity, ensuring public safety and preventing fraud and malpractice.

The PBE pilot is expected to be launched and concluded by December 31, 2025. It will comprise 113 provisionally licensed lawyers (PLLs) still in the original Provisional Licensure Program (PLP) and are anticipated to be in the program as of the proposed pilot launch.

ALTERNATIVE PATHWAY WORKING GROUP’S OVERALL PORTFOLIO BAR EXAM DESIGN

Key components of the program, as recommended by the working group, include the following:

Eligibility is limited to confident accredited and ABA law school graduates.

After the pilot, JD graduates of ABA-accredited and California-accredited law schools would be eligible to participate in the PBE. Graduates of unaccredited schools would not qualify for this program.

  • Curriculum: After the pilot, candidates must have completed law school courses in the nine doctrinal subjects identified by the BRC as the subject matters necessary for establishing minimum competence.
  • Provisional Licenses: Candidates will be provisionally licensed while participating in the PBE.
  • Practice Scope During Supervised Practice Period: Candidates with provisional licenses would have authority, responsibilities, and duties similar to provisional licensees in the Provisional Licensure Program.
  • Supervisor Qualifications: Supervisors must hold active California licenses and not be immediate family members of candidates. All other supervisor qualifications adopted for the PLP would apply.
  • Required Supervised Practice Hours: Candidates must complete 700–1,000 legal work, capped at no more than 40 hours per week.
  • Portfolio Contents: Candidates must submit work products meeting specific requirements to make up their portfolio. The working group recommends that the number of work products required be between eight and thirteen, including two to three essays covering professional responsibility, professionalism, or civil issues that arose during the practice period. The written work products would reflect the analysis of various substantive legal matters, including materials related to negotiations and client encounters. The work products are intended to allow assessment of all seven of the skills and abilities identified as necessary to establish minimum competence and demonstrate that the candidates have worked with concepts from at least seven of the nine doctrinal knowledge areas identified as essential for minimum competence.
  • Grading: Each portfolio component will be graded anonymously by independent examiners based on grading rubrics established to ensure consistent grading across all examiners. The working group recommends two graders be assigned to each component.

The Supreme Court will authorize the State Bar to establish a proposed cut score for the PBE and to submit that proposed cut score to the Court for approval. This will determine the minimum score a candidate must achieve to pass the PBE.

State Bar Will Fix Problems as They Arise

The State Bar staff, subject to the input of a steering committee, will resolve any outstanding PBE pilot design or implementation issues not addressed by the Court in its action on this request. The steering committee will be composed of representatives of the Committee of Bar Examiners, subject matter experts, and others as appropriate.

Courts Upholding Mediocrity?

Alarmingly, with the Supreme Court upholding this, many in the public appear to be losing faith in the system, saying nothing makes sense. Finally, the PBE pilot is designed to alleviate the significant burdens imposed on candidates by the delivery of the traditional two-day bar exam, especially those with disabilities and those who lack economic resources. It aims to provide a more equitable and accessible pathway to legal licensure.

States Leading DEI Style Law Licensing?

Following in the footsteps of Wisconsin and New Hampshire, California is contemplating a new, alternative path toward law licensure. A move sparking discussions across the country, the proposed pilot Portfolio Bar Examination (PBE) is not only shaking up the traditional bar examination model but reducing the financial and time burden on law graduates. 

Simultaneously, on a related note, Washington state is considering eliminating its bar exam. This trend of simplifying pathways to law licensure is rapidly gaining traction in the US, suggesting a paradigm shift in traditional legal competency assessment. 

Another aspect worth considering is the impact on those participating in the Provisional Licensure Program (PLL) initiated during the pandemic. Under this, law graduates were bestowed limited permits to practice law under supervision. Including such graduates in the PBE could be an avenue for reconciling the disruption caused by the pandemic. 

The Connection to California’s Portfolio-Based Exam (PBE) 

You might be wondering what this has to do with California’s pilot Portfolio Based Exam (PBE). The PBE is a fresh approach to law licensing recently adopted by the State Bar of California. It aims to bring a more comprehensive, holistic method of assessing the adequacy and suitability of aspiring attorneys. 

The PBE, in a sense, blends the ‘merit’ and ‘lesser merit’ concepts as it places equal emphasis on demonstrable skills, practical legal experience, and the commitment to ethical conduct, making it a more accessible pathway to law practice. 

  • Merit-oriented assessment: The PBE evaluates a candidate’s proficiency and knowledge in various legal disciplines and their capability to apply these skills in real-world situations, similar to a merit-based system.
  • Lesser merit-oriented inclusivity: In line with a lesser merit system, the PBE also factors in a candidate’s commitment to ethical conduct, the breadth of their legal experience, and their potential to contribute to representational diversity in law.

Why We Must Delay the PBE – [Pending more Thorough Research]

Adopting the Portfolio Exam in California represents an attempt to balance ‘merit’ and ‘lesser merit’ approaches in law licensing, aiming for inclusive excellence in the legal profession. By understanding these dynamics, we can better appreciate the innovations and ongoing reforms in law.

You might wonder why the rush to implement the Portfolio Exam (PBE) should be stemmed. The truth is, we respect innovation when it serves the interests of justice and progress, due regard must be given to in-depth study with unwavering attention to the potential impacts. The desire to innovate, while admirable, should not be allowed to bypass the need for comprehensive checks and balances. 

Reflect on this: if a structure is suspect, would we allow it to be inhabited before experts have conducted a thorough safety examination? Probably not. Analogously, a new licensing process, such as the PBE, must not replace the existing California General Bar Examination before a detailed content validation study has occurred. As put forth by Chad W. Buckendahl in his report on Conducting a Content Validation Study for the California Bar Exam, this assessment will ensure that the new path adheres to the principles of fairness and justice. 

Approving guiding principles to minimize bias in Bar Exam questions is undeniably a step in the right direction. However, the feasibility of grading the portfolios under the new PBE and their intrinsic lack of uniformity remain vital factors that necessitate further exploration. After all, the law is about ensuring justice is served uniformly and without bias. 

We must also question the likelihood of objectivity within the PBE portfolio submissions. Could these documents potentially include inputs from colleagues or other external sources? If so, how can we guarantee that such influence does not negatively affect the merit assessment? 

DEI Friendly, Cash Strapped Law Schools?

Supporters of the PBE, like The University of West Los Angeles, argue its potential as an alternative path to licensure. UWLA has long associated itself with low GPAs and minority candidates. Lowering standards will bring a potential windfall to this law school. However, many experts agree that we must ensure this doesn’t create unequal representation in official records between traditional bar exam passers and PBE passers. In essence, every legal practitioner, irrespective of their path to licensure, should be presented equally in public records without differentiation. 

Admittedly, the proposed PBE presents a promising advance toward legal licensure. But at what cost? One cannot underestimate the importance of extensive research before ushering in such a dramatic shift in the law licensing process. The tenets of justice and fairness, cornerstones of our legal system, should never be compromised in the rush of innovation.

Why We Already Know We Must Defeat the PBE Proposal?

Delaying or defeating the proposal are more challenging goals – and, in my view – are optimally achieved through a strategy that brings public awareness to the negatives and persistent opposition. Many groups don’t want the PBE, far more than the DEI/Critical Race Theory supporting ones.

Other Concerns

Another significant criticism is directly linked to the broader fight for equality in licensing. Critics argue that the PBE, like the traditional California Bar Exam, may favor advantaged individuals. Much of this argument is based on the premise that these individuals may have the means to assemble a better portfolio through more extensive resources or connections. 

Finally, there’s an ongoing debate on whether the state bar should differentiate between traditional bar exam passers and PBE passers in public records. Those in opposition believe that creating a distinction could unjustly devalue the latter group, affecting their career opportunities ahead. 

In conclusion, while the PBE offers an alternative pathway to licensure, its implementation requires a meticulous balance. This ensures that it not only upholds the standard of competence expected in the legal field but also alleviates rather than exacerbates the existing inequality hurdles. The PBE, therefore, must continually be scrutinized for its potential weaknesses to become a viable and fair alternative.

Note that the motion to pass the proposal came in 6-2 votes. With trustee abstention, you see the biases when you examine who voted for it, given their affiliations. State Bar members change an entire licensing process – why don’t most CA lawyers want it?

Only Seven CA Bar Associations SUPPORT PBE, and Over Sixty One DO NOT SUPPORT PBE

Note that only 7 CA BAR ASSOCIATIONS are in favor of the PBE (DEI pushers)

  1. Alameda County Bar Association
  2. Asian American Bar Association of the Greater Bay Are
  3. Bar Association of San Francisco (BASF)
  4. East Bay La Raza Lawyers Association
  5. La Raza Lawyers of California
  6. Women Lawyers of Alameda
  7. Women Lawyers of Los Angeles.

At Least 61 CA BAR ASSOCIATIONS Oppose PBE

Bar Associations

  1. American Board of Trial Advocates – California Chapter
  2. Arab American Lawyers Association of Southern California
  3. Asian Pacific American Bar Association of Los Angeles
  4. Association of Defense Counsel – Northern California
  5. Association of Southern California Defense Counsel
  6. Black Women Lawyers Association of Los Angeles
  7. California Association of Black Lawyers
  8. California Defense Counsel
  9. California Employment Lawyers Association
  10. California Lawyers Association
  11. California Women Lawyers
  12. Century City Bar Association
  13. Consumer Attorneys Association of Los Angeles
  14. Consumer Attorneys of San Diego
  15. Filipino-American Lawyers of Orange County
  16. Fresno County Bar Association Board of Directors
  17. Fresno County Women Lawyers
  18. Glendale Bar Association
  19. Iranian American Lawyers Association
  20. Irish American Bar Association
  21. Italian American Lawyers Association
  22. Japanese American Bar Association
  23. John M. Langston Bar Association
  24. Korean American Bar Association of San Diego
  25. Korean American Bar Association of Southern California
  26. Lake County Bar Association
  27. Long Beach Bar Association
  28. Los Angeles County Bar Association
  29. Marin County Bar Association
  30. Mexican American Bar Association
  31. Monterey County Bar Association
  32. Muslim Bar Association of Southern California
  33. Newport Harbor Bar Association
  34. North County Bar Association
  35. Orange County Bar Association
  36. Orange County Korean American Bar Association
  37. Orange County Lavender (LGBTQ+) Bar Association
  38. Orange County Women Lawyers Association
  39. Pasadena Bar Association
  40. Riverside County Bar Association
  41. SacLegal (Sacramento’s LGBTQ+ Bar Association)
  42. Sacramento County Bar Association
  43. San Bernardino County Bar Association
  44. San Diego Family Law Bar Association
  45. San Fernando Valley Bar Association
  46. Santa Barbara County Bar Association
  47. Santa Clara County Black Lawyers Association
  48. Santa Cruz County Bar Association
  49. Santa Monica Bar Association
  50. Silicon Valley Bar Association
  51. South Bay Bar Association
  52. Southern California Chinese Lawyers Association
  53. Southwest Riverside County Bar Association
  54. Thai American Bar Association
  55. Tulare County Bar Association
  56. Ventura County Asian American Bar Association
  57. Vietnamese American Bar Association of Southern California
  58. Western San Bernardino County Bar Association
  59. Westside Bar Association
  60. Women Lawyers of Sacramento
  61. Yuba-Sutter Bar Association.

Why is it Crucial to Challenge Portfolio-Based Examination (PBE)?

First, we have the much-debated issue of merit and lesser merit when licensing law professionals. California’s current General Bar Examination protocol has already recently lowered its standards. Yet it is still accused of favoring privileged individuals, raising questions about its meritocracy. On the other hand, the PBE aims to act as an alternative pathway to licensure.

All About that DEI Grant/Loan Money?

Its adoption is championed by institutions like the University of West Los Angeles (UWLA) for its potential to diversify the field by removing barriers to admission. However, this well-intentioned proposal isn’t without concerns. Many UWLA grads, myself included, understand that UWLA champions itself as “pro-black.” What we don’t understand is why lowering standards and treating other races who have lower pass rates as a “sacred cow.”

From Chaos Comes Chaos

One of the most significant concerns is the lack of uniformity in the content of the portfolios under the PBE. The accumulation of input from colleagues and other sources may foster inconsistency in standards. This could arguably dilute the merit-based system for law licensing, introducing a ‘lesser merit scenario due to the distorted comparison criteria. 

The proposed grading of the PBE portfolios also raises concerns. Compared to the standard Bar Exam, the evaluation scheme of the PBE could be potentially biased. A recent presentation on the Approval of Guiding Principles in Examination Development highlighted the need to minimize any potential bias in bar exam questions. This challenge seems to be amplified in the case of portfolio grading. 

It remains vital that implementing another law licensing process – while previous bar exam reformation efforts are still ongoing – may destabilize the industry. Many believe these efforts should be studied before launching a new method that could potentially eliminate the California Bar Exam requirement. 

Indeed, the PBE proposal is quite divisive. While it’s embraced as an alternative method to diversify the law licensing process, its potential for inconsistency and bias raises significant concerns. Moreover, introducing PBE during bar exam reformation might cause more harm than good. Moving forward, an inclusive discussion involving all stakeholders, including potential law professionals, educators, and the public, should precede any implementation decision.

It would be advantageous to contact representatives from some of the critical constituencies – and either get a written statement or have a succession of interviews.

EVIDENCE: The lack of it – which can be identified and addressed – does not justify abandoning a licensing system that has worked for years – responsible for hundreds of thousands of licensed CA attorneys. If you look at supporters’ claims, it’s primarily based on a limited pool of just 100+ trial cases – in addition to states who’ve adopted something like it.

Unresolved Unfairness in this DEI Initiative

The California Bar’s report to the CA SUPREME COURT was 148 pages – including attachments, here. Given the host of ambiguities RAISED BUT NOT RESOLVED, it should have been double that – given questions not addressed – and with complete transparency involved.

When you consider the worthiness of the PBE – without really identifying those who are eligible (beyond reference ABA or CA Accredited candidates) – you have to wonder why they would leave the likely thousands of candidates in licensing limbo who may be a repeater, not currently in an ABA/CA accredited law school, etc. Not to mention candidates from other states or countries.

AMBIGUITY-ON-STEROIDS

If the traditional bar exam disappears, so does an industry dedicated to serving examinees, such as Barbri, PMBR, Cal Bar Tutorial Review, etc. Once the horse is out of the barn – do these companies come back – when the EXPERIMENT fails? Do they stick around to serve those not eligible for the PBE?

Does the State Bar Maintain a Traditional Exam for those not eligible for DEI?

Interestingly, the LOS ANGELES CITY ATTORNEY is against it, leading to this observation: They assert that the State Bar is creating TWO CLASSES of license. In the real world, a private – or PUBLIC – firm would prefer to hire an applicant who has passed a traditional exam. I only noted a handful of law schools that agreed with the proposed levels of tenure in law idea.

Are they marginalizing the value of their degrees? What about the workplace market? Many law firms will not go with a PBE licensure hire. Why deal with the stress of a DEI hire, to begin with? Why would they, when the more competitive potential hire has passed a traditional exam and showed basic knowledge? 

Fallacie of Rote?

At this core to the State Bar’s assertion, traditional bar exams rely on ‘rote memorization.’ But this is disingenuous at best.

The other half of the learning equation is missing from this simplification:

  • Traditional bar exams DEMAND application: This goes to the heart of learning – and I’ve always been taught that the PROCESS to climb the mountain is as important as standing on top—and less applicable to pursuing any significant goal.
  • The subjects deleted by the PBE – about half of the current traditional subject matter – are replaced by courses that promote subjective evaluation. Again, standards are minimized.
  • Alternatives to the PBE alternative are not addressed; possibilities that assist with “DEI Objectives” for the class could be reasonably identified based on financial or other related learning opportunity factors. Scores could be cut. Or could the PBE be offered to them?

I have never met a bar review tutor who could not train an applicant to pass the traditional Exam – though the path can be more difficult for some. Trust me, rote memorization is merely part of the torturous process. No doubt, the State Bar is well-intentioned. For one, I can see the Law Office Study Program fade away, which is terrible. Ambiguity, clarity, and certain things still need to be addressed. Why would the Supreme Court allow a portfolio bar exam? Won’t less legal knowledge encourage incompetency?

Pundits contend it could deliver a more effective way of ensuring public safety and preventing fraud and malpractice. However, this proposal has raised concerns about diluting the requirements and standards for admission to practice law, feeding into the widely discussed race to the bottom phenomenon. 

In conclusion, to many traditionalists, this incrementalism represents a slap in the face to law school graduates. While the PBE proposes a fresh, pragmatic approach to legal licensure, it’s imperative to weigh its pros and cons thoroughly. Given the hundreds of years the test has been around and the thousands of licensed lawyers, this proposal has not been tough enough. It fails to address students from other states and students who have not passed and fails to identify reciprocity or unaccredited law schools. The proposal only suggests that it is prospective, moving forward. The drive to make law licensure accessible and convenient should not undermine the need for rigorous standards to improve public safety and prevent malpractice.

As these debates continue, it’s crucial to remember that the goal is to promote fairness, inclusivity, and high professional standards in the legal field. As always, we must ensure that any changes contribute to improved public safety and deter fraudulent practices. Reducing an institution to something less than it is is not the way. Testing and standards are keys to a safe and fruitful society. Stay tuned for further developments in this evolving analysis.

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