Well, we’re really doing this. States are beginning bar in-person bar examinations this week despite persistent warnings from public health officials and we hope everyone comes out of this experience safely. Joe and Kathryn offer a final roundup of what’s going on with the bar examinations this week, from social distancing seating plans to the bogus claim that the bar tests “minimum competency.” And, Joe unveils what the ideal attorney licensure regime would look like.
Thinking like a Lawyer
Its Bar Exam Time
Intro: Welcome to Thinking Like a Lawyer. With your host Elie Mystal and Joe Patrice talking about legal news and pop culture all while thinking like a lawyer here on Legal Talk Network.
Joe Patrice: Hello welcome to another edition of Thinking Like a Lawyer. I’m Joe
Patrice from Above the Law. We are having our weekly roundup of news stories from the world – the wild and wacky world of law.
Kathryn Rubino: I mean, it’s been a pretty crazy week.
Joe Patrice: Why are you talking? I have not introduced you yet.
Kathryn Rubino: You have not introduced me yet. But I mean —
Joe Patrice: No, I mean, that’s cool. I think most people at this point know that you’re
Kathryn Rubino: It was a big surprise right there. A big reveal, a big reveal.
Joe Patrice: A big reveal. I’m joined by Kathryn Rubino. Also a senior editor at Above the Law. How are you?
Kathryn Rubino: I’m okay. We’re recording this on a Friday. We usually
record it earlier in the week. Friday afternoon to be specific and I am ready to be done with
Joe Patrice: I have already actually done my recording of the legal technology week news happy hour that we do.
Kathryn Rubino: Oh, so that’s why you’re slightly tipsy here.
Joe Patrice: Oh, slightly. No, I’m as drunk as I always am. Uh, no, but no. I’ve already recorded one show talking about a plethora of legal technology issues if those are more interesting to you. You should absolutely watch that show, but otherwise –
Kathryn Rubino: Here we are.
Joe Patrice: So, what are we talking about here that is not necessarily legal tech related?
Kathryn Rubino: Well, it is late July. Normally, what that means –
Joe Patrice: Hold on. Let me check my calendar. What does that mean?
Kathryn Rubino: Normally, it means we’re getting ready for the bar exam.
Joe Patrice: Oh, but there’s not any bar exams happening in person around the country
because there’s a pandemic. So, nobody would actually make people go into an enclosed space.
Kathryn Rubino: See, that’s where you’re wrong. Unfortunately, I think 20 plus jurisdictions are still going forward with an in-person bar exam next week. I think you wrote
about this. There’s actually a picture going around that shows the set up for one of the locations.
Joe Patrice: North Carolina’s setup images are online. You are correct that we have those. It looks, you know, like the bare minimum. I mean, we had a conversation. I wrote an article. I will admit where there was some pushback because I used from a federal government website the amount of square footage required to keep properly distanced for that amount of time and I used that and some more math savvy readers said, wait a minute, that can’t possibly be right. And then when they pushed me on it, I did the math myself and went, yeah, that can’t be right. So, yes. The federal government, it was FEMA
Actually. The FEMA website explains what social distancing is incorrectly They overestimated. You don’t need as much room. We’re getting back to what we were saying.
They said in order to have people in an enclosed space, you would need to have a circle around each person that was a six-foot radius.
Kathryn Rubino: So, person in the middle, three feet on either side.
Joe Patrice: No. That’s the thing. They said a six-foot radius, not diameter.
Kathryn Rubino: Oh, sure, sure.
Joe Patrice: There in lay the problem. So, what you really need is a three-foot radius because the person in the center of all these –
Kathryn Rubino: Sure.
Joe Patrice: — three feet in either direction is –
Kathryn Rubino: But it’s a six-foot circle around each person.
Joe Patrice: Right. A six-foot diameter circle around each person, yes. So, as it turns out, you need less area because —
Kathryn Rubino: Sure.
Joe Patrice: This has become above the math lesson because the square, the area you need in that circle will always be the radius squared –
Kathryn Rubino: Sure, sure.
Joe Patrice: In a lot of ways, that’s not even a very good way of doing it because there’s no good way to sit circle by circle. So, it really is going to be squares. Whether you want it to be or not, they’re going to be squares. So, do it that way whatever, but we’ve talked about this even with that addendum. We talked about it and it’s hard to visualize what that means, you know.
Kathryn Rubino: Sure, sure.
Joe Patrice: But this North Carolina picture shows what three feet on either side of the
Desks looks like and let me tell you, it does not look like you have very much room from the person next to you.
Kathryn Rubino: I mean, it looks — I mean, I’ve seen the pictures. It looked kind of to me like exactly what you would expect a testing room to look like because that seems like the
how far to make sure people aren’t cheating distance, not it doesn’t look much expanded because of you know the raging pandemic going on.
Joe Patrice: Well, the really the really terrifying thing about it was when you looked
at the broader angle that the person on Twitter gave us afterwards which is there’s tons
of empty space around the area where they have the desks set up.
Kathryn Rubino: They could be further apart. They are choosing not to.
Joe Patrice: They went in and said, well, six feet is the floor, not the ceiling, and they just created a grid of exactly the minimum for everybody when they could have had a lot more.
Kathryn Rubino: It’s terrifying.
Joe Patrice: Yeah, it does not look good. But yes, so there are in-person exams still going on but don’t worry about North Carolina, because of all the health concerns even though they put that together, but because of the health concerns, we were happy to report they listened to public health officials and lowered the cut score by two points. That was their big announcement today, that they are lowering –
Kathryn Rubino: Sure, lowering the cut score would be a story in perfectly healthy normal non-2020 times, but I’m failing to see the relationship between the two.
Joe Patrice: Well, and this is the issue; and this goes to a lot of the people who argue for the bar exam. We’ve talked a little bit about diploma privilege obviously. Last week, had the
diploma privilege folks on. One of the tired and untrue argument — I’m trying to come up
with an opposite of tried and true. The tired and untrue arguments that people make when defending the need for a bar exam to protect the public from all these scary lawyers.
Kathryn Rubino: There’s huckster lawyers out there.
Joe Patrice: Yeah. One of the arguments they always go to is 20 to 25% of people who take the bar exam fail it, which is generally true.
Kathryn Rubino: Yeah.
Joe Patrice: The problem is, what if I told you, very 30 for 30 voice. What if I told you
that number is set by the people running the exam. They make the decision that we want 20 to 25 people to fail and they curve it so that 20 to 25% of the people fail. There’s not like a cut score where they go in assuming what if everybody’s perfect this year?
Kathryn Rubino: Right, right. They’re not assuming it’s all like a gifted and talented classroom, right? They’re going in assuming like a traditional curve, which is frankly how a lot of –
Joe Patrice: Well, as well operate, yeah.
Kathryn Rubino: So, I mean, it seems –
Joe Patrice: But this brings us to the problem. The argument for the exam is that it’s a test of minimum competence and on a test of minimum competence there should be a platonic ideal of once you hit this marker, you are in. Instead, different states set it based on the different conditions that they have in order to keep a failure rate of between 20 and 25% because that’s what they view as good for them.
Kathryn Rubino: Appropriate.
Joe Patrice: Different states do it differently. California historically they now are making changes and permanent changes, has had it way too high in most people’s estimates.
Kathryn Rubino: Making it more difficult that it should be.
Joe Patrice: Very difficult for people to get in there.
Kathryn Rubino: Not the most.
Joe Patrice: No, Delaware I believe is, but that’s because Delaware just sits on this
probably criminal empire of all of these corporations.
Kathryn Rubino: We need to just impute the whole state.
Joe Patrice: I mean, look. Being a corporate lawyer in Delaware is the greatest deal ever, right? Everybody else does all the work. You’re a local council for them. It’s a huge racket. Anyway, put that aside, but most states do it in this range and they do in this range in order to maintain credibility and look like they’re a tough exam. That however, is not how a minimum competence exam works. Imagine if the driver’s license exam every year was well, you did everything right based on last year but we had a lot of good people this year, so we’ve decided you by having your blinker on too late, you don’t get your driver’s license. That doesn’t make sense and that shouldn’t be how we do legal licensing either. Anyway, put that aside. So, the North Carolina argument of lowering the score is A, they unlike California did it temporarily and B, they made it sound like this was an accommodation, but it is not.
Kathryn Rubino: No.
Joe Patrice: It is not an accommodation. What they’re doing is saying that we understand that under the conditions that we have put this year’s class through, we expect the scores to be lower, so therefore, to hit our 20 to 25, we need to lower the cut score by two. They go so far as to clarify that this cut score will go back up in July of 2021, but the two exams that are back-to-back here, the July exam that they’re holding in person for some reason and then the upcoming February exam, they will use this lower score.
Kathryn Rubino: I mean, it’s just shockingly terrible.
And you know, kind of an unspoken because I haven’t written this article yet, but it’s on my to-do list is the way in which also firms are feeding into the problems with the bar exam. As I’m sure folks are aware, a lot of big law firms would normally expect the class of 2020 to start in the fall, right? You know, they take usually in in normal times, right? You know, you take the bar exam in July. You start at your law firm and you know, September, October somewhere in the fall and life goes on. But because of all the pandemic for one, but also, there’s a lot of bar exam issues as a result, different firms are doing different things. Some are still having their folks having the option of starting in the fall, some are pushing it back to January or February, and some of them who have pushed the date back to January and February are saying that it’s contingent upon folks being able to take the bar exam. Some of them are offering, paying students expenses to take the test in another jurisdiction if not
available in their jurisdiction. So, firms are actually paying for folks to travel during a pandemic in order to have taken an exam before they start working.
Joe Patrice: Which is ridiculous and it’s extra ridiculous when you recall there was a great quote that our colleague put up today and by today, we mean Friday. Our colleague put up an article that you can go back and look at. This quote from an underwriter because the legal industry like a lot of things in the world, it’s really dictated, the structures of the job
are dictated by the pencil pushers with the money.
Kathryn Rubino: Sure.
Joe Patrice: And the folks who underwrite malpractice insurance, those are the people who are really protecting the public. It is not the board of law examiners, it is the underwriters of malpractice insurance, because they are the people who will pay if somebody who was unqualified to practice law does something bad and it is those folks
who have made very clear we don’t care. They made a statement, we really can’t see ourselves caring if somebody got their license through diploma privilege versus anything else. They as one would expect are much more concerned about very vague and hard to predict issues like which of these attorneys is going to skim money off the top or over bill, ethical considerations. This is what bothers them. It is not in any way.
Kathryn Rubino: So, perhaps the thing that you’ve been saying is putting more focus
on things like character and fitness and continuing CLE things as opposed to just an arbitrary test? Sure.
Joe Patrice: Well, you know, you make the point about continuing CLE things and I think that speaks to an issue that is real and I say this not just because we have advertisers who are in this industry, but one concern with the idea of moving past the bar exam is what happens to the broad industry of bar prep.
Kathryn Rubino: Yeah.
Joe Patrice: I mean, what happens to that industry which generates a lot of revenue every year? I have a solution.
Kathryn Rubino: Do you now? Please tell us.
Joe Patrice: I just think the answer is that if we move to a system where we are more diploma privileged, one of the things that I’ve talked about a lot is we would move into a world where we have stricter regulation of law schools to make sure that they’re up to snuff and that the real liberties these folks get to take now with pushing back against the ABA and suing the ABA for threatening their accreditation, would fall apart because state regulators would now be more involved in making sure that law schools are up snuff. But the back end is true too. The bar prep folks, you know what they’re uniquely situated to do, is be involved in a new regime of continuing legal education. Right now, continuing legal education, I don’t think this is a controversial statement. After the first year of being a lawyer is mostly zone out time.
Kathryn Rubino: Sure.
Joe Patrice: It is meeting you go to at the city bar when you’re killing time before you want to go get a drink or it’s on video where it’s playing in the background while you’re also playing minesweeper –
Kathryn Rubino: Or if things are a little slow, you can quickly rack up your CLE credits while you’re waiting for a partner to get you back a draft of something. Sure.
Joe Patrice: This is not how continuing legal education should work. And it’s also telling and this is a line that I’ve written. It is telling that the bar exam is viewed by its proponents
as nothing more than a hazing ritual when they can’t envision a world of protecting the public without a two-day grueling exam, but they also are just as quick to defend the idea that CLE, I mean, we all take it. Ah, it’s no big deal.
Kathryn Rubino: Yeah.
Joe Patrice: But a more strict system that allows the people who have been in practice more than a year to actually justify themselves. If that were something they were arguing,
then I might believe their crocodile tears over the public protection. But if they aren’t, then it’s clear that this is just a lie.
Kathryn Rubino: Sure. And there’s obviously a lot to unpack there, but certainly, I think that bar review folks would be well situated to do with a lot of the stuff since they frankly are the ones who are teaching plenty of students, putting the law school graduates the actual substantive law because you don’t have to take a lot of the classes that you get. You
know like legal papers or whatnot. I never took a class in that.
Joe Patrice: Commercial paper.
Kathryn Rubino: Commercial paper, yeah. It’s been a long time.
Joe Patrice: Yeah, yeah, yeah.
Kathryn Rubino: It’s been a long time.
Joe Patrice: See this is how –
Kathryn Rubino: It’s been a long time.
Joe Patrice: You were.
Kathryn Rubino: Yeah. But I mean, I never took a class for that.
Joe Patrice: Oh, no. It was just a bar example.
Kathryn Rubino: Or you know, trust in the states or there’s a whole bunch of things that are actually —
Joe Patrice: Well, property gets into trust in the states, but I hear you.
Kathryn Rubino: Not like the state-based rules and that kind of stuff but in like how you
have to leave something to your wife unless you’ve explicit like that kind of actual — those are the questions that are on the bar exam, right?
Joe Patrice: Well, but that gets you to in a world where we’re already I think rightly moving towards a uniform system to allow portability, those sorts of state-specific rules are already disappearing from the bar exam proper.
Kathryn Rubino: Well, a lot of states still have the UB section but also state-specific questions as well.
Joe Patrice: Yeah, certainly not getting into random practice areas all over the place that you’re not necessarily going to get to. I mean, it no longer takes up enough time to frankly do that. But, yes. And my proposed solution again, back to I have a solution. I think that the bar prep folks are uniquely positioned to deal with this and I think the way in which it’s dealt with.
Kathryn Rubino: You’re saying in a way that current CLE providers are not. They’re already an industry, right?
Joe Patrice: That is fair. I am not necessarily saying in a way that they are not. I’m saying in a way that is — this is going to be a herculean task to do what I’m saying and more players in this industry are going to be necessary. What I think is necessary is a situation where we have continuing legal education, it may not even be mandatory to do it this way, but instead maybe incentivize to do it this way. You can get your license and you can practice if you want, but if you want to be able to advertise that you are a gold star rated
or AAA rated or however you want to do it person, you need to have not just taken the course, but then take an XYZ little quiz, test whatever in that niche practice area. Because one of the most ridiculous parts of the bar exam is you’re not a trust and estates lawyer, I wasn’t a trust and an estates lawyer. We had to learn a bunch about trust and estates to take this antiquated exam that envisions –
Kathryn Rubino: Promptly forgot.
Joe Patrice: That envisions a world in which people are generalists when they are not. What I think would be a better situation is diploma privilege followed by over time because most lawyers not all, but most lawyers go to work for another senior lawyer out of law school. Very few hang up a shingle. So, given that, they are going to learn much more about the profession from their basically apprenticeship than they’re going to learn from a bar exam whatever. Let them do that and when it comes time for them to be the sort of person who generates businesses and has to advertise themselves, they can then have an opportunity vis-a-vis the CLE process to say I’m in trust and estates, I don’t need to take 24 credits across all whatever. I need to take these credits that are very specific to my practice area that are run by people who are practice area experts and if I wish to be able to advertise myself as somebody who is proficient in these areas, I need to jump through some hurdles regulatory wise whether a component can be showing work that you’ve already done to a regulatory panel, but also in the CLEs, it’s quizzes and short assignments
and so on, which that would take the place of the bar exam and be something that bar prep folks could really manage, making sure that you’re getting a certificate in your practice area, not in general stuff. Even when you’re a random practitioner now, put aside the
bar exam, if you’re a random practitioner now, you go to CLE, you’re more likely to just watch whatever CLE is available rather than sit down and –
Kathryn Rubino: And ethics credit.
Joe Patrice: And ethics, yeah. Than sit down and say, I do this. I want to watch CLEs about this. You just take what’s available and that is problematic and not how a real continuing education process and a real certification of quality for the purpose of public protection which we claim this is all about would work.
Kathryn Rubino: Yes. Well, that’s the world according to (00:20:27) and I do
appreciate it, but if I were making the rules for the bar exam –
Joe Patrice: All right, go for it.
Kathryn Rubino: You would definitely be allowed to bring your own tampons into the exam.
Joe Patrice: Right. I mean, oh that –
Kathryn Rubino: That would be mine.
Joe Patrice: Oh, that’s also on mine.
Kathryn Rubino: Oh, okay, good. Well, you’re getting rid of the test. Get rid of the test.
Joe Patrice: Actually, no, That’s right. Yeah, I know.
Kathryn Rubino: But I bring it up for a specific reason, right? That is not the rule, right? And a lot of places you are not allowed to bring in your own feminine hygiene products. If you have the sort of misfortune of being a nursing mother as you’re taking the bar exam, you’re kind of shit out of luck. Some jurisdictions say, well, you know, you can do whatever you need to do when you’re sitting at your desk in a room of 300 people. Some places say, well, you get the same 15-minute break that everyone does and you’ll have to pump wherever you know we tell you no matter how far away that is. Some folks are told that they’re not allowed to bring anything to store their milk in, so they have to pump and dump. Some people are told that there’s no electric machines allowed in, so they can’t bring in their electric pump. They have to bring in a hand pump and physically you know, hand pump during the course of the exam, there’s no sort of standard across jurisdiction. Certainly, that is true and yeah, it’s not a great situation.
Joe Patrice: That’s fair. I guess my question if we’re talking about if you were allowed to run things.
Kathryn Rubino: Sure.
Joe Patrice: Kathryn Rubino: I don’t understand why you would still put women through such horrible things because I would just not have the exam. See, this is why I am the candidate.
Kathryn Rubino: You can run the legal profession Joe.
Joe Patrice: I am the candidate for –
Kathryn Rubino: I’m not going to run against you for that one, don’t worry. Don’t worry. Just to clarify that, the jurisdictions that do not let women bring their own feminine hygiene products generally provide them. But somebody said, in the middle of COVID-19 having a community-based set of tampons doesn’t strike them as the safest thing to do which is also true. But the other thing is, you know, I don’t know the variety of products that are available. This is something that may not occur to folks who don’t menstruate, but there is a wide variety of products and absorbencies and each person’s flow is different and what works for me may not work for other women. I was at an event where I was providing some feminine hygiene products for a large event and I got a big variety and a friend of mine said, oh, well, why don’t you just put out these. That’ll be enough for everyone. And I was like, those, I could never use those. A very good friend of mine but I was shocked that that’s what she thought was the right answer. I was like, that would be good for about 20 minutes. That’s how long that would last for me and so my point is just that people are very different and the notion that the bar exam is going to provide what every person who menstruates needs is absurd and folks should have the ability to bring their own products in.
Joe Patrice: There is a rating system of the various bar exams on this score, I believe. I know that Alabama got an F.
Kathryn Rubino: Well, there you go.
Joe Patrice: But, yeah. So, if that gives you a sense of the sorts of places we’re talking about –
Kathryn Rubino: That means we need it.
Joe Patrice: Yeah, oh, yeah, yeah.
Kathryn Rubino: And there’s also one I think for nursing mothers as well and it’s kind of funny to see that some jurisdictions do very well and nursing mothers were not so well with them treating.
Joe Patrice: Yeah, I think Alabama was referring to nursing getting an F. But, yeah, and it may have gotten an F on the other score too.
Kathryn Rubino: Yeah, I’ve only seen the nursing one to be honest, but it took over a lot of the law school Twitter last week and Arizona for example, they were called to the carpet for their policy and changed their policy. So, you know, it is possible that that change is possible.
Joe Patrice: This is actually a good time now that we’re coming close to the end of the show. This is a good time to reach out to and say, you know, this show should come up right in the midst of next week for us, this week for you all. Right in the midst of when bar exams are starting, bar exams are going around. Some of you may be listening to this as you’re heading home from the day one. Hopefully, some of you haven’t just decided you’re too fed up with law to listen this week until after it’s over, but this is an opportunity for us to remind all of you that if you have bar exam horror stories, bar exam news, anything to share with us from these unfortunately several states that are still going to go forward with this in July.
Kathryn Rubino: I mean, I would also go a little bit further. I mean, pretty much every year, ever every bar administration, we’re always asking for your horror stories because something always happens. In some jurisdictions hopefully, you know, exam software won’t go offline, but you know, there’s always something and we’re always, always, always Above the Law interested in those horror stories, but I think that particularly for this year in the middle of the pandemic, we want to hear what it’s like. You know, not just the what the worst case scenario is, but what was it actually like. Were people generally wearing
Masks? Were they not required? There’s no one wearing masks? What was the line for the bathroom? Did you have to stand six feet apart as you waited for the bathroom? Were you given more time because of this? I think that there are way more questions. Where every stall in the bathroom used or did you leave one available because that’s proper social distancing. There’s a lot of questions about how the mechanics of the bar exam under COVID-19 are going down and I think that we’re very interested in sharing that with as much of the legal profession as possible.
Joe Patrice: So, there you have it. If you have any of these stories to share with us, we would love to hear them. We need to hear them. That’s the only way. We’re not in those rooms as this is happening.
Kathryn Rubino: You can’t make me take that test again.
Joe Patrice: Yeah, we need and this is true just generally like for us to report these stories, we need you to tell us about them, which means write us at [email protected]. We also have Twitter and all that, but honestly the email is the easiest. It goes to the boxes of all the editors, so we can see it. It’s the most efficient way to reach us. So, with that said, good luck to everybody doing it.
Kathryn Rubino: Yes, good luck.
Joe Patrice: For everyone else, I hope this was a pleasant trip down memory lane where you remembered what the bar exam was like and with that, I think we’re done. That means thanks for listening. You should be listening to this podcast, you should be subscribed,
you should give reviews which means both just writing and you know, giving stars and
writing a little bit of a little narrative about how awesome we are. These sorts of things actually do matter when it comes to the algorithms that promote podcasts. You should be reading Above the Law, you should be following. I’m @josephpatrice on Twitter. She’s @kathryn1, the numeral one on Twitter. You should listen to some of the other shows that we do. We have The Jabot which Kathryn hosts. We have the ATL COVID cast, our special report about COVID and the law and the changes that are coming from that.
You should listen to the other shows on the Legal Talk Network and again, if you’re interested in legal tech, the legal tech happy hour, that I just described is also out there. So, listen all those things and we will check in with you later.
Kathryn Rubino: Bye.
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