HB 115 — The Speaker Speaks

From the tip line:

Speaker Richardson just spoke at a Young Lawyers Division luncheon. He was asked about “lowering the standards required to take the bar exam.” He replied that this bill has “strong legs” and “will” be passed. He also said that he knew two good attorneys that he worked with that had taken the California Bar and couldn’t sit for Georgia’s Bar. It seemed personal.

15 comments

  1. memberg says:

    So why not just pass a law that admits them specifically? Can they even do that? I know that Congress often passes Private Laws (as opposed to Public Laws), e.g. John Q. Alien is hereby granted U.S. Citizenship.

  2. California’s bar exam is a lot harder than Georgia’s. If they pass that, why not just allow them to take/pass Georgia’s?

    Glenn said they have “taken” the California Bar, does taken mean passed? Being a lawyer, I think Glenn would have said “passed” if that’s what he meant.

    So will Richardson’s legal legacy be allowing the Georgia bar to be the final destination for people who can’t pass other states more difficult bar exams?

  3. memberg says:

    Dow Jones can sue me:

    The Wall Street Journal

    December 5, 2005 Monday

    SECTION: Pg. A1

    LENGTH: 1336 words

    HEADLINE: Raising the Bar: Even Top Lawyers Fail California Exam — Former Stanford Law Dean, Becomes Latest Victim;
    A Mayor Tries Four Times

    BYLINE: By James Bandler and Nathan Koppel

    BODY:

    Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California’s notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed — including Ms. Sullivan.

    Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist.

    The California bar exam has created misery for thousands of aspiring and practicing lawyers. Former California Gov. Jerry Brown passed on his second try, while former Gov. Pete Wilson needed four attempts. The recently elected mayor of Los Angeles, Antonio R. Villaraigosa, never did pass the bar after failing four times.

    But it’s unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. “She is a rock star,” says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. “Practically every lawyer in the U.S. knows who Kathleen Sullivan is.” If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. “The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it.”

    Ms. Sullivan, 50 years old, did not return phone and email messages seeking comment. Her firm said she wasn’t reachable over the weekend because she was at a remote location.

    Mr. Urquhart says he does not know Ms. Sullivan’s score, but knows she spent little time preparing because she was inundated with work for the firm and Stanford Law School, where she now runs the school’s constitutional law center. Ms. Sullivan plans to take the test again, according to Mr. Urquhart. “She’ll prepare more next time,” he says. “My advice to her is that she should look at 15 bar questions and 15 sample, perfect answers. That is all she’ll need to pass.”

    The California test, by all accounts, is tough. It lasts three days, as compared with two or 2 1/2-day exams in most states. Only one state — Delaware — has a higher minimum passing score. According to the National Conference of Bar Examiners, just 44% of those taking the California bar in 2004 passed the exam, the lowest percentage in the country, versus a national average of 64%.

    Like many professions, lawyers are regulated by the states, and nearly every state requires passage of a bar exam for attorneys to practice law. Some states grant reciprocity to out-of-state lawyers. California does not; to be licensed in the state, one must pass the California bar exam. This July’s version of the California test aimed at lawyers licensed in other states — like Ms. Sullivan — claimed an unusually high percentage of victims.

    The two-day test, which is identical to the longer exam but omits a long multiple-choice section, had just a 28% passage rate in July, an astoundingly low figure that state bar officials are at a loss to explain. Out-of-state lawyers can take the full three-day exam if they choose.

    Critics say the test is capricious, unreliable and a poor measure of future lawyering skills. Some also complain that California’s system serves to protect the state’s lawyers by excluding competition from out-of-state attorneys. There has been some loosening of the rules. California adopted rules last year permitting certain classes of lawyers to practice in the state without having to take the bar.

    Gayle Murphy, the senior executive for admissions for the State Bar of California, says that the purpose of the bar exam is to protect the public, not to restrain competition. Great efforts are taken to make sure exam grading is fair, including use of multiple graders, she says. The exam includes six essays and two written performance tests. Each written part is assigned a separate grader. Test-takers who are close to the passing line are assigned nine more graders, so a borderline exam will have as many as 17 graders.

    One reason for California’s high failure rate, Ms. Murphy says, is that graduates of unaccredited and correspondence law schools are allowed in California to take the test. California’s pass rate for ABA-approved schools is in line with those of other states, Ms. Murphy says. She says a possible reason for failures by practicing lawyers is that they simply don’t have enough time to put in the requisite studying hours. Attending a premier law school doesn’t guarantee success: former Gov. Wilson got his law degree from Berkeley, while former Gov. Brown went to Yale.

    Aundrea Newsome, an attorney in Hermosa Beach, Calif., who passed the July test, limited her prep time to two months, but she worked eight to 10 hours a day, every day, during that stretch. “That is standard,” she says. “You make a deal with the devil and give up two months of your life to pass.”

    Ms. Newsome, who graduated from the University of Southern California Law School in May, says preparing for the exam requires studying so many different legal fields, including such arcane topics as 18th-century criminal common law, that practical knowledge or even mastery of several legal subjects is not enough.

    Robert Pfister, who was already licensed in Indiana, Connecticut and New York, also found the experience grueling. After the first morning of the exam, “you feel like your hand will fall off from writing so much,” says Mr. Pfister, an associate with Simpson Thacher & Bartlett LLP who passed the July exam in California. “After the second day, you just want to go home and sleep. But then you have to come back for a third day.”

    Mr. Pfister, who handles securities-fraud cases and had been practicing law for about four years before taking the California bar, recalls one question where he was asked to parse the law that would apply to a disabled child who was seeking to move to a housing complex. “You can be the greatest personal-injury lawyer in the country, or mergers and acquisitions lawyer,” he says. “But the stuff they give you is often some area of law you haven’t dealt with.”

    Former Gov. Wilson describes his need to take the bar exam four times as “frustrating.” He blames his difficulties on his penmanship, which he says was not messy, but very slow. “To put it in the simplest terms, if I had not learned to type, I would never have passed it,” says Mr. Wilson.

    A spokesman for former Gov. Brown, who is currently mayor of Oakland, Calif., says several of his classmates from Yale also failed the exam, some of whom went on to be judges and prominent lawyers.

    A native of New York City, Ms. Sullivan has an undergraduate degree from Cornell University and a law degree from Harvard University. She taught at both Stanford and Harvard before becoming dean of Stanford’s law school in 1999. The author of a leading constitutional-law casebook, Ms. Sullivan has argued several cases before the Supreme Court. Earlier this spring, the nation’s highest court ruled in favor of one of her clients, a California winegrowers’ group, striking down state laws that restricted direct sales from vineyards to consumers.

    Last year, after announcing she would step down from her Stanford post, Ms. Sullivan joined the Silicon Valley office of Quinn Emanuel Urquhart to head a new appellate practice.

    Ms. Sullivan is unlikely to need as many attempts as Maxcy Dean Filer, who may hold the California bar endurance record, having passed in 1991 after 47 unsuccessful tries. The Compton, Calif., man, who says he’ll practice any kind of law that “comes through the door — except probate and bankruptcy,” says he always tried to psych himself up before taking the test by repeating, “I didn’t fail the bar, the bar failed me.”

  4. bird says:

    Ok, then maybe the bill should permit taking the Georgia Bar for those who have (A) been to an accredited law school or (B) passed the California Bar.

    That isn’t HB 115 though.

  5. eehrhart says:

    Just as a point of fact the young lawyers who have been discussed several times on this site, and who have been denied the opportunity to even take the Georgia exam, have passed the California bar exam and done so with superb marks.

    Georgia does not even have a waiver process which is written and objective. I find this a fascinating irony for a profession which calls for objective standards regularly and who also has such a dispostion for process. This is not meant in a derogatory fashion towards lawyers it is only ironic and I would think most lawyers would be uncomfortable with such.

  6. JRM2016 says:

    Georgia has an eminently fair rule.

    If you have practiced for five years, you can be admitted on motion.

    The only hitch is that the state you are coming from (i.e. California) must give the same courtesy to Georgia lawyers.

    They don’t.

    Why do you want to pass legislation that will increase the already suffocating number of Georgia licensed attorneys and insure the crushing flow of new attorneys are those who were unwilling or unable to meet the educational requirements in place to sit for the bar exam in Georgia or waive in through the reciprocal rule mentioned above?

    I dare say the young attorneys you mentioned could have found out the rule for admission to the Georgia Bar before selecting the law school of their choice. I know I did my homework on the various states I was interested in practicing in before deciding where to go.

    Also, as a small aside, it is worth noting that there is at least an argument that HB 115 is unconstitutional, as the Georgia Constitution and relevant case law seem to suggest that the power to regulate the legal profession lies with the judicial, not legislative branch of government.

  7. Erick says:

    JRM, you raise a good point. My thinking has been that the law is unconstitutional, or will be found as such by the Supreme Court.

  8. canitbetrue says:

    As a current law student at an ABA accredited school, I strongly disagree with this bill. I believe that this bill has support in the House only because of the two young lawyers that happen to work for the House. As JRM said, why didn’t these individuals choose a law school that would allow them to sit for the Georgia bar in the first place? If there isn’t a requirement to attend an ABA accredited school to sit for the Bar, then why require going to law school in the first place? Why not just make the requirement that one must pass the bar?

  9. Headin\' South says:

    I’ve practiced law for several years. The most unpleasant, unethical, and unpleasant attorneys I have encountered by far are those who graduated from law schools that were unaccredited at the time of their graduation. I encounter situations regularly where an attorney has screwed up so badly, his or her client has been injured. What is worse is that most of the clients do not know it.

    Professional licensing boards (including the Ga. Bar) exist for the purpose of protecting the public. The Georgia legislature is NOT helping the public on this one.

    There are many in our firm and elsewhere who believe that any reasonably intelligent person can pass the Georgia Bar without law school, so long as he or she is able to take one of the bar preparation classes and study 8-10 hours a day for the 10 weeks prior to the exam. I don’t think we should lower our standards and remove the requirement of a JD from an accredited law school

    But if the State of Georgia is willing to do so, I’m going to open up the Headin’ South Online Law School, where for $500 anyone can get a their JD. Why spend 3 years and umpteen thousand dollars trying to get a degree when all you have to do is have a $500 JD and take a bar prep course?

  10. DoubleDawg3 says:

    Yes, this is purely a personal thing for Glenn Richardson, Earl Earhart and other House Republican leadership — the two people he’s referring to are (I’m guessing – but fairly certain) Bryan Tyson, redistricting expert (and a nice, bright guy – I’ll add) and the staffer who worked for Earl Earhart for a few years (she may still be there – not sure — can’t recall her name at the moment). Both went to unnaccredited law schools (in the eyes of the ABA) — they may have been online law schools?

    Didn’t Earhart try to pass a similar bill last year, or the year before?

  11. DTK says:

    “Professional licensing boards … exist for the purpose of protecting the public.”

    But they tend to end up “captured” by the people in the industry they’re supposed to be regulating. And then many of the rules promulgated by these boards in the guise of “protecting people” are really rules that restrict competition.

    I see no reason why we won’t let market proccesses sort out the “good” from the “bad” barbers, plumbers, etc. If private groups wanted to have their own licensing system, that would be fine. They could make sure their members met minimum standards and then issued their own mark, a sort of “Good Housekeeping Seal of Approval” or “Consumer Reports” thumbs-up. That way consumers in the markeplace could see the mark in a phonebook ad or hanging in the window of the barbershop and know this barber meets his industry’s minimum standards.

    But if consumers preferred a lower price to an assurance of minimum standards, then they could go to an “unlicensed” barber and get a better deal. Either way, consumers would know what they’re getting into.

    As for lawyers, it’s a shame that a reasonably bright person can handle doing his own will, but if he tries to help out a neighbor with the same exercise, he’s “practicing law without a license” and subject to the wrath of the State. It’s not enough that the neighbor knew what he was getting into and was willing to accept the risk that his friend might not get his will right in exchange for a much lower cost. Many lawyers think they’re in some sort of priesthood that the average Joe can’t comprehend and therefore needs the protection of the lawyers’ guild from the vagaries of the marketplace. That’s a shame.

    There’s also an assumption that licensing keeps out the evil or the riff-raff who would reak havoc on an unsuspecting public if they weren’t forced to get a license from the State. But I believe this is wrong. There are many “underground” barbers, nail technicians, hairbraiders, etc., who work out of their homes and do a fine job for a better price.

    We would all be better off if these people could operate legally, and perhaps use their talent to expand their business and become taxpayers and business leaders in their community. Unfortunately, this isn’t the case, and they continue to work outside of the light of the marketplace and in violation of the law. In a nation that prides itself on markets and the freedom to choose one’s own career, this seems wrong.

  12. Decaturguy says:

    Earl Ehrhart wants more bad lawyers, who can’t get into a decent law school, to come to Georgia. Great.

  13. JRM2016 says:

    No one is saying that either Ms. Larios or Mr. Tyson are not smart enough to be licensed to practice law in the State of Georgia. For whatever reason, according to the posters on this site, these folks attended non-ABA sanctioned schools. Assuming they are as bright as you claim, they certainly could have looked up the requirements to sit for various state bar exams and find that in 46 states, including Georgia, you must be a graduate of an ABA sanctioned law school to sit for their bar exam.

    I know when I was applying to law school, I remained cognizant of the fact that I wanted to be licensed in Alabama and Georgia. So that eliminated from my list the Jones School of Law in Montgomery, Alabama, which at the time was not ABA sanctioned but which enjoyed acceptance by the Alabama State Bar. Every state has its own licensing requirements (you know this is smaller government and at a more local level) which do vary. If I want to be admitted to South Carolina (which I am thinking about seriously), I have to take another bar exam and attend something like 12 trials in South Carolina. Will it be time consuming and expensive? Yes. Will I seek to persuade the legislators in Columbia to change the licensing requirement their Bar has in place for my personal situation. No. It is the prerogative of the State Bar in conjunction with the Supreme Court to promulgate rules for bar admission to protect the public and insure high quality legal services.

    Let us take DTK’s example about barbers and extend it to doctors. What if we let anyone who felt like cutting on people open a clinic, regardless of educational background? I dare say downward pressure would be applied to rising health care costs. But there would be other costs too, like injuries caused by the untrained doctors that have to be treated elsewhere, minor injuries that are left untreated or treated incorrectly that then require major treatment. The expenses would outweigh the unleashing of a true free market. The same is true in the legal profession. Legal malpractice is expensive. A client is denied a recovery and then seeks to be made whole by the lawyer that committed malpractice. Attorneys that haven’t learned proper procedures would be less likely to settle cases (as 95% of litigation is done today), business transactions and real estate closings improperly done might require triple the work to “fix” after a non-lawyer tried to do it. That is why we have a State Bar and laws against unauthorized practice of law; because the costs to the public at large exceed the benefits.

  14. deanhw says:

    Many of you have submitted compelling arguments for and against H.B. 115. The role of the ABA as well as each state’s Bar is to set high standards in order to (1) protect the public and (2) safeguard the integrity of the law profession. Regardless of which side of the accreditation fence anyone may fall, no one should desire these standards to subside.

    The Bar exam is not just designed to solely identify those who are (potentially) able attorneys, but it is to identify those who are able to effectively interpret and apply the law built on the foundation obtained from completing the rigorousness of law school. Therefore, the argument which suggests that anyone should be able to sit for the Bar without formal legal education is irresponsible at best.

    The practice of law is arguably one of the more sensitive and meticulous disciplines. Sensitive in that lives and life changing matters often hangs in the balance and meticulous in that it often requires the splitting of the finest of hairs. As such, the practice of law ranks up there with medicine, science (technology) and accounting.

    The AMA has as its mission “To promote the art and science of medicine and the betterment of public health.” Since the practice of medicine primarily involves the physical and mental health of the public, the AMA is obligated to formulate the strictest of educational and practical guidelines. Under the legal system lives figuratively hangs in the balance while under the practice of medicine lives literally hangs in the balance.

    The literal and figurative distinction is one which should be profoundly measured when deciding on the veracity of H.B. 115. There is a shortage of non-AMA medical schools (as opposed to non-ABA law schools) because the practice of medicine is more hands-on in that it interrelates directly with the human body (and its mystery) and science (and its emergence). No one can deny the unequivocal gravity of this practice. A med student could not learn the ‘art and science’ of surgery or be thoroughly evaluated on the understanding of the human body through ‘distance learning’ (or the internet).

    However, evaluating internet-based law schools for their effectiveness based on current ABA standards is not quite the same as that of the AMA. The ABA’s mission is to “serve[ing] the public and the profession by promoting justice, professional excellence and respect for the law.” Just as traditional schools, internet-based law schools should be able to meet the standards of the ABA’s mission without diminishing the quality of legal education. The ABA currently allows for some classes to be conducted online.

    Nevertheless, there are some legal techniques which are impossible to thoroughly teach via the internet. These obstacles may be overcome by simply applying some post law school mentoring by experienced attorneys which is already employed by some states’ Bar.

    Finally some has proposed ‘why not simply do the research and attend an ABA accredited school?’ For some, attending traditional law school is not an option due to circumstances of life. If internet-based law schools can provide the quality education as required by the ABA, why not allow its graduates to sit for the Bar?

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