California Bar Exam -- The Nightmare Continues

The Blue Ribbon Commission on the Future of the California Bar Exam has decided that it is not going to join some other states in substituting a national bar exam for its own. That is typical of California, which almost always chooses to go its own way, preferring to create its own Next Gen bar exam than to follow others. No surprise there.

What the bar exam looks like is a critical issue going forward for students, law schools, the legal community, and last, but certainly not least, the California Legislature, which now looks at everything related to the bar with justifiable suspicion. So, no more uncertainty about whether California joins other states in a national bar exam. It's not.

However, the commission is deadlocked on what, if any, alternative pathways to bar admission should be available. Right now, the only other pathways leading to the ability to practice in California: reading the law in an attorney's office (a la Kim Kardashian), taking the attorneys' exam, assuming that you qualify to do so (a shorter exam), or registering as in-house counsel, which means that you can only represent that corporate client and no others. There's no diploma privilege, and I will be taking a dirt nap long before that happens, if ever.

A little history: six years ago the California Supreme Court directed the state bar to "undertake a 'thorough and expedited [ahem!] study' of the pass rate for the California Bar Exam (CBX) to include 'identification and exploration of all issues affecting California bar pass studies.'"

So prompted, then the state bar created a California Attorneys Practice Analysis to survey its members and get intel about what practicing lawyers in this state thought should be on the bar exam. That was smart, to get the working stiffs to opine, rather than legal academics who are often clueless about practice realities.

In May 2020, after reviewing the CAPA survey, the trustees decided that significant policy issues needed to be considered, including whether California would continue to go it alone on the bar exam or join other states in a national bar exam. The commission has decided the critical issue of how the bar exam will look, but there's no consensus about possible alternative pathways to a California bar license, at least so far. Four alternatives were proffered, but none were approved, and dissenting opinions to the commission's report among commission members were varied and vigorous. So any pathway to alternative methods of admission isn't clear yet. I think it's anyone's guess as to what pathways might be recommended, if any.

I am confident that more than 99% of you could care less than zip about awards season here in Tinseltown, but I mention it because this past Sunday at the SAG-AFTRA awards, chosen by actors and given to actors in television and films, old folks won major awards.

Just as some peeps say that lawyers should be pushed out, relegated to whatever your vision of old age looks like (and everyone has a different version of that, especially advertisers) major award winners included Sam Elliott at 77, Michelle Yeoh at 60, and Jamie Lee Curtis at 64, two women definitely considered to be over the hill by Hollywood's ludicrous standards. Sally Field, at 75, won the Lifetime Achievement Award (she started in the biz at 17) and James Hong, a youthful 94, was part of the ensemble movie cast that won for Everything, Everywhere, All at Once.

Why mention this? Finally, Hollywood is coming to terms with the reality that there should be no benchmark for when actors are too old to act. Similarly, to those who would kick lawyers to the curb upon reaching a certain age (and this does happen, duh), I think it's a mistake. I don't just say that because I am a dinosaur.

When to stop working? It's a highly personal question, not to mention a possible legal claim. Just like everything else in our profession, the answer is "it depends." Competence to practice is not a fixed number. I know lawyers who are 80-plus who still out-lawyer others, and lawyers who are complete doofuses in their forties.

Granted, technical competency is now part of the rules of professional conduct, but that should not be a barrier to practice after a certain age. Old peeps can and certainly do learn and keep up (don't we do that all the time with new statutes and case law?) If not sufficiently technically proficient, then that's a perfect opportunity to team up with someone who understands all the new technology, included, but not limited to AI. That person may well have absolutely no idea about how to use a rotary phone or even worse, what that was.

Don't dismiss older lawyers out of hand. We may not be as physically mobile, we may not be as savvy technologically, but our decades of accumulated wisdom, usually achieved the hard way, makes us advisors, mentors, partners, to those who come after us, whatever shape the Next Gen California bar takes. We deserve our own awards for longevity and survival on our own terms.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at oldladylawyer@gmail.com.