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California considers lower bar for its tough lawyer exam

SAN FRANCISCO — The State Bar of California on Monday proposed lowering the minimum score on the most recent licensing exam for attorneys amid an alarming decline in people passing the test, considered one of the toughest in the U.S.

Staff at the state bar presented the option to the agency's Committee of Bar Examiners, which voted to gather public comment until Aug. 25. A final decision on the score would be up to the California Supreme Court.

The proposal would lower the minimum score only for the July exam from 144 to a little over 141 — a seemingly minor reduction, but one that could significantly boost the pass rate. The number was based on a study that determined a range of scores showing the minimum level of competence needed to practice law in California.

Most states have a minimum passing score of 135 or lower, bar staffers say. The committee also voted to seek public comment on leaving the score as it is.

The passage rate on California's July bar exam fell from nearly 62 per cent in 2008 to 43 per cent in 2016, mirroring a national trend. Modeling forecasts suggest the lower score would have boosted California's July 2016 pass rate by 8 per cent, state bar officials said.

"When you look at the decline, what that means is you have fewer lawyers in California over time," said Leah Wilson, the state bar's chief operating officer. "We know that we have significant numbers of people in this state that have inadequate access to counsel or no access to counsel."

Some observers have blamed the falling success rate on a dip in law school applications that has forced institutions to accept applicants who have not done as well academically.

The state bar is studying the calibre and preparation of students in the state's law schools. The passing score proposal was limited to the 2017 July exam in part to see what that study reveals, Wilson said.

She said the state Supreme Court may not want to lower the passing score permanently if the conclusion is that the decline in the pass rate is the result solely of a drop in qualified students.

California had the lowest pass rate in the country by far last year, according to the National Conference of Bar Examiners. The state, however, also had among the highest passing score requirements in the country, and some law school deans say that unfairly penalizes students who would have become lawyers in other states.

More than a dozen law school deans in California urged the state Supreme Court in February to temporarily reduce the bar exam passing score to between 133 and 136 while the state bar studies the issue. They said there was no evidence that the state's higher minimum score produced better lawyers.

David Faigman, dean of the University of California, Hastings College of the Law, said the study on which state bar staff relied was so flawed that its score recommendation was "basically useless."

Faigman said he stood by the 133-136 range he and other deans had recommended, saying there was no indication the states that used it were "overrun by malpracticing attorneys."

Any proposal to lower the score would also need to be approved by the bar's board of trustees before going to the state Supreme Court.

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