Bar Exam Failures 
Are on the Rise 

By: LEIGH JONES
Staff reporter


Hiring partners don't mention it, would-be associates won't touch the subject and law schools would rather avoid the issue altogether. But the possibility of failing the bar exam becomes a reality for tens of thousands of law school graduates each year.

And it's getting worse.

Last month, lawyer hopefuls across the country sat for the bar exam, many taking a second shot at the rite of passage after failing the test in July. If the results for February's test-takers are in keeping with recent pass rates, plenty of those graduates-or the majority, in many jurisdictions-will face failure once again.

"It is a terrible blow," said Robert Williams, hiring partner at Sheppard, Mullin, Richter & Hampton in Los Angeles. Although he said his firm only has one or two new associates who fail the bar exam "about every other year," California is notorious for flunking its examinees. Just 44% passed the test in 2004, the latest year that numbers were available from the National Conference of Bar Examiners (NCBE).

Nationwide, some 28,110 people failed the test in 2004, for a 64% pass rate. By comparison, 65% passed in 2000 and 70% passed in 1995.

Some observers point to higher pass scores required by some states as the culprit, others note a proliferation of new and unaccredited law schools, and still others blame a lack of preparation provided by all law schools. Indeed, the situation has become such a concern that law schools have begun implementing for-credit bar-review courses into their curricula.

Whatever the reason, the failure to get an attorney's license is creating a crisis situation for a growing number of graduates who sit for the exam, often burdened with crippling debt.

"My whole family was depending on me, but you can't let it suck you into the abyss," said a graduate who took the Pennsylvania bar exam three times before passing it and requested anonymity for this story. With two small children, she was $130,000 in debt after graduating from William Mitchell College of Law in St. Paul, Minn. She will start a job in a district attorney's office in a few weeks.

Since 1995, the number of people failing the test has ballooned by 28%, while the number of law graduates taking the bar exam has increased by 6.4%, according to the NCBE. In 2004, some 77,246 people sat for the bar exam, compared to 72,591 in 1995.

Two strikes

Although fewer graduates overall are conquering the test, apparently law firms are not taking pity. In fact, many firms in recent times have adopted a strict "two strikes" policy, said Susan Robinson, associate dean for career services at Stanford Law School.

A holdover from the dot-com years when firms bulked up their ranks and then needed to slash jobs after the bust, law firm policies allow for few, if any, exceptions to the two-strikes rule, Robinson said.

"Firms used to be more flexible," she said.

Gibson, Dunn & Crutcher adheres to the two-strikes rule, said hiring partner Kevin Rosen.

"They have to pass the second time around," he said.

Like many other law firms, Los Angeles-based Gibson Dunn pays for bar prep courses and the exam fee for the 135 or so new associates it hires each year. It also provides a stipend, the equivalent of six weeks' pay in most large firms, to cover living expenses incurred after graduation and before their start date.

Most firms will pay for a second exam, Robinson said, and allow for time off to study, but often without pay. An increasing number of firms, she said, are treating the stipend as a salary advance.

For those who do not pass the first time, the percentage of success drops significantly. In Florida, for example, 74% of the first-timers taking the July 2004 test passed, but just 25% of the repeaters passed. In Michigan, 76% of the first-timers passed the July 2004 exam, while only 28% of repeaters were successful.

The lamentations of repeaters are evident on a popular blog, The Uncivil Litigator. One lawyer hopeful posted last month to the online journal, "This is my fourth time taking this stupid test in California, and if I don't pass, I'm thinking about killing myself. That is, if my parents don't kill me first."

Another wrote, "Law school is the biggest mistake I ever made in my life . . . .I am having a nervous breakdown to the point that I can't even study."

And still another repeater wrote, "I am beside myself . . . .I feel isolated and resentful and can barely sleep."

Few law school graduates can ignore the fear that the testing gods may fail them on exam day, and the chances for flunking have not escaped some of the most renowned legal professionals. Kathleen Sullivan, former Stanford Law School dean and a former Harvard Law School professor, last year was one of the unlucky ones.

Los Angeles Mayor Antonio Villaraigosa bungled the exam-four times, no less-and the late John F. Kennedy Jr. needed three tries to pass the New York bar exam.

California generally has the lowest pass rate each year in the country, usually around 50%.

Other states with relatively low rates include Delaware, Alabama and Louisiana. High pass rates often are in Utah, where generally about 88% succeed. Montana also routinely has high pass rates, often above 85%.

Included in the NCBE's tallies are results from Guam, Palau and Puerto Rico, where a handful of people typically take the test but also where pass rates frequently fall below 50%.

Multistate exam

Exam takers in 48 states all endure the same one-day, multiple-choice test, called the multistate bar examination, although the number of right answers required to pass varies depending on the jurisdiction.

Individual jurisdictions also administer exams on state law on a second day, usually in the form of essay questions. Some states also give a practical-skills exam on a third day of testing.

The reasons for the failures apparently are numerous.

Some states, including New York, have raised the so-called "cut score" on their exams, meaning the minimum score required to pass. As of 2005, New York examinees needed to earn an additional five points to qualify for licensure.

In July, the pass rate dropped one percentage point from the prior year and two from 2003.

Other states raising their minimum passing score in recent years are Florida, Ohio and Illinois.

"I'm not sure that the bar exam is getting harder. It's the cutoff line that really seems to make the big difference," said Denise Riebe, a senior lecturing fellow at Duke Law School and the author of Pass the Bar! (Carolina Academic Press, 2005).

Another possible reason for the escalating failure rate is a growing number of new and unaccredited law schools. Since 2003, at least seven new law schools have popped up across the country, but most of them are in the process of acquiring accreditation from the American Bar Association (ABA).

Those schools are different from nonaccredited schools, which do not seek ABA approval. In 2004, some 3,457 graduates from non-ABA accredited schools in 23 states took the bar exam. Only 26% of those graduates passed.

In California, about 30 law schools operate without ABA accreditation, said John Sebert, consultant on legal education to the ABA. Schools without ABA accreditation typically do not follow the organization's rules pertaining to student/faculty ratios, library services, faculty credentials and more.

About half of those schools are accredited by the state, which allows students to take the bar exam, Sebert said, adding that the other half are not accredited by the state or the ABA. Students at those schools must take a "mini-bar" after their first year to qualify to take the exam after graduation, he said.

A lack of preparation provided by all law schools may be another reason for the high number of failures. The traditional preparation method of post-graduation cramming and commercial bar courses, such as BarBri and MicroMash, is insufficient, say those who argue that law schools are not shouldering their share of responsibility in helping students pass the exam.

Riebe, at Duke, said law school grades are among the chief indicators of success on the bar exam, and most law schools can identify the point at which students falling below a certain mark will likely fail the test, even if they remain in good academic standing.

But law schools historically have not been in the "academic support/personal support" business, Riebe said.

Bar preparation

That may be changing, however. Pursuant to a recent rule modification by the ABA, law schools for the first time last year began offering their own bar-preparation courses for credit.

Although the classes cannot count toward the minimum number of credits needed for graduation, students attending law schools that require more credits than the ABA minimum can receive credit for taking the courses.

Riebe is teaching at Pace University School of Law a new course that helps students who are identified by the school as at risk of failing the bar. Dozens of other schools have implemented bar courses for credits since the ABA's change, she said.

Stephen Friedman, dean of Pace law school in White Plains, N.Y., said that the course is part of the school's broader mission of educating students to become good lawyers.

"Law schools are professionals' schools and have an obligation to prepare students to enter the profession," Friedman said. "The bar exam is one of the hurdles."

But all the commercial courses, law school assistance and employer support mean little without the graduate's own hard work, said Mark Rosenthal, hiring partner at 165-attorney Jeffer, Mangels, Butler & Marmaro in Los Angeles.

A few years ago, the firm hired a Harvard Law School graduate who decided to take an extended honeymoon with her husband, who had graduated from Harvard at the same time, instead of buckling down for the exam, he said. They both failed.

He is reminded of their situation when he speaks to the firm's new associates each year.

"I talk to them about taking it seriously," Rosenthal said, adding, however, that having the right mindset is crucial.

"The hardest part of passing is not worrying about it," he said.