Should California make it easier to practice law?

Does California have too many lawyers, or too few?

That’s the unspoken question underlying a complicated debate within California’s legal community over whether the examination that would-be attorneys must pass to be licensed is too difficult.

The passage rate on the State Bar’s July test, released in November, plummeted to an all-time low of 40.7 percent, which Tani Cantil-Sakauye, chief justice of the state Supreme Court, described as “frightening” last week.

California’s minimum score on the test is the nation’s second highest and as the passage rate has declined year after year, critics have called for lowering the “cut score,” as it’s known, thereby allowing more law school graduates to be admitted to the bar.

The loudest complaints come from deans of the state’s 21 accredited law schools, some of which are in danger of losing their accreditation because too few of their graduates are passing the State Bar’s exam.

The American Bar Association, which accredits law schools, has been cracking down on schools whose graduates have high failure rates. Losing accreditation would be an institutional death sentence.

“We recognize that some critics blame us for this situation,” three of those deans wrote in a Los Angeles Times op-ed article last month, after the latest passage rate was announced.

“They say that we are admitting students to law schools who are not adequately qualified. From 2010 to 2017 there was a decline in LSAT scores and undergraduate GPAs of admitted law students in California and nationally, and there is undoubtedly some correlation between those metrics and performance on the bar exam, as well as in law school. However, while this may explain some of the recent decline in bar passage rates, it does not explain most of it, nor does this provide any legitimate reason for keeping California’s cut score so much higher than other states’.

“It is more plausible to hypothesize that the bar exam has grown anachronistic, a test designed for a paper-and-pencil generation now inflicted on a smartphone generation. Memorizing large amounts of information and regurgitating it over a few days has little predictive power for lawyering competence today. Recent graduates may well be worse than their predecessors at this skill set — likely we all are — but they may be at least as good at other problem-solving skills lawyers need.”

So far, however, the state Supreme Court, which has the ultimate say over the issue, has declined to lower the cut score, awaiting results of two State Bar studies. One assesses California law school students, and the other weighs what skills contemporary lawyers need and how those traits can be tested.

“We know we still need to take a look, and we’re waiting for those (studies’) results to come in,” Cantil-Sakauye told legal affairs reporters who asked about the low passage rate during a joint interview. “And then we’ll sit around this table, all seven of us, and we’ll talk about these results and whether or not we should lower the exam score.”

While the law school deans push for lowering the State Bar’s cut score, there’s not much enthusiasm for change in the larger legal community.

When the State Bar conducted an on-line survey of its members about the issue, nearly 80 percent voted in favor of leaving the cut score at its present level.

One might surmise that those who have passed the test and are practicing law aren’t interested in having even more attorneys competing for legal business.