California Launches Its First Practice Analysis for Newly Admitted Attorneys
by Shanae Buffington
The State Bar recently launched its first practice analysis to address the declining bar passage rates. The July 2017 bar exam, the beginning of the two-day administration, had a bar passage rate of 49% for all test takers. In July 2018, the passage rate fell to 40%. The decline mirrors a national trend. In 2018, the National Conference of Bar Examiners reported that the Multistate Bar Examination (MBE) passage rate fell to a 34 year low.
California’s cut score of 1440 was established three decades ago and is higher than every state except Delaware. Proponents of the current cut score argue it is necessary to maintain public protection, while critics argue it creates an unrealistic barrier to enter the profession. The State Bar licenses more than 250,000 attorneys and investigates approximately 16,000 complaints of attorney misconduct annually.
In 2017 and 2018, California conducted a series of studies to determine whether the bar exam appropriately tests the knowledge and skills needed by entry level attorneys. The performance studies provide detailed insight on the correlation between demographic (e.g., racial/ethnic status, gender, applicant’s law school designation) and performance data (e.g., MBE scale score, written scale score, total scale score, pass/fail disposition). The studies concluded that the cut score of 1440 was consistent with the minimum competence level expected of entry level attorneys, and suggested that the 13 different subjects tested on the bar exam remain.
In October 2018, the California Supreme Court appointed a California Attorney Practice Analysis Working Group to provide oversight for the first attorney practice analysis. In March 2019, a subject matter expert panel convened in San Francisco to define the classification of knowledge domains or major areas of responsibility that newly licensed attorneys should have, and the corresponding tasks within the domains. The panel’s work will be used as a basis to create practice analysis surveys that will be disseminated to newly admitted attorneys. The goal is to collect data on attorney practices, in terms of knowledge, skills, and abilities to perform daily tasks through traditional or one-time questionnaires. The survey will also use a relatively new approach, called the Experience Sampling Method (ESM).
The ESM will require participants to provide multiple responses (i.e., two to three times a day) at randomly selected times about the tasks that are currently being performed. Ideally, the contemporaneous nature of the sampling method will provide a rich dataset with more detailed and accurate information than one-time questionnaires and will set the foundation for revisiting the bar exam cut score, content, and format. A final report is scheduled to be completed by the end of this year.