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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, October 17, 2018

Bar Exam Failure Is A Harbinger Of Professional Discipline

Following up on my previous post,  WSJ: Deans Push To Lower California Bar Pass Score, But Lawyers With Lower Scores Are More Likely To Be Disciplined Or Disbarred:  Jeffrey S. Kinsler (Founding Dean, Belmont), Is Bar Exam Failure a Harbinger of Professional Discipline?, 91 St. John's L. Rev. 883 (2017):

[T]his Article promised to substantiate two theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including noncommunication—and/or incompetence. With regard to the first thesis, the evidence in this Article establishes a link between bar failure—particularly repeated failure—and subsequent professional discipline. As to the second thesis, the evidence in this Article shows that lawyers who fail the bar exam are not only more likely to be disciplined, but that they have an even greater likelihood of being disciplined for client neglect and/or incompetence. In addition, this Article demonstrates that lawyers who fail the bar exam are more likely to face severe discipline—disbarment or suspension—than lawyers who pass the bar exam on the first attempt.

As a consequence, the Article urges states to adopt one of the “absolute” limits proposed in Part V.

https://taxprof.typepad.com/taxprof_blog/2018/10/bar-exam-failure-is-a-harbinger-of-professional-discipline.html

Legal Education | Permalink

Comments

The dean's are just covering up their subpar admission standards to fill seats during the recession. This was going to come back to haunt them.

Posted by: Chris | Oct 17, 2018 5:35:00 AM

Any discussion of how many state bars are cozy organizations that would never deign sanction a prosecutor or Biglaw associate for behavior that gets struggling solos dinged all the time? I didn't think so. To paraphrase Leona Helmsley, bar discipline is for the little lawyers, not for the lawyers you might see in your social life.

Posted by: Unemployed Northeastern | Oct 17, 2018 7:11:56 AM

Kinsler looks at 69 Tennessee lawyers disciplined in their first 10 years and finds those who had failed the bar at least once before passing were about: 2-3 times more likely to be disciplined (Table 1); twice as likely to be disciplined for client neglect or incompetence (Table 2); and twice as likely to face severe discipline (disbarment or suspension) (Table 3).

Regular commenter UNE suggests "struggling solos" get disciplined at higher rates than big firm lawyers or prosecutors, and this has been my (informal, unscientific) observation as well. A small firm is, financially, a small ship at sea, and small law clients (family law, especially) can be high-maintenance as well as swift to throw a bar beef against a lawyer for "neglect", or to get a little leverage on him because they really want something for nothing.

So, I wonder how much "practice setting" and "type of client" contribute to Kinsler's results, and whether there is a much larger failure syndrome at work here. Would the statistics support a theory whereby bar failers are also disproportionately: (1) lower-credentialed as prelaws, (2) less likely to get into "better" law schools, (3) less likely to do well in law school, (4) more likely to fail the bar first before passing, (5) less likely to land in biglaw or government, and (6) more likely end up as a struggling solo who cuts ethical corners to make ends meet?

Kinsler recommends limiting the number of times an applicant may sit for the bar. But that might be too late for many law grads, who by then have totally blown their wad and are facing a lifetime of debt. If a strong correlation between "struggling solos" and discipline exists, maybe a solution would be to cut off the pipeline leading to the overabundance of "struggling solos" earlier in time, such as at the law school admissions office.

Posted by: Old Ruster | Oct 17, 2018 11:45:53 AM

For that matter, any discussion of how law schools themselves hold no small amount of culpability in this sad affair? They gutted admissions standards for years and years to fill seats. They fill their faculty lounges with shiny pedigrees who, if the students are lucky, might have practiced for as much as three years (all under tight supervision and without getting anywhere near handling a matter by themselves). They do not brook any notion of offering classes that are needed by those who might hang a shingle by choice or desperation after graduation. Etc., etc.

Posted by: Unemployed Northeastern | Oct 17, 2018 1:46:39 PM

If a spate of recent reports, both here and overseas, are any indication, various STEM disciplines are also subject to this Millennial Effect.

Having encountered this "field syndrome" in a spectrum of unrelated areas, impression is that not merely untutored ignorance but a feckless lack of critical thinking wedded to PCBS entitlement produces root incompetence.

In behavioral economics, theses such as Pareto Efficiency address this sorry tendency. Among other things, when any professional guild willfully dilutes its acolytes that overburdened discipline is due for a comeuppance.

Posted by: Pyrthroes | Oct 18, 2018 10:21:37 AM

And then you have Kathleen Sullivan who failed the CA Bar.

Posted by: askeptic | Oct 18, 2018 3:10:34 PM

If someone can't spend 6-8 weeks of hardcore studying and preparing for the bar exam, how can they be expected to have the discipline of seeing a case through to the end, especially ones that have issue after issue arise? (yeah I know that's pretty much all of them). Those who advocate for the elimination of the bar exam simply want to cover for the failure to educate law students at sky high prices.

Posted by: Brian | Oct 18, 2018 3:31:07 PM

Let me get this straight. The author identified a class of lawyers (those who fail the bar exam once) who have a .6% chance of being disciplined within 10 years, and proposes to ban every member of that class from the practice of law based on that fact. This doesn't feel right to me.

Posted by: brad | Oct 18, 2018 5:18:23 PM

Has anyone actually read Kinsler's article? I am writing a response now. What I have found so far is that it is so methodologically flawed that it fails to demonstrate any correlation between the number of bar passage failures and attorney discipline and does not prove his thesis that students who have lower academic performance and who fail the bar are predicted to commit more ethical violations or will commit those violations earlier in their careers than all other attorneys. One of the most serious problems is that he lumps two different kinds of disciplinary actions (client neglect and attorney incompetence) but does not differentiate the actual acts committed by those attorneys. Therefore, his data failed to demonstrate any causation and/or correlation between multiple bar exam failures and the ethical violations. He did not even demonstrate that the 69 cases he studied had factual scenarios that involve any of the subjects and skills required to pass the Tennessee bar exam. For instance, he states that lack of communication with clients is the most common disciplinary violation, but that subject/skill is not a major topic tested on the bar exam as opposed to the MPRE. Although his study has generated headlines and much blog discussion, the one thing it has not done is produce sufficient empirical support for his suppositions.

Posted by: William Patton | Oct 18, 2018 8:46:37 PM

Ultimately, the research shows only a correlation. Do graduates who fail the exam have less chance of being hired and thus engage in riskier, solo endeavors where they have less supervision over their activities, and fewer techniques to cover their misdeeds? And after taking four statistics classes, I still don't know what a "significant" correlation is, as opposed to a "positive" one.

Posted by: Erik l. Smith | Oct 19, 2018 11:39:02 AM