California to tighten bar admission rules?

Discussions on the value or merit of unaccredited programs and institutions.

California to tighten bar admission rules?

Postby Roald » Fri Dec 28, 2012 7:25 am

According to Calbar's website, a state bar Task Force on Admission Regulation and Reform will meet in January to discuss, among other things, the possibility of limiting admission to the California bar to graduates of ABA and CBE accredited law schools.

I have no clue what (if any) weight this Task Force carries, or who determines its agenda. Nonetheless, considering the paucity of jurisdictions open to graduates of unaccredited law schools, any tightening of California's rules would have a potentially enormous impact on the unnaccredited law school industry.

I had also heard recently that Calbar is considering using bar pass rates as part of its own CBE accreditation criteria. I haven't been able to independently confirm this, but I was told Calbar is looking at a rule requiring at least 50% of graduates to pass the bar within five years. That's actually fairly generous, and doesn't peg a school's pass rate to the statewide average (as do the ABA's rules).

California has, thus far, marched to it's own beat on these issues. It'll be interesting to see what happens.
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Re: California to tighten bar admission rules?

Postby Tark » Fri Dec 28, 2012 6:09 pm

I was told Calbar is looking at a rule requiring at least 50% of graduates to pass the bar within five years. That's actually fairly generous, and doesn't peg a school's pass rate to the statewide average (as do the ABA's rules).

The ABA rules actually provide three different ways to meet the bar pass rate requirement (shown as sections 1a, 1b, and 2 in the link). Only one of these (section 2) involves comparison of a school's pass rate to the statewide average. So the ABA rules don't necessarily peg a school's pass rate to the statewide average -- it is possible to meet the ABA requirements that way, but there are also other acceptable ways.

Under section 1a, a school's bar pass rate is considered satisfactory if 75% of students pass within 5 years (without regard to statewide averages). So that approach is very similar to the proposed California rule, except the ABA rule is tighter, since the required number is 75% rather than 50%.
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Fri Dec 28, 2012 10:10 pm

California's permissiveness has always been a dual-edged sword. By allowing almost anything to become a law school, they really opened up opportunities for people to gain admission and to study the law--even leading to becoming an attorney. But....

The odds of becoming a licensed attorney via an unaccredited DL law school are really small. Really small. Assuming admission, one must first complete a year (more than 900 hours) of study in the first year. Then one must pass the "Baby Bar," required of students at unaccredited (by the California Bar or the ABA) schools. The pass rates are dismal, and significantly lower for DL students. The few that make it through must then take 3 more years of documented study. If they complete that they can sit for the Bar. The pass rates on the Bar are terrible for DL students. The final percentage of students who eventually become attorneys is tiny, perhaps in the single digits.

When does this become a consumer protection issue? Back when it was hard to get into law schools and attorneys were in demand, these low-percentage alternatives seemed more tolerable. But even if you pass the Bar, your employment prospects are bad--and even more so if you attended an unaccredited school. Should consumers be protected by tightened standards? (Eliminate unaccredited schools, perhaps?)

Then again, Orly Taitz made it through. If that idiot can do it....
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Re: California to tighten bar admission rules?

Postby nosborne48 » Fri Dec 28, 2012 10:21 pm

If I remember aright, California is rare among the states in that the requirements for Bar admission are statutory rather than the subject of a Supreme Court rule. The California Supreme Court (I suppose) would have to ask the Legislature to amend the Business and Professions code.
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Re: California to tighten bar admission rules?

Postby Jonathan Whatley » Fri Dec 28, 2012 10:22 pm

A interesting compromise possibility might be tightening or ending eligibility for law schools without ABA or CBE approval, but opening CBE approval to DL/correspondence law schools somehow. (Note that CBE schools today, all residential, can run the bar-qualifying JD over three years for full-time students. Schools without ABA or CBE, including DL/correspondence schools, have to run their programs over a minimum of four calendar years.)
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Re: California to tighten bar admission rules?

Postby Tark » Sat Dec 29, 2012 12:45 am

(Note that CBE schools today, all residential, can run the bar-qualifying JD over three years for full-time students. Schools without ABA or CBE, including DL/correspondence schools, have to run their programs over a minimum of four calendar years.)

In practice, I suspect that the majority of CBE students study on a part-time basis, and also finish in 4 calendar years. The full-time 3-year or 3.5-year option does exist at some CBE schools, but my impression is that that the part-time 4-year plan is the norm.
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Re: California to tighten bar admission rules?

Postby Roald » Sat Dec 29, 2012 6:50 am

Rich Douglas wrote:California's permissiveness has always been a dual-edged sword. By allowing almost anything to become a law school, they really opened up opportunities for people to gain admission and to study the law--even leading to becoming an attorney. But....


Yes, and that's exactly why I have mixed emotions about this issue. I support California's tradition of allowing alternative routes to bar admission, apart from the ABA scheme. I think it's important to provide options for quality legal education to working adults and those who simply can't afford $50-$150,000 in tuition. However, it's also important to have meaningful standards for legal education, beyond that which is required to pass the bar exam.

Some unaccredited schools (both DL and fixed facility) have consistently posted FYLSE and bar pass rates in the 0-10% range. Four CBE accredited schools showed 0% first time passers in July, 2012. That's simply awful. Comparatively, the lowest performing California ABA school (Thomas Jefferson) still posted a 52% first time pass rate. Such low pass rates indicate a problem in admissions, academic rigor/support, or both.

It seems possible that some kind of compromise can be reached, but if unaccredited law schools want to be taken seriously they're going to have to meet the state bar half way. If a school is posting single digit pass rates it's entirely legitimate to question their policies, and to explore the issue of consumer protection.

Schools like Concord and Taft, however, do have a track record of producing attorneys (albeit in small batches), and I'd hate to see the entire DL option negated because of the bad apples.
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Re: California to tighten bar admission rules?

Postby Roald » Sat Dec 29, 2012 6:59 am

Jonathan Whatley wrote:A interesting compromise possibility might be tightening or ending eligibility for law schools without ABA or CBE approval, but opening CBE approval to DL/correspondence law schools somehow.


Although that's a possibility, it appears unlikely. To the best of my knowledge, the CA bar has shown no interest in extending CBE accreditation to DL programs. If any DL school were able to lobby for such a compromise, however, it would be the deep-pocketed Concord.

If CA did limit future bar admission to ABA/CBE grads, would that effectively spell the end for legal education? Of course a few people will always be interested in a non-bar qualifying J.D. (or E.J.D.), but I assume that most DL law students plan to take the CA bar.
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Re: California to tighten bar admission rules?

Postby Roald » Sat Dec 29, 2012 6:07 pm

Roald wrote:If CA did limit future bar admission to ABA/CBE grads, would that effectively spell the end for legal education?


Sorry, I meant unaccredited legal education.
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Re: California to tighten bar admission rules?

Postby nosborne48 » Mon Dec 31, 2012 5:05 pm

I don't really see how any California law school offering a resident program can justify not becoming CBE accredited. These schools have failure rates far exceeding the CBE crowd. D/L schools' students actually do significantly better than the unaccredited resident students do. The conclusion I draw is that the UA resident schools are deliberately accepting the tuition dollars of people that have zero realistic chance of ever practicing law. That is exploitation, pure and simple.
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Re: California to tighten bar admission rules?

Postby cbkent » Tue Jan 01, 2013 4:40 pm

IMO, one problem is that CBE and ABA are unwilling to accredit DL/internet law schools. As a result, we have seen one-person law schools calling themselves "universities" with the blessing of the BPPVE, schools founded by lawyers who were disciplined and unable to practice, and schools willing to admit warm bodies.

It should come as no surprise that graduates of such institutions do not fare well on the bar exam.
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Tue Jan 01, 2013 5:57 pm

Becoming an attorney is a lot more than passing a Bar Exam.

Using Bloom's taxonomy for a moment, we can look at education as advancing humans in three ways:
-- Cognitive. This is the knowledge learned in an educational setting.
-- Psycho-motor. These are the physical skills developed in an educational setting.
-- Effective. And these are the values gained.

A test like the Bar Exam certainly measures knowledge of the law ("cognitive"). It can even test for ethical thinking ("effective"). But it cannot test for all the behaviors ("psycho-motor") it takes to be an effective attorney. It doesn't test whether or not you'll behave ethically, interview a client (or suspect, or stakeholder, or third-party, etc.) effectively. It doesn't test whether or not you can communicate to judges, juries, bosses, clients, etc. And, I'm sure, much more.

But it isn't designed to do that, either. In fact, much of that measurement--explicit or tacit--comes either during or after law school.

Let's say there are psycho-motor skills to be learned before one becomes an attorney. Those behaviors have to be learned in school and, hopefully, measured somehow. (Let me pause here and say I've never attended law school, so I'll leave it to others to comment on this.)

If this is true, how would DL law schools do this? Well, if they use live, synchronous methods, they might. But they tend not to. Studying the law by DL is largely the correspondence school process, updated with newer and better technology. It's you against the body of knowledge. Pass through the program and then take on the Bar (and the Baby Bar before it). But is the product comparable?

Is someone who graduates from a DL law school and passes the bar comparably prepared compared to an ABA (or CBE)-accredited law school graduate who passes the Bar? I wonder.

In short, if there's more to becoming an attorney than studying the law and passing the Bar, then DL law schools can't deliver because of the limitations of the learning medium. (This is also true of DL in just about any non-scholarly subject.) If not, the argument is moot.

Maybe the late David Noble was on to something?
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Re: California to tighten bar admission rules?

Postby nosborne48 » Wed Jan 02, 2013 12:24 am

The analysis of attorney-ness sounds pretty good to me but the conclusion has a hidden flaw...resident, ABA approved schools don't teach this stuff either. The J.D. Isn't like the M.D. In this respect. It lacks more than a token clinical experience, if that.
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Re: California to tighten bar admission rules?

Postby Rich Douglas » Wed Jan 02, 2013 2:42 am

nosborne48 wrote:The analysis of attorney-ness sounds pretty good to me but the conclusion has a hidden flaw...resident, ABA approved schools don't teach this stuff either. The J.D. Isn't like the M.D. In this respect. It lacks more than a token clinical experience, if that.


Again, I don't claim insight to legal education. That said, we in Human Resource Development refer to the concept of tacit vs. explicit learning. Tacit learning is all the stuff you know and learn without being explicitly taught it.

The movie "A Few Good Men" has an excellent example of it. Lt Kaffee is asking Noah Wylie's character (Corporal Barnes) about the handbook down in Gitmo:

Kaffee: Corporal, would you turn to the page in this book that says where the mess hall is, please.
Cpl. Barnes: Well, Lt. Kaffee, that's not in the book, sir.
Kaffee: You mean to say in all your time at Gitmo you've never had a meal?
Cpl. Barnes: No, sir. Three squares a day, sir.
Kaffee: I don't understand. How did you know where the mess hall was if it's not in this book?
Cpl. Barnes: Well, I guess I just followed the crowd at chow time, sir.
Kaffee: No more questions.


Kaffee was trying to show that there was a lot of things people on Gitmo knew to do that weren't documented. That's tacit learning!

Does the law school experience contain a whole lot of tacit learning? I have no doubt it does. But does that matter? I don't know. Perhaps others do. If it does, the Bar doesn't measure it.
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Re: California to tighten bar admission rules?

Postby nosborne48 » Wed Jan 02, 2013 3:41 am

I wish it did but substantial practice experiennce is an actual DISqualifier for a tenure track law professor appointment.
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