The bar exam is not the problem

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To be admitted to practice law in the state of Maryland, a graduate of an accredited law school must pass the bar examination. The examination is a grueling experience under normal conditions; the COVID-19 pandemic has made an already difficult situation far worse.

Some states have forged ahead with the traditional in-person examination, thereby exposing students, proctors, and the public to risk of transmission. Others have imposed draconian restrictions, such as a ban on bringing feminine products to the testing area. Michigan shifted to an online examination, only to have the testing software crash during the examination. In the latest gaffe, Florida pulled the plug on its examination just three days before it was to be held.

Maryland has charted a more deliberate and prudent course. The state postponed the regularly held July examination until September, pushed it further to October, and then shifted to an online testing format

for the October examination, each decision reflecting an ongoing interest in ensuring that the bar examination can be administered safely and responsibly.

On Friday, the Court of Appeals of Maryland, the state’s highest court, invited public comment on whether and to what extent the October examination should proceed. The request for feedback follows an emergency petition, filed with the court by recent law school graduates, urging the court to forgo the Uniform Bar Exam component of the examination.

To resolve whether Maryland should administer a full online examination, as currently planned, or waive the UBE, as proposed in the petition, it is necessary to consider the fundamental purpose of the bar examination itself. It seems that a primary rationale for the examination is that it promotes public confidence in newly admitted attorneys.

This justification raises a critical question: What is the point of three years of full-time legal education (and its associated financial and psychological costs), if it produces graduates who are nonetheless incompetent, or at least perceived to be incompetent?

Instead of perpetuating a system in which an examination apparently compensates for the shortcomings in legal education and asking only whether the examination should be offered fully or partially, the profession should be assessing how legal education may be improved such that the examination may be dispensed with entirely. That is, it is time to treat the underlying cause rather than merely tinker with

the remedy.

A better approach

Closing the gaps between legal education and legal practice, and between professional competence and the public confidence, may seem to be a task beyond the profession’s grasp, particularly in light of

present circumstances, but workable solutions at the law school level are well within reach.  For example, each law student should be required to pass professional skills courses (e.g., legal research and

writing) of at least three credits every semester and to demonstrate certain practice proficiencies after each year.

The current post-graduation system represents a squandered opportunity to provide meaningful instruction and guidance to graduates at the threshold of the profession. At present, preparation for the bar examination consists of rote memorization.

In lieu of this extended cram session, each law school graduate should attend mandatory seminars on Maryland law, court procedure and etiquette, professionalism, and community engagement. These seminars — akin to foundational legal education, an early counterpart to existing continuing legal education courses — will allow the members of the bar and bench to mentor entering professionals, set the curriculum, and produce income that can then be deployed for scholarships, access to justice projects, and similar civic initiatives.

In short, the bar examination as we know it should be scrapped. The Maryland law component of the examination should be replaced with intensive educational sessions. And law schools take on greater

responsibility to ensure that graduates possess the requisite knowledge and professional skills to undertake the practice of law.

Dawinder S. Sidhu, a professor at the University of Maryland and member of the Maryland bar since 2004, has taught at both Maryland law schools.