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November 12, 2009

Critics push for national bar exam

Delaware board viewed as protective, restrictive

By MAUREEN MILFORD
The News Journal

The Delaware bar exam is hard -- so hard even Caesar A. Rodney, the nephew of the state's signer of the Declaration of Independence, flunked it on his first try.

Not much has changed in more than 200 years.

Since 1947, the average passing rate of the Delaware bar examination has tracked below 70 percent. Theories vary as to why it is so hard. The Delaware Board of Bar Examiners said it wants to ensure Delaware lawyers are competent to render legal services in the state. Critics say it is to create an exclusive group of practitioners and limit competition.

"Exclusive implies it is highbrow. But it's really small and not competitive," said Lynn LoPucki, a law professor at UCLA Law School, a visiting professor of Harvard Law School and a longtime critic of Delaware. "It is very clearly a protective system."

Now, a movement to adopt a uniform bar exam has the potential to transform how bar exams are given in the United States and to open up the Delaware bar to more outsiders. Under the proposal, results would become portable among states. Unlike most other professions, there is not a national law exam to test minimum competence.

At least 20 jurisdictions -- 18 states, the District of Columbia and one territory -- are exploring the idea of a uniform exam, said Erica Moeser, president of the National Conference of Bar Examiners in Madison, Wis., a proponent of the uniform exam. Missouri could give the first one as early as 2010.

Delaware is not among states considering it.

Pamela Tikellis, chairwoman of the Delaware Board of Bar Examiners, an arm of the Delaware Supreme Court, said the board is not anticipating any changes in 2010.

"It's not something we're seriously considering," she said.

Others say it will never happen.

"The state is protective -- for the most obvious reasons," said Edward Rock, a professor of business law and co-director of the Institute for Law & Economics at the University of Pennsylvania Law School.

Jana DiCosmo, a second-year student at Widener law school, who will soon have to decide in which state to take the exam, is aware of Delaware's exclusivity.

"Delaware is very concerned about keeping a small bar," DiCosmo said. "It helps the lawyers already practicing."

Law students like DiCosmo would be the chief beneficiaries of a national exam.

Recent law graduates, some burdened with huge debt loads, are facing a historically tight job market, Moeser said. Often students have to decide where they're going to take the bar before they even have a job offer, she said.

"One of the top three questions among law students is: 'Where should I sit for the bar?' " said Micah Yarbrough, director of bar programs at Widener University School of Law in Wilmington. "Now, it's a hard question to deal with because of the job issue."

A uniform exam also could address concerns about bias against historically under-represented groups in admission to the bar, he said.

"Right now, there is some concern the present system acts to preclude certain people being able to practice," Yarbrough said. "Having this uniform concept sort of levels the playing field in that everyone is tested on a common body of law across the states and there's no surprises."

What's more, there's an overall push in the legal profession to allow lawyers to practice in multiple jurisdictions as advances in technology and globalization have led to greater mobility, Moeser said.

Still, legal scholars said Delaware is not likely to roll out the welcome mat anytime soon because of its lucrative preeminence in corporate law. For more than 100 years, Delaware has carefully cultivated its preeminence in incorporations by tweaking its constitution, laws and courts. Today, Delaware is home to about 63 percent of Fortune 500 companies and more than half of the companies on the New York Stock Exchange.

Not only does the franchise fuel a thriving legal industry, it has also generated as much as one-third of the state's annual revenue for decades.

Some say Delaware's emphasis on quality in admitting lawyers to the bar has contributed to the state's international reputation as the so-called Tiffany's of corporate law. But critics charge that the "Delaware Way" has been to limit the profession to a select few to maintain the state's bragging rights.

"We're afraid if we have a national bar exam somebody in New Hampshire would want to practice in Delaware and that would make Delaware crazy," said Irving Morris, a retired Wilmington attorney who served on the state bar examiners board for 11 years.

Delaware has been administering bar exams since colonial times, said Dennis Siebold, a Wilmington lawyer who wrote the "Admission to the Bar" for the "The Delaware Bar in the Twentieth Century." Early tests were probably oral exams, he said. At the turn of the 20th century, there were boards of examiners in each county, according to Siebold's research. In 1931, the Supreme Court assumed responsibility for bar admissions and appointment of a single examiners board made up of members from all three counties, Siebold writes.

"Vested with sweeping authority over the registration of students of law, the board exercised its power to preserve the integrity of the Delaware bar by limiting admissions to what some called a 'small elect' of people whom it felt qualified by education, morality and temperament to enter the practice of law in Delaware," Siebold writes.

While the size of the bar has expanded substantially since 1950, Delaware's bar is still tiny, legal observers said. As of March, the number of people who are registered as members of the Delaware bar numbered 3,676. In 2008, 253 applicants took the bar examination, with 185 passing, according to the National Conference of Board Examiners statistics.

Defenders of Delaware said the small size of the bar has worked for the good of the state. One of the things that makes Delaware's legal community so preeminent is its civility, Rock said. He attributes it to the small bar. Litigation can be nasty, but Delaware lawyers know they'll have to deal with opposing attorneys outside the courtroom in social situations.

While retired Delaware Supreme Court Justice William T. Quillen said he believes Delaware will give a cool reception to a national exam, it's not to create an elect few.

"I think the traditional Delaware reaction will be negative because they want to control who will become lawyers, not because of exclusivity, but for qualitative reasons," he said.

Striving for uniformity

Even if Delaware were to move to a uniform exam, it wouldn't necessarily become any easier to be admitted. Applicants would still have to meet such requirements as "character" and "fitness," with states setting their own pass-fail lines. Each state would also determine how long it would accept the score after the applicant took the test.

Other state requirements would also have to be met.

But bar applicants would not have to repeat the grueling experience of a bar exam, which requires months of study.

States individually would have to iron out how to verify competency of local law, such as through continuing education or another test. Rules that govern bar admission to the individual jurisdictions would need to be revised. Most jurisdictions would need the blessing of their high court to adopt a uniform bar exam.

Other major legal markets are also uncommitted at this point, including the two states that give the most bar exams every year -- New York and California.

"It's not something we take lightly," said John McAlary, executive director of the New York State Board of Law Examiners, which administers tests to about 15,000 applicants each year, the largest number given by any jurisdiction. "We have to study it."

One of the major considerations is how to test on local state law, he said.

"I think it will start on a reasonably modest scale," Moeser said."But every other profession has gotten to complete uniformity. I don't know why law is at the end of the line."

But with students graduating with as much as $200,000 of debt, states like Delaware might not be able to hold out in the long term. Law school deans who are aware of the uniform bar exam movement are supportive, Moeser said.

"If the details could be worked out, it would be great for my students," said Yarbrough of Widener.

What's more, 22 jurisdictions, including Colorado, already are administering the three tests created and sold by the National Conference of Bar Examiners that would make up a uniform exam.

"The pieces are in place in Colorado. It would be a pretty simple matter to accept scores from other jurisdictions," said Alan Ogden, executive director of the Colorado Board of Law Examiners. And the fact that nine states have indicated an interest in participating in the next year or two, is a major advance, Moeser said.

"Most people would rather take a poke in the eye than take another bar exam," said Kellie Early, executive director of the Missouri Board of Law Examiners. "It's generally not a fun activity."

Additional Facts
BY THE NUMBERS

 

Ten year averages of those who passed the bar exams from 1999 through 2008. New York gives the most bar exams annually, followed by California. Delaware is important nationally because of its dominance in corporate law.

California: 48%

DELAWARE: 62%

Maryland: 66%

New Jersey: 69%

New York: 64%

Pennsylvania: 69%

National: 66%