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i had no idea about "slots", this explains a lot. this will never change til someone who is a credible witness cooperates in bring a class action lawsuit on behalf of all repeat takers because there are millions that bar must pay back for making people re-take the exam because of the "slots" practice, which is clearly illegal!

Fred Raynolds

Raising the Bar:
Even Top Lawyers
Fail California Exam

Former Stanford Law Dean,
Becomes Latest Victim;
A Mayor Tries Four Times
December 5, 2005; Page A1

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan.

Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist.

The California bar exam has created misery for thousands of aspiring and practicing lawyers. Former California Gov. Jerry Brown passed on his second try, while former Gov. Pete Wilson needed four attempts. The recently elected mayor of Los Angeles, Antonio R. Villaraigosa, never did pass the bar after failing four times.

But it's unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. "She is a rock star," says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. "Practically every lawyer in the U.S. knows who Kathleen Sullivan is." If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. "The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it."

Ms. Sullivan, 50 years old, did not return phone and email messages seeking comment. Her firm said she wasn't reachable over the weekend because she was at a remote location.

Mr. Urquhart says he does not know Ms. Sullivan's score, but knows she spent little time preparing because she was inundated with work for the firm and Stanford Law School, where she now runs the school's constitutional law center. Ms. Sullivan plans to take the test again, according to Mr. Urquhart. "She'll prepare more next time," he says. "My advice to her is that she should look at 15 bar questions and 15 sample, perfect answers. That is all she'll need to pass."

The California test, by all accounts, is tough. It lasts three days, as compared with two or 2½-day exams in most states. Only one state -- Delaware -- has a higher minimum passing score. According to the National Conference of Bar Examiners, just 44% of those taking the California bar in 2004 passed the exam, the lowest percentage in the country, versus a national average of 64%.

Like many professions, lawyers are regulated by the states, and nearly every state requires passage of a bar exam for attorneys to practice law. Some states grant reciprocity to out-of-state lawyers. California does not; to be licensed in the state, one must pass the California bar exam. This July's version of the California test aimed at lawyers licensed in other states -- like Ms. Sullivan -- claimed an unusually high percentage of victims.

The two-day test, which is identical to the longer exam but omits a long multiple-choice section, had just a 28% passage rate in July, an astoundingly low figure that state bar officials are at a loss to explain. Out-of-state lawyers can take the full three-day exam if they choose.

Critics say the test is capricious, unreliable and a poor measure of future lawyering skills. Some also complain that California's system serves to protect the state's lawyers by excluding competition from out-of-state attorneys. There has been some loosening of the rules. California adopted rules last year permitting certain classes of lawyers to practice in the state without having to take the bar.

Gayle Murphy, the senior executive for admissions for the State Bar of California, says that the purpose of the bar exam is to protect the public, not to restrain competition. Great efforts are taken to make sure exam grading is fair, including use of multiple graders, she says. The exam includes six essays and two written performance tests. Each written part is assigned a separate grader. Test-takers who are close to the passing line are assigned nine more graders, so a borderline exam will have as many as 17 graders.

One reason for California's high failure rate, Ms. Murphy says, is that graduates of unaccredited and correspondence law schools are allowed in California to take the test. California's pass rate for ABA-approved schools is in line with those of other states, Ms. Murphy says. She says a possible reason for failures by practicing lawyers is that they simply don't have enough time to put in the requisite studying hours. Attending a premier law school doesn't guarantee success: former Gov. Wilson got his law degree from Berkeley, while former Gov. Brown went to Yale.

Aundrea Newsome, an attorney in Hermosa Beach, Calif., who passed the July test, limited her prep time to two months, but she worked eight to 10 hours a day, every day, during that stretch. "That is standard," she says. "You make a deal with the devil and give up two months of your life to pass."

Ms. Newsome, who graduated from the University of Southern California Law School in May, says preparing for the exam requires studying so many different legal fields, including such arcane topics as 18th-century criminal common law, that practical knowledge or even mastery of several legal subjects is not enough.

Robert Pfister, who was already licensed in Indiana, Connecticut and New York, also found the experience grueling. After the first morning of the exam, "you feel like your hand will fall off from writing so much," says Mr. Pfister, an associate with Simpson Thacher & Bartlett LLP who passed the July exam in California. "After the second day, you just want to go home and sleep. But then you have to come back for a third day."

Mr. Pfister, who handles securities-fraud cases and had been practicing law for about four years before taking the California bar, recalls one question where he was asked to parse the law that would apply to a disabled child who was seeking to move to a housing complex. "You can be the greatest personal-injury lawyer in the country, or mergers and acquisitions lawyer," he says. "But the stuff they give you is often some area of law you haven't dealt with."

Former Gov. Wilson describes his need to take the bar exam four times as "frustrating." He blames his difficulties on his penmanship, which he says was not messy, but very slow. "To put it in the simplest terms, if I had not learned to type, I would never have passed it," says Mr. Wilson.

A spokesman for former Gov. Brown, who is currently mayor of Oakland, Calif., says several of his classmates from Yale also failed the exam, some of whom went on to be judges and prominent lawyers.

A native of New York City, Ms. Sullivan has an undergraduate degree from Cornell University and a law degree from Harvard University. She taught at both Stanford and Harvard before becoming dean of Stanford's law school in 1999. The author of a leading constitutional-law casebook, Ms. Sullivan has argued several cases before the Supreme Court. Earlier this spring, the nation's highest court ruled in favor of one of her clients, a California winegrowers' group, striking down state laws that restricted direct sales from vineyards to consumers.

Last year, after announcing she would step down from her Stanford post, Ms. Sullivan joined the Silicon Valley office of Quinn Emanuel Urquhart to head a new appellate practice.

Ms. Sullivan is unlikely to need as many attempts as Maxcy Dean Filer, who may hold the California bar endurance record, having passed in 1991 after 47 unsuccessful tries. The Compton, Calif., man, who says he'll practice any kind of law that "comes through the door -- except probate and bankruptcy," says he always tried to psych himself up before taking the test by repeating, "I didn't fail the bar, the bar failed me."

The California State Bar employs a QUOTA SYSTEM favorable to ABA-acc. CALIFORNIA law schools

The California State Bar Association treats bar passage as a process of "filling slots." I personally do not appreciate or like the slot I'm destined to compete in. I am discriminated against since my "slot" has such a low passage rate, which never changes over the years. I am not being given a fair chance compared to other applicants who are in the “more favorable slot" with five times my passage potential since their passage percentage is allowed to be five times higher than my passage percentage.

I am in the "slot" with the next-to-lowest passage percentage, consisting of applicants who attended ABA-accredited schools OUTSIDE of California. In addition, this category also contains practicing attorneys from outside jurisdictions, who have practiced for at least four years and are taking the California bar. I am pitted against these already practicing attorneys, making this "slot" even more difficult for a non-practicing applicant. These slots and their respective bar passage percentages are pre-determined before the submissions are graded, and each applicant’s exam answers are pitted against the other applicants in their same “slot,” NOT the entire bar-taking group, which would be equitable.

The ABA-accredited California law school students, however, are not up against practicing attorneys, and are given a 69% rate of passage, compared to my measly 15.6%. And, out of respect, don't even bother mentioning the "slot" that the non-ABA schools are in! (They're really doomed.) This never changes from year to year and hasn't for the past 10 years. This is no more than a glorified quota system! And since quotas are illegal, why is it okay for the California State Bar to continue to operate a quota system? (A state regulation is invalid if federally preempted or if it conflicts w/federal law.)

Further, the California state bar is discriminating against interstate commerce for local economic benefit. The California state bar is discriminating against out-of-state-competition by allowing only a miniscule percentage of out-of-state bar repeaters to pass [15.6%] compared to a much larger percentage of in-state first-time bar takers’ to pass [69%]. The reason why California first-timers are given such a huge advantage is because only the scores of student first-timers, who take and pass the bar within the first year of graduation, are reported to their respective law schools. Because of this, there is a push for the State Bar Association to pass more first time California law school applicants so that the California law school ratings increase. (The California state bar could care less about increasing ratings of out-of-state law schools.) By increasing California law school ratings, this entices more out-of-state pre-law students to apply to the California law schools, as well as encourages California pre-law students to not take their funds to law schools in other states, but rather, apply to and attend California law schools.

The Bar's quota system, however, does not further an important, non-economic state interest because the very same out-of-state applicants it discriminates against would very likely be fabulous attorneys; and there ARE reasonable, non-discriminatory alternatives (ie., get rid of the classifications and make the test equal across the board, which would be fair to all (ie., “a fair playing field”). This must be so, whether the applicant is: in-state, out-of-state, first-time taker, repeater, ABA-accredited, or non-ABA-accredited. Even if the goal is to keep the number of members of the California bar down, achieve this goal, fairly. I believe that my out-of-state ABA-accredited law school enhanced money is as green as a California ABA-accredited law school student’s, and as such, should buy me the same percentage of bar passage.

Thus, the California State Bar “quota passage system” unduly burdens Interstate Commerce. And, since there is no legitimate non-economic California benefit by unfairly locking out, out-of-state competition, or non-ABA-accredited competition, or Repeaters by use of this quota system, the State Bar Association is improperly regulating bar passage. Their procedure should be deemed invalid (under the commerce clause and 14th A.) and changed immediately.

woods green

this is not a good news to the cliant.the careless lawyer shoud be out the field as soon as posible.

Jeff Swanson

California's Bar exam process is in crisis. The theft and resulting multi-pronged and very lengthy lawsuit is a symptom and not the problem.

The overriding issue is lack of control. The California Bar Examiners have lost total control of their own process, and as a result, now they are losing the needed respect and trust of the public.

The California Legislature and the Court system must now step in to salvage the crippled system. The first issue is who is actually qualified to sit for the exam, and the second issue is who is qualified to grade it.

The world is now watching. California must look themselves in the mirror and face the reality that unless the system has a solid foundation of legitimate candidates and legitimate graders, all the clever algebraic manipulations known to man will not suffice to cover the cracks in a broken system.

If California did not have a two tiered grading system, there would be no use for math magic. The bar exam should not have ABA upperclassmen and non-ABA lower-classmen. If California had a safe, secure, equal system, I feel our laughter at the Plaintiff and the clumsy grader would be aimed at where it is better served, late night comedu routines.


Eric Goldman

Hmm...what's worse...losing the exams while at a bar or the apparent plan of a bar examiner to drink and drive? Eric.

Justice Scalia

He/She was probably drunk while grading them too...

No surprise, we have heard of people spotting bar examiners grading
on the BART (subway), at Candlestick Park watching a Giants game, and
many other ridiculous places.

The Bar needs a housecleaning, that's for sure.

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