December 06, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith R. Fisher, Christina Houston

Professional Responsibility

Declining Bar Passage Rates Raise Questions

By Keith R. Fisher

The pass rate for the July 2018 California bar exam was a mere 40.7%, down from 49.57% the year before.  New York, another jurisdiction with a reputedly difficult exam, had a pass rate of 63%, down from 68% the preceding year.  The pass rate for the February 2018 California Bar exam notoriously hit an all-time law; only 27.3% of those who sat for the exam passed it.  (This is a blended rate:  The pass rate for first-time takers was 39% and only 23% for retakers). 

Bar passage rates are lower this year in many places.  Connecticut’s was 55%, down from 70% in 2017,  and several other states had summer 2018 bar passage rates below 60% (e.g., Alaska, Arizona, Maryland, Nevada, and New Jersey).  Nationwide, according to the National Conference of Bar Examiners, the multistate exam pass rate is the lowest in over 30 years.  

It may be premature to characterize this evidence as a “trend,” but in the absence of any evidence that bar exams have become more difficult, perhaps it is time, as the profession hurtles toward a Uniform Bar Examination with nationwide applicability (over half the states plus D.C. have adopted the UBE), to consider some fundamental questions.  What do the various bar exams test, and are they a reliable metric of success in the legal profession?  Are the people now sitting for the bar less qualified than those of yesteryear (and if so, why)?  Are perverse economic incentives causing too many law schools to admit students with slim chances of passing the bar?

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.