Michael Gartner: THE BAR EXAM

A committee of the Iowa State Bar Association has proposed that Iowa change its rules so that graduates of the law schools at Drake and the University of Iowa be admitted to the practice of law in this state without taking the bar exam.

That is not a good idea.

The Supreme Court, which sets the rules, has been taking comments from lawyers and others, and it has set a public hearing for August 27. Twenty-three persons are scheduled to appear and comment, including the deans of the two law schools, Attorney General Tom Miller, former Attorney General Roxanne Conlin, a handful of judges and others who have strong feelings on the issue.

The Bar committee’s argument is as simple as it is flawed: If admitted upon graduation, the young lawyers would be able to start practicing immediately and begin paying off their college and law-school debts. The average four-and-a-half month delay between graduation and admission to the bar costs the would-be lawyer an average of $29,000 in lost income, the committee says.

And that four-and-a-half month retention of debt and loss of income keep young lawyers from hanging out their shingles in small towns, serving “historically underrepresented communities” or entering public service, the argument goes.

Really?

That seems a stretch.

You learn a lot in law school — I am a graduate of the law school at New York University — but you learn the broad brush-strokes, not the fine details. Mainly, though, you learn how to think. You learn how to look at an issue from all sides, take it apart and put it back together, consider how it fits into historical patterns, and ponder how it fits into society today. You learn some principles from famous cases and some basic truths from the Constitution — and then you learn that those principles change and those truths aren’t always basic.

The bar exam tests your grasp of these principles and truths — as they are interpreted today — but it’s also a test of your ability to think and analyze and look at an issue from all sides. It’s a test, in other words, to see if you have learned anything in law school.

For some, the answer is no. Nationwide, 83,986 persons took bar exams last year; 26,960 of them — 32% — flunked. In Iowa, 377 persons took the exam and 46 — 12% — flunked, according to the National Conference of Bar Examiners. According to the report prepared by the Iowa bar committee urging an end to the exam for Drake and U of I grads, 996 graduates of Drake and Iowa took the Iowa bar exam for the first time in the five years from 2008 through 2012, and 68 of those — 6.8% — flunked. The annual flunk rate for first-time takers was as high as 24% for Drake grads, as high as 15% for Iowa graduates.

So the exam does weed out the slow-learners.

Further, Iowa would keep the exam for graduates of other schools —for instance Yale or Harvard or Stanford or Columbia or the University of Chicago, which are ranked as the top five law schools in the nation. So it sets up a two-class system, which could discourage non-Drake and non-Iowa graduates from wanting to come here. And, without casting any aspersions, that might lower the quality of lawyers in the state. According to U.S. News and World Report, Iowa’s law school is ranked 27th among the 194 law schools in the country; Drake’s is ranked 113th.

There was a time — from 1873 until 1884 — when Iowa recognized this so-called diploma privilege, granting automatic bar admission to graduates of the in-state schools. Most states had similar rules. But most dropped the rule in the 1800s, according to a report from the staff of the Iowa Supreme Court, and today the privilege exists only in Wisconsin. What’s more, the American Bar Association opposes the practice.

So it boils down to this: Dropping the bar exam would be a nifty recruiting tool for Iowa’s two law schools, might keep out some very talented young lawyers from very good law schools elsewhere, and would increase the risk that when you hire a lawyer you might end up with a person who might better have been a steamfitter.

It’s not a good idea.

* * *

If the state’s legal establishment is truly worried about the debt law-school students pile up, there’s a simple solution: Cut a year out of the three-year curriculum. President Obama — a lawyer — has suggested it, and some law schools are trying variations of it.

Of course, that would mean laying off some professors and seeing a drop in revenue.

So scratch that idea.