Bar wants tougher ethics test, but not too tough

An effort to boost the passing score required on a nationally administered ethics exam was defeated by a closely divided State Bar Board of Governors last month after opponents expressed concern it could hurt minority students, force all students to focus on the minutiae of rules and would do nothing to enhance future lawyers’ character.

Instead, just a day after a board committee had approved the change, the board sent the whole issue back to the Committee of Bar Examiners and asked it to consider raising the passing score slightly, study the potential impact of such a change or eliminate the exam entirely as a requirement in California.

The Multistate Professional Responsibility Examination (MPRE) is administered in 52 jurisdictions and tests students’ knowledge of the ABA Model Rules of Professional Responsibility and its Model Rules of Judicial Conduct. It does not test students about the California rules, but one question on the general bar exam does. Students must pass the MPRE in order to become a lawyer in California.

The committee had proposed raising the passing score from a scaled score of 79 to a scaled score of 100. That translates into providing correct answers to five more questions than is now required, or getting it right on two-thirds of the 50 questions.

Braun

“The committee,” said Jerome Braun, the bar’s director of admissions, “believes professional responsibility is a field that requires great emphasis and those who wish to be lawyers should be very familiar with the rules — only the highest level should be acceptable.”

The proposal was circulated for public comment and drew mixed support. Some favored a scaled score of 100, others supported a higher score than 79, but not 100, and others were opposed. The Committee of Bar Examiners concluded that “an increase of the magnitude recommended will have the effect of bringing greater focus on issues of professional responsibility . . . The committee does not believe that increasing the required MPRE score will produce better lawyers nor necessarily more ethical ones. But it will require that all who seek admission in California have an increased knowledge of the rules that govern their professional activities, and it seems reasonable to expect that the increased knowledge level . . . will ultimately increase the protection of consumers of legal services in California.”

Cohran

But Pepperdine Law School professor Robert F. Cochran Jr., a 20-year teacher of legal ethics, called the proposed change counterproductive and extreme and said “it provides salt water for thirst.”

Cochran claimed raising the required scaled score would result in a 50 percent failure rate and added that while the change would make life harder for most students, it would particularly affect minority students, who often have difficulty with standardized testing.  Because the exam is administered in the middle of the semester, it affects students’ regular exams. And its cost — $52 per test and $250 for a preparation course — hurts students who already are burdened by the cost of law school.

“But the devil is in the details,” Cochran said. “A higher passing score would require students to focus on the details of the Model Rules and that’s where the differences are in the states.” He added that the rules set a minimum standard, and “to the extent we focus on minimum standards, it comes at the expense of higher ideals.”

But several members of the board of governors felt that a more stringent requirement would emphasize the importance of ethics to students, who often treat the MPRE like a driver’s license test and don’t take it seriously.

“I’m not convinced that raising the bar to two-thirds is hard at all,” said San Francisco governor Rod McLeod. “People who have what it takes will get through the process.” As for the financial burden, he said, “That’s life.”

He agreed with public member Jan Green, who took issue with the impact of the change on minority students. “We seem to stereotype minorities,” Green said. “It’s a cop-out.”

Added Jim Scharf of Santa Clara County: “Raising the pass score can send a message that this topic is just as important as torts or civil procedure.”

Diaz

But AP Diaz, the California Young Lawyers Association representative, said changing the passing score will do nothing to build character or produce better lawyers. He pointed out that the bar’s chief trial counsel told a board committee that some attorneys who have been disciplined for misconduct “probably got a high score on the MPRE.”

“Character formation is not achieved by requiring people to get five more correct answers on an exam,” Diaz said. “It’s something we learn in our homes and from people we associate with. If the goal is character formation, it will be achieved by other means.”

An amendment to raise the scaled score to 85 rather than 100 went down to an 11-7 defeat. The proposed scaled score of 100 lost by a 10-8 margin.

After the vote, Cochran said leaving the status quo intact means ethics instructors can “continue to focus on character rather than teaching a class that focuses on the minutiae of a set of rules that don’t even apply in California.”

In other action, the board:

• Asked the Committee of Bar Examiners to develop a policy to permit accommodation for religious holidays that fall during the bar exam.
• Agreed to a Supreme Court request that the bar submit an amicus brief in a case about whether public interest legal aid offices must register with the bar.