The High Cost of Lowering the Bar

Abstract

State bar licensing authorities and law schools have been debating whether the passing score on the bar exam is set at the right level or should be lowered. Much of the debate centers on generalizations without evidence about the effect that changes to the bar exam may have.

We present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among lawyers. Using a large dataset drawn from publicly available California State Bar records, our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbar-ments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.

Although our measures of bar performance have only modest predictive power of subsequent discipline, we project that lowering the passing score would result in the admission of attorneys with a substantially higher probabil-ity of bar discipline over the course of their careers. But we admit that our anal-ysis is limited due to the imperfect data available to the public. And we do not infer a causal relationship between low bar scores and high discipline rates. For a precise calculation, we call on state licensing authorities to use their in-ternal records on bar scores and discipline outcomes to determine the likely impact of changes to the passing score.

Keywords: Bar Exam, California, State Bar, Occupational Licensing, Attorney Discipline, Legal Education, Data

JEL Classification: J44, K00, K1, K10, K2, K23, K4, K49, Y1, Y10