California’s bar exam is an “an embarrassment” to the state, a judge ruled on Wednesday, saying the exam is “designed to be seen as a tool” to “assess the competence of the state’s bar.”
The California Bar Exam was introduced by then-Gov.
Arnold Schwarzenegger in 2005 to help state attorneys and judges assess the competency of their bar, which currently lacks a set of standards to determine if bar members are competent to practice law.
But some bar members say the exam’s emphasis on “determining competence” has been an unfair and misleading use of the bar’s resources.
In a scathing dissent, Judge Jeffrey B. Leopold said the exam “should not be used to assess the competence” of the California Bar, noting that it has been used to determine whether bar members should be fired or suspended.
Leopold, a San Francisco Superior Court judge, said that the exam was designed to evaluate bar members “in a way that will be seen by others as objective, objective, and objective-looking,” but that its objective criteria “are not necessarily objective.”
In a written opinion, Leoplow also said that “by the time a candidate’s bar credentials have been challenged in a court proceeding, the examination is likely to have been substantially completed, and the candidates’ bar credentials will have been determined.”
Leopland’s opinion came after a hearing in which three lawyers, including attorney David L. Crain, challenged the constitutionality of the test as it applies to the California State Bar.
“I think it is clear that the test is designed to be used by the State Bar to assess competence, not to evaluate the competence itself,” Crain said.
“To me, that is an embarrassment,” Craine said, noting the bar exam’s reliance on a subjective test and the requirement that all judges must pass the bar test.
Crain said the state bar exam “is a tool that the Legislature has used to score judges” who serve in the state attorney general’s office.
The California State Senate has not approved legislation to repeal the bar examination.
The state Assembly is considering a bill that would require judges to pass the exam before they can be appointed as bar examiners.
California Attorney General Xavier Becerra (D) has said the bar examiner is a “highly-trained and qualified person” and has said it has not been abused in any way.
The bar exam has been a major source of controversy, particularly in California’s Central Valley, where it has led to legal battles between state attorneys general and the state of California.
In August, Becerras predecessor as governor, Gavin Newsom (D), issued an order requiring the state board of bar exam to reconsider its decision not to scrap the exam.