Three years ago Sen. Miriam Defensor Santiago urged the Supreme Court to abolish the Bar examinations as a prerequisite for practicing law in the Philippines because "passing the Bar examinations is a matter of chance and luck" and "is just one index of legal competence."
Under Article VIII of the 1987 Constitution, the Supreme Court conducts the Bar examinations every year. The Constitution grants it the power to promulgate rules governing admission to the practice of law.
Sen. Santiago proposed the taking of a National Law School Aptitude Test (NLSAT) and a one-year legal internship as pre-requisites for admission in the study and practice of law. She stated that the NLSAT will better evaluate the verbal, writing, analytical proficiency, and reading comprehension skills of prospective law students. The NLSAT will be similar to the National Medical Admission Test (NMAT) for aspiring medicine students.
She claimed that the Bar exams is not the best gauge of one’s aptitude to practice law because it fails to test the skills needed in the legal profession and that it does not focus on the full spectrum of legal knowledge.
She cited a study entitled "Survey of the Legal Profession" by former UP College of Law Dean Merlin Magallona and lawyer Manuel Flores Bonifacio which showed that a sizable number of lawyers think the Bar examinations is not a good index of legal competence for the following reasons:
1. Passing the Bar is not an absolute guarantee of successful practice of law.
2. The Bar examinations is a test of memory and not of competence.
3. Examinees are expected to know everything at one time.
4. Passing the Bar is a matter of chance and luck.
5. The Bar examination is just one index of legal competence, and other factors should be considered.
6. Actual practice of law is the best index of legal competence.
She cited Bar examination statistics which showed that of the more than 5,000 law graduates who take the Bar each year, only 20 percent to 30 percent examinees actually pass the Bar.
She added that it any testing should be done for admission to the practice of law, aspiring students should take it before they enter law school and not after graduation.
The one-year legal internship program, on the other hand, will enable aspiring lawyers to have the practical education, skills, and knowledge necessary to represent clients, she said.
In 2005, US Prof. D. J. Solove wrote (www.concurringopinions.com) that the US Bar Exam should be abolished because it "prevented mobility among lawyers, making it cumbersome and time consuming to move to different states". He added that it did not test actual law used in legal practice, but esoteric legal rules, many of which were obsolete, and most of which were of absolutely no value to a practicing attorney. In short, he claimed that the Bar Exam was an "unproductive waste of time".
According to Prof. Solove, the Bar Exam is as a way for states to restrain competition among lawyers.
He suggested that in lieu of the Bar Exam, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers, he said.
He addred the following arguments against the Bar Exam:
“1. It doesn't test on the kinds of skills a good lawyer should have.
2. It often tests on obsolete legal rules.
3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.
4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.
5. The Bar often weeds out people who don't have the money to take an expensive legal education.
6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?
7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.
8. Nobody really uses the rules as formulated on the Bar Exam.
9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it’s much easier to make it past one Bar Exam than through three years of law school.”
In 2004, American blogger Scheherazade Fowler, wrote with passion and desperation, thus:
“1) Abolish the bar exam. It’s nothing more than ridiculous hazing. We all know that nobody remembers anything they learn for the bar exam, that the things everyone learns for the bar exam aren’t the law anywhere except for some fictitious “Multistate” jurisdiction that doesn’t conform to any actual place, and that the bar exam tests only one’s ability to outwit a particularly devious multiple choice testing service and/or a temperamental and unpredictable group of bitter essay graders. It has nothing whatsoever to do with functional mastery of subject areas, with compassion, judgment, or preparation to help clients. It instead serves the following functions:
A) it enriches Bar/Bri, and perhaps a few lesser-known bar prep services, as well as the authors and graders of the exam.
B) It empowers the bullies at the Board of Bar Overseers, who hassle and sneer at any nontraditional applicants, or people have life experience or pasts that might have given them wisdom or direction prior to entering the career of law.
C) It keeps bright, qualified, ambitious, energetic young applicants off the market and in misery from May through August, without letting their energy, enthusiasm, brains, or knowledge benefit the profession, and without letting them learn any practical skills at all. Instead, they get sick to their stomachs and devote their days to memorizing the difference, according to the strict Multistate Bar Examiner Rules, between a springing executory interest in land and a shifting executory interest in land.
D) It keeps bright, qualified, ambitious, energetic applicants in limbo from July through late October, wondering whether they’ll get the nod or whether they’ll instead have to repeat the misery. This benefits nobody, not the students, not the legal profession, and not the clients or the existing pool of lawyers.
There might be some good reasons that something like the bar exam was conceived. Maybe it was meant to be a means of testing basic competency in certain subject areas. That’s a sensible function. It seems to me that if a degree from an accredited law school doesn’t serve that function we as a profession might think about looking at the core curriculum of these accredited law schools instead of inventing a ridiculous test. Or we might test core competencies in subject areas and let people take those tests following a semester or year of study of the subject matter—when it’s likely that such knowledge has been learned in a way it might actually be retained. Demanding that people shovel huge amounts of obscure knowledge covering twenty or thirty subjects into their heads for a one-time test is almost a sure-fire way to minimize retention. This seems to undercut the stated goal of minimum mastery of a subject area. Or maybe the unstated goal of the bar exam is less noble: maybe the bar wants to keep these new lawyers off the market a little longer. There are still better ways we could do that. We could at least require them to apprentice to us for slave wages, like the medical profession requires of its residents. That would be more intellectually honest than pretending we are asking them to prove themselves when we’re just stalling. Or we could require them to do pro bono work, so that their talents and energy would perhaps be of service to human beings in the world and could provide them with useful skills, and would still keep them out of our hair for six months or so before we’d have to compete with them on the merits. But instead we ask them to learn obscure nuances that aren’t even the law in any jurisdiction, and that we all expect them to forget the day after they have taken the exam. This, to me, is the cruelest and most senseless act of hazing that the legal profession engages in. There are many alternatives to the bar exam, all better than the current system. The fact that we don’t change it is an indictment of the profession—our blind conservatism, our fear of change, our fear of young minds, I don’t know what. If the purpose of the bar exam is to keep the young graduates out of the profession, shame on us. If it is to require them to attain useful practical knowledge, let’s get real. Do you remember anything you learned for the bar? I don’t. Why do we make people do it?
2) If I had some money, and I were in charge of a big law firm, I would absolutely do the following two things. I would immediately abolish my summer associate program, and with the seven or eight hundred thousand dollars or more that I would save on salaries and lunch tabs, etc. over the course of a summer, I would set up a shop in India, or Romania, or perhaps even Ireland if the exchange rates were decent. And there I would set up a nice document review, research, and writing shop. Why on earth would I pay inexperienced people $2500 a week to do work that I could have done for a fraction of the cost, by well-educated, intelligent, English-speaking talent—talent that can work all night long and get me an answer in the morning because of the wonders of time zone differences. There’s not any kind of imperative that research, writing, and document review take place on site; a .pdf and a Westlaw password are pretty transportable. As head honcho at BIGLAW, I am aware that only a tiny fragment of my associates are going to last more than three or four years—neither they nor I have any illusions that this charming courtship will really lead to a long-term commitment. Why on earth should I take on that overhead? Why would I wine and dine these people who are, essentially, extremely expensive resources that are hardly irreplaceable. No, I’d eliminate the summer associateship and instead invest in smart folks overseas who can do more work, year round, at a fraction of the price. Like these guys are doing. Expect it.
To be honest, if I ran BIGLAW I’d have some grave doubts about whether I was meeting my fiduciary duties to my clients if part of the overhead of my firm were these lavish summers. And if you’re a client, why on EARTH are you paying fees that let your law firm take law students out to $100 lunches? Why are you paying for fountains and town cars and tickets to baseball games? How does this help your shareholders? If your law firm is profligate with its money, that means you are paying that firm too much. Invest in the firm that is thinking about how to bring value to you. I expect in the future that value is going to be offshore. Legal research, writing, and document review can and will move to smart folks who can do it for less money. If I ran a law firm, I’d be leading that trend. Those who will resist will couch their resistance in terms of “prestige” and “reputation” and wave their hands around saying “you don’t know what you’re getting if you farm out this kind of work.” These appeals to an ill-defined notion of “quality” will work perhaps for a little while, but ultimately are doomed, because the truth is that a lot of the work young lawyers do isn’t rocket science, and even if it were, talent is not the exclusive province of three or four New York law firms. It just isn’t. Knowing this, I would want to be the first “prestigious” law firm brand to exploit a worldwide talent pool and an extraordinary wage differential. That firm will be positioned to make great profits in the near term, and to be nimble enough to compete when savvy clients demand truly competitive rates.
3) I don’t think I fully understand the connotations of the word “profession” when people say that “Law is a Profession.” It appears to be used to imply something noble, exclusive, honorable, and dignified. That’s cool. I agree that law is a profession in that way. We’re all working to help sort out the consequences of human decision making, and the social consequences and procedures around decisions that are challenged. That’s a noble goal, and all (or most) of us doing it are doing something highly worthwhile. It is service in the best sense. But sometimes I hear the term “professional” used as a means of bullying someone into conformity, a way of expressing discomfort with informality or stylistic or aesthetic differences. Like the article on law blogs that suggested that it might be okay for a lawyer to blog about the hobby of sailing, but that it might not be professional to blog about an interest in NASCAR. I think that is a hijacking of the term “professional.” All of us, if we’re pursuing the highest good of the law, in a way that is courteous and thoughtful and earnest, are “professionals” paving a noble road. The style a person brings to that endeavour, the way he or she dresses or speaks while doing it, that’s not appropriate fodder for attack. To the extent some people in our profession use the idea of a “profession” as an excuse for conformity or a silencer of innovation or honest expression, I think that is wrong.
4) We should be more ashamed of ourselves. I am a capitalist at heart, and I don’t believe in government-induced salary caps, but I do think that social mores are powerful and that greed is ugly and shameful. I think there should be a real sense of social shame if you are earning more than 10 times more than the lowest-paid person in your office. Maybe that multiple isn’t right—maybe it should be 8 times, or maybe it should be 15 times, I haven’t thought through the multiple. But there should be a point at which people are just ashamed to look their assistants in the eyes, or the guy driving their cab or painting their house. Ashamed to look the court clerk in the eyes. I think many people in the legal profession are past that trigger point, whatever it is. Do we lawyers really think 10 minutes of our time is six, eight, twelve, forty times more valuable than 10 minutes of a fellow human being’s time? If we do, we should be ashamed of ourselves. And if we don’t we shouldn’t bill people as though it were.
5) Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm. That’s a clear, measurable, statistic that I argue is relevant to the measure of the success of a firm and the attorneys within it. What if having lawyers with intact families were part of the measure of the prestige of a law firm?”
(see: http://thenonbillablehour.typepad.com/nonbillable_hour/2004/06/five_by_five_sh.html).
What is your view?
By:
Atty. Manuel J. Laserna Jr.
