Academic journal article St. John's Law Review

A Rebuttal to Kinsler's and to Anderson and Muller's Studies on the Purported Relationship between Bar Passage Rates and Attorney Discipline

Academic journal article St. John's Law Review

A Rebuttal to Kinsler's and to Anderson and Muller's Studies on the Purported Relationship between Bar Passage Rates and Attorney Discipline

Article excerpt


Because of the escalating cost of legal education and the recent decline in bar passage rates among ABA approved law schools, some analysts have reasonably attempted to determine the social costs of legal education.1 Many have attempted to place the blame on segments of the legal education marketplace.2 The complicated relationships among the policies of providing more access to justice, increasing minority representation in the bar, and protecting the public from shoddy law practice have recently inflamed academic debate. In the rush for assessing blame, some analysts have published empirically flawed reports that have received a great deal of media and academic attention, but have not received serious methodological analysis. The problem is that merely believing that one variable, such as LSAT scores, causes results, such as lower bar examination scores and/or increased ethical violations, is very different than empirically proving that professed cause and effect relationship. This article responds to two of these studies: one conducted by Professor Kinsler in Is Bar Exam Failure a Harbinger of Professional Discipline?3 and another conducted by Professors Anderson and Muller in The High Cost of Lowering the Bar.4 These studies concluded that there is either a causal link and/or a correlation between par passage scores and the probability of state bar disciplinary rates. Both studies argue for more restrictive access to law schools or, alternatively, for more regulation of the legal stream leading to membership in the bar. Their data does not support their drastic remedies.

I. The Kinsler Study

Professor Kinsler's claim is simple: he states that a higher percentage of attorneys who failed the bar exam multiple times commit more ethical violations in their early careers than other attorneys.5 Because he concludes that multiple bar examination attorneys are a danger to the public, he proposes that states limit the number of bar examination attempts applicants can take.6

Although Kinsler details the careers of attorneys that he says prove his bar exam and ethical violation thesis, there is a glaring omission-Kinsler did not discuss a single case in which an attorney who took the bar exam multiple times was found to have violated a disciplinary rule early in his or her career involving any of the five skills he claims are tested on bar examinations. He failed to demonstrate any nexus between multiple bar exam failures and attorney disciplinary violations.

In addition, Kinsler fails to provide sufficient empirical data to support his proposition that multiple bar examination attorneys have a different pattern of disciplinary violations early in their careers. In fact, a Connecticut ethics study cited by Kinsler found that all attorneys who committed ethical violations, not just those who failed the bar exam, committed most ethical violations during what Kinsler terms "early" in their careers.7 In Connecticut, "the average length of time between admission and the filing of a grievance leading to a sanction was 10.74 years."8 Kinsler's logical leap in connecting the timing of multiple bar exam test taker discipline "early in their careers" to their lack of bar exam performance fails since almost all disciplinary cases for all attorneys occur during that same time frame.9

The most fatal flaw in Kinsler's argument and data is that he did not produce evidence to demonstrate the level of correlation between multiple bar attempts and ethical violations. To illustrate his empirical failure, consider the following facts: from February 2012 to February 2018, men tended to have a lower "first-time" and a lower "repeater" (multiple bar exam) passage rate than women did on the California Bar Examination.10 The problem is that even though there is a correlation between gender and the frequency of ethical violations, the correlation is so low that it does not warrant dramatic changes to the bar examination. …

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