Bar pass rates under scrutiny: Unaccredited law schools targeted in Sacramento

By Nancy McCarthy,
California Bar Journal

In the last 18 California bar exams, administered over nine years, just two graduates of the unaccredited Irvine University College of Law have passed the exam, neither on the first try. During the same time period, four from the People's College of Law in Los Angeles and 12 from Pacific West College of Law in Orange passed the bar exam.

Only nine graduates of the Southern California Institute of Law in Santa Barbara, accredited by the State Bar, passed during that time frame; 34 took the test at least once and more took it more than once. Most years, SCIL's pass rate for its Santa Barbara grads is zero.

Bar exam pass rates have declined steadily in recent years, both nationally and in California. According to the National Conference of Bar Examiners, 64 percent of would-be lawyers who took bar exams nationwide in 2004, the last year for which national statistics are available, passed. Some 28,110 people failed that year. In 2000, 65 percent passed and in 1995, the pass rate was 70 percent.

Besides raising law student anxiety, the decline has stirred debate about the bar exam and the quality of a law school education and has attracted interest in Sacramento.

In California, 48.2 percent passed the July general bar exam in 2004, 55.3 percent passed in 2000 and 59.4 percent in 1995. Gayle Murphy, the State Bar's senior executive for admissions, says law schools' "eventual pass rate" is a better yardstick to measure a student's chances of passing the bar exam. She pointed to a 2003 study that broke down eventual pass rates, over three attempts: 90 percent of graduates of ABA-approved law schools eventually pass, compared to 68 percent who attend California accredited schools and 58 percent for graduates of unaccredited schools.

"There's a law school for everyone here in California," Murphy said.

Indeed, in addition to ABA-approved schools, California accredits 20 schools that meet rigorous requirements, and another 11 unaccredited schools and nine correspondence schools are registered with the bar and overseen by the Department of Consumer Affairs. Graduates of all those school may sit for the bar exam in California, one of the few states that permit students from non-ABA approved schools to take its exam. And they can take it an unlimited number of times.

Murphy said the bar exam pass rate is not the sole criteria for choosing a school; students should look at the quality of the program, the faculty and administration and a school's finances to make sure it is on solid ground.

Historically, California has had "a very open process for taking the bar exam with minimal requirements and no limit on the number of times you can take it," said Dean Dennis, chair of the Committee of Bar Examiners. "That's the way California has opened itself up to many people to become a lawyer. The counter position is it's a very difficult test so you have to really prepare if you are going to pass it."

But Sen. Joe Dunn, D-Garden Grove, is taking a hard look at the bar exam pass rates and the quality of the legal education provided by unaccredited and correspondence law schools and recently introduced a bill to transfer oversight of those schools from the state Bureau of Consumer Affairs to the Committee of Bar Examiners. "I have been concerned for some time about whether in fact completely unaccredited law schools, including correspondence schools, contribute to some of the problems we see in the bar, like lawyers pushing the ethical edge on issues," Dunn said.

He said a higher percentage of complaints about attorney misconduct involves graduates of unaccredited schools. In addition, "When you talk to judges, they will tell you the quality of lawyering is substantially less than that from accredited schools."

At a hearing Dunn held last fall, representatives of unaccredited and correspondence schools testified they provide a good education, disclose their bar pass rates and offer a low-cost opportunity to people who otherwise would have little chance of earning a law degree.

But Dunn questions why California is the only state that permits prospective lawyers who graduate from unaccredited schools to sit for the bar exam. "Is California missing something or are the other 49 states missing something?" he asked. (Bar officials said a handful of states permit students to take their bar exams if they've been admitted in another U.S. or foreign jurisdiction.)

Dunn said it is premature to suggest shutting down unaccredited schools, but he hopes to unify the regulation of all California law schools not approved by the ABA.
Neither the State Bar nor the Committee of Bar Examiners has taken a position on the bill.

George Gliaudys, dean of the Irvine University College of Law took issue with what he said is "an assumption that registered schools are providing a below-par education to its students." In fact, he said, his school provides "the same course of study that everybody else does" and its students, mostly mid-career adults, must take the First-Year Law Students' Exam (baby bar) to continue beyond the first year of school.

Leonard Padilla, chairman of the University of Northern California Lorenzo Patino School of Law in Sacramento, denounced the Dunn bill as "an attempt to put us out of business." He said Lorenzo Patino, founded in 1982, serves many students who have no interest in becoming a lawyer but want a law degree to advance in their careers. Padilla, a bail bondsman and bounty hunter, said he attended California-accredited Lincoln Law School "to learn the difference between robbery and burglary." He took and failed the bar exam once, he said, "but I had no intention of ever practicing law."

Padilla called Lorenzo Patino a law school of last resort at the Dunn hearing last year, and said it accepts students who have been shown the door by other law schools, who he accused of ripping off law students by advertising their bar exam pass rates, accepting their tuition for two years and then expelling them.

Gliaudys, Padilla and other executives of schools not approved by the ABA say their institutions fill a niche and serve a population that can increase the diversity of the California bar. Many of their students live in a geographically isolated area or one without a nearby ABA-approved school. They often have a fulltime job and a family. Generally, the program is at night, takes four years and costs far less than an ABA school. The schools sometimes have more relaxed entrance standards, taking into consideration work experience as much as, or more than, college grades. Some take students without a college degree.

And some provide most of the lawyers in their local community. San Joaquin College of Law, for example, offers three-, four- and five-year programs at its Clovis campus, where 210 students are enrolled. Founded in 1939, the school is accredited by the State Bar and enjoys regional accreditation from the Western Association of Schools and Colleges, a step above bar accreditation. It has produced about 1,000 graduates, says Dean Jan Pearson, including the elected district attorneys of most of the surrounding counties, about 60 deputy district attorneys, 21 judges and administrative law judges and the chair of the California Water Resources Control Board.

Pearson said 28 percent of the lawyers practicing in the Fresno area got their law degree at San Joaquin, including 48 percent of the women lawyers in the Fresno area and 35 percent of the minority lawyers. The school's cumulative pass rate is 85.4 percent, she said.

"To me what's really exciting is San Joaquin started out making opportunities and it really did that and changed the face of the legal profession in Fresno."

Another school accredited by the Committee of Bar Examiners is the Southern California Institute of Law. Dean Stanislaus Pulle, who received his law degree at England's Kings College and attended Yale Law School, said SCIL's graduates register an eventual pass rate of 45 or 46 percent. However, statistics kept by the bar show a zero pass rate for all but five of the last 18 bar exams for the Santa Barbara graduates. The rates for the Ventura grads were modestly higher.

Pulle, who said he never took a bar exam, called the zeroes "very misleading" and attributed the low pass rates to a student population that is working fulltime, had lower grades in college and are paying for their legal education without student loans.

He also said the "format and content of the bar exam is different from the way law school is taught . . . I'm not saying it's unfair, I'm saying the bar pass rate is no yardstick to gauge the quality of education. I wish someone would really dispel that myth."

SCIL-Ventura grad Paul Hunt, who passed the bar exam on his sixth attempt, attributed his five failures to his writing style. "When I threw away all my bar stuff and did the same quality of test with a different writing style, lo and behold I passed," Hunt said. He called the bar exam "rather flawed" with a "slanted" grading system.

Hunt, 38, owns a mortgage business and hasn't decided whether to practice law. But he said the Southern California Institute of Law was an excellent choice for him because it offered "a solid legal education" with a faculty that wants students to succeed and offers plenty of help.

But Dunn is skeptical. "What you're doing is filling the legal ranks in California with lawyers, at least in theory, that don't rise to the level of quality you see in the other 49 states," he said. "Lawyers hold an awesome responsibility on behalf of their clients. Lawyer education should not be 'what the heck, why shouldn't there be a school for you.'"

Reprinted with permission from the California Bar Journal.

"BAR PASS RATES UNDER SCRUTINY": A RESPONSE

By Dean Kevin O'Connell

RE: California Bar Journal article by Nancy McCarthy (April 2006 edition, page one).

In a recent article by Nancy McCarthy, Senator Joe Dunn is quoted: "When you talk to judges, they will tell you the quality of lawyering is substantially less than that from accredited schools." This was said in support of a statement that graduates from unaccredited schools are less ethical than graduates from accredited schools.

Honestly, I have no idea where the good Senator from Garden Grove would obtain statements like that from any judge. In 1984, I passed the California Bar exam and have been practicing law as a litigation attorney ever since (as well as teaching at various law schools). I am currently involved in the defense of a double murder in the good city of Garden Grove. In all the years of practice, I have never had a judge ask me what law school I graduated from. I have never heard of a judge asking any attorney what law school she graduated from. Most judges would not ask what law school an attorney graduated from because of the possible bias that may be perceived from such an inquiry. In the double-murder case I am involved with, I have no idea what law school the four other defense attorneys or which school the District Attorney attended. It is irrelevant even if they did not go to law school. Attorneys in California are not required to graduate from law school to sit for the bar exam, the law still allows law office and judge chambers qualifications. In the double-murder case, the Deputy District Attorney assigned to the case is my adversary and the part of his background that is most relevant to me is his reputation. Not a reputation of how many convictions he has obtained, but, first, is he honest and fair and, second, does he have a good work ethic, i.e., does he work hard at his job. What school he went to will not have any bearing on whether or not he is honest and fair, or what his work ethic is. Why is the reputation of honesty and fairness in my adversary so important? Because I cannot work with someone who would lie and cheat -- I can only work against that kind of Attorney. As far as work ethic, well, you are only as good as your competition.

Gail Murphy, quoted in McCarthy's article, is correct when she states, "There's a law school for everyone here in California." Why should that not be the case? In 1993, I founded Pacific West College of Law, in the wealthiest half of the wealthiest state of the wealthiest country in the world. Providing education to others is a noble endeavor that should never be criticized. Senator Dunn's statement of "What the heck, why shouldn't there be a school for you" is an elitist point of view that only certain people should be privileged to learn the law. Shame on anyone who claims that a legal education or the right to take the California Bar exam should belong to some "elite" class of society. California is rich with a diverse group of citizens and therefore should be rich in a diverse group of attorneys.

I founded my law school for a variety of reasons. One of the reasons was a loss of experienced attorneys from the bench. I had perceived that attorneys were leaving the practice of law within a short time of passing the bar. Mature and seasoned attorneys were becoming rare and that would have a drastic affect on the candidates for judicial office (See "A critical shortage of Judges" in the same edition of the California Bar Journal, page 8). I perceived the reason for the great loss of attorneys to be from the fact that traditional law schools did not adequately prepare their students for the practice of law. Other attorneys I conferred with agreed with this perception. This is why Pacific West College of Law has a lot of classes concerning trial skills. I am not advocating that other schools be like Pacific West because not all attorneys litigate -- in fact, actuality very few do. California and the rest of the country deserve the service of attorneys that have been schooled in different ways because there is not a single perfect way to impart a legal education.

Pacific West College of Law is licensed to confer five different law degrees (BSL, MAL, J.D., LL.M. Tax and LL.M. Environmental). To gain approval for the licensing of these degrees, the programs had to be evaluated by our competitors. In other words, deans from other California accredited law schools had to review all of the documents concerning the program, visit the school, interview the faculty, review all of the files in the school and even count the number of books in the library. No other business in California is required to obtain the approval from its competitors prior to being able to be in business.

The article by Nancy McCarthy begs the question: "Why do law schools have different bar passage rates?" The answer to that question can be found in the answer to this question: "How does a law school improve its bar passage rates?" Most law schools use two different methods to improve their bar passage rates. Like most things in life, both methods have drawbacks.

The first method is to profile a student by race and gender. Statistics from the Committee of Bar Examiners have remained true in the last ten years that I have reviewed them -- the highest passage rate on the California bar is by White males fallowed somewhat closely by White females. The next category down is Asian males fallowed very closely by Asian females. There is a significant drop to the next class which is Hispanic males fallowed by Hispanic females and a considerable drop to African American males and African American females. In other words, admit as many White males as you can. Obviously, the study of law should be made available to more people than just White males.

The second method could be called "the cream will rise to the top" or "survival of the fittest." This is the strict curve in grading exams in law schools. In other words, let the competition between students remove all of the weak or doubtful candidates. For every "A" there must be an "F", for every "B" there must be a "D" and so on. The drawback on this method is more difficult to see. The problem is the lack of support that a student can receive from other students in law school. In other words, if student "A" helps fellow student "B" to learn anything, then student "A's" grade would go up and student "B's" grade would have to be lowered. The moral of this story is none of these people can trust another or help each other.

When I taught at Western State University in the mid 1980's, this theory was enhanced at faculty meetings by the repeated statement of "garbage in, garbage out." The obvious problem to these theories is that it establishes an "us verses them" attitude between students and faculty. I refuse to believe that this is the best way to impart a legal education. The majority of professors at Pacific West College of Law are practicing attorneys and teach the classes that they practice law in. My experience has taught me that I obtain the best results from this type of faculty (practicing attorneys rather than trained teachers) by telling them the one thing I expect from them -- "treat the students as if you are going to practice law with them someday." That simple statement establishes a partnership between faculty and students in which the professor must be very proactive to help a student, rather than a "sink-or- swim" attitude established by the "garbage in, garbage out" attitude.

In closing, law school educations are critical to the continued evolution of mankind and not limited to just a bar passage rate or some elitist group.

On Senator Dunn's Flawed Logic

By Steve Liosi, Esq.

"I have been concerned for some time about whether in fact completely unaccredited law schools, including correspondence schools, contribute to some of the problems we see in the bar, like lawyers pushing the ethical edge on issues." - Senator Joe Dunn

Absolutely absurd. Absurd to the point of tragic hyperbole. Does Senator Dunn actually think that ethics can be taught? His statement seems to imply as much, which makes me wonder what his true agenda is. Why the extreme focus on unaccredited law schools? Are unaccredited law schools purveyors of unethical legal practices. Are the following classes being taught in such schools? "How to Embezzle Client Finds, Travel to Vegas, Bet With Your Client's Money, then Redeposit the Money Without Your Client Being the Wiser 101"? "How to Run a Prostitution Ring Right Out of Your Law Office 101"? "How to Commit Crimes of Moral Turpitude 101"?

To suggest that ABA law schools are the only schools teaching moral fiber is preposterous. Does Senator really believe that had the Enron principals attended Stanford Law that the pension funds of good people would not have been emptied? Most of us find (or do not find) our ethical compasses by the third grade.

"When you talk to judges, they will tell you the quality of lawyering is substantially less than that from accredited schools." - Senator Joe Dunn

Another ludicrous statement. Any lawyer will tell you, myself included, that you do not graduate law school knowing how to practice law. And in the Ivory Tower law schools, students spend time studying legal theory, not legal practice. In fact, it is the lesser schools that actually make the effort to educate their students on legal practice. (See Pacific West College of Law.) Any good paralegal knows more about legal practice than any newly-minted Stanford law school graduate.

But Dunn questions why California is the only state that permits prospective lawyers who graduate from unaccredited schools to sit for the bar exam. "Is California missing something or are the other 49 states missing something?" he asked.

The California legal education has a system in place that affords the less fortunate the opportunity to practice law. What the other 49 states choose to do is irrelevant. (In New York, no matter where you are driving, in the city or out in the country, you cannot turn right on a red light.) Apparently, California wants anyone and everyone to have the chance to realize their dream of becoming an attorney. That the 49 other states do not make such a consideration is beside the point. That most never realize that dream is a different story, a different article.

"What you're doing is filling the legal ranks in California with lawyers, at least in theory, that don't rise to the level of quality you see in the other 49 states." - Senator Joe Dunn

Such a statement makes me wonder how Mr. Dunn would explain away the dismal pass rate on California's Attorney Examination. After all, California is the only state that permits prospective lawyers who graduate from unaccredited schools to sit for the bar exam, right Mr. Dunn? Yet, attorneys from states that don't have such schools perform poorly on our state's Attorney Exam. Typically, more than half fail.

In addition to publishing this journal, Steve Liosi is the Program Director of BarPerfect (www.barperfect.com). Mr. Liosi can be reached by calling (562) 536-9476 or e-mailing steve@clsj1994.com.

By Dean Stanislaus Pulle, Ph.D.

An analysis of the pass rates of State Bar only accredited law schools from 1986 through 2005 will show a majority of CA-accredited law schools have on one or more occasions scored either a zero bar pass rate or a pass rate significantly lower than the State Bar pass rate. Only a quarter of all graduates from California-only accredited law schools pass the general bar on their first attempt. In subsequent attempts the pass rates hover around the 10% mark.

At our own Institute, we had two of two first-timers pass the Bar Examination in Santa Barbara in 2003, a 100% pass rate. All six of six graduating students of our class of 1997 passed the Bar examination. Yet, when dealing with small numbers, this is a meaningless statistic. Even within a larger pool, Bar pass rates do not bear a rational relationship to the quality of legal education in small evening law schools.

However, in the public mind General Bar pass rates have become the yardstick for measuring the quality of legal education in State Bar accredited law schools in particular.

According to a recent compilation put out by one of the many correspondence law schools, in the past five years distance-learning schools have a 35.5% Bar Pass rate, while CA-accredited law schools score a 27.3% pass rate.

But, as C.C. Colton warned, "Falsehood is never so successful as when she baits her hook with truth."

Any attempt at making a meaningful correlation between Bar pass rates and law school instruction yield propositions that are difficult to verify, hard to place in context and generally impossible to evaluate.

Supreme Court Justice Ruth Bader Ginsburg, herself a former law professor at Rutgers and Columbia Universities, noted that legal education "loses something vital when students learn in isolation, even if they can engage in virtual interaction with their peers and teachers."

Law schools must be careful that their curricula and teaching methodology not succumb to the siren song of improving Bar pass rates, at the risk of becoming virtual Bar-mill schools, where students are "taught to the Bar."

Several CA-only accredited law schools have witnessed graduates with high law school GPA's fail the Bar examination. Others whom we least expected to pass, because of a combination of English as a Second Language (ESL) drawback, low GPA's, weak pre-law background, and older age, have succeeded on their first or subsequent attempts.

Most recently Dean Kathleen Sullivan of Stanford Law School, with an undergraduate degree from Cornell and a law degree from Harvard University, and a noted academic luminary, crashed and burned on her first attempt at the California Bar Examination. Assuming her essay writing skills were brilliant, she may have failed to adequately prepare for the rigorous MBEs.

What explains this?

The format, structure, content, and grading of law school and State-Bar examinations are different enough to defy reliable comparisons.

FORMAT

Law School examinations are typically essay-only type questions as opposed to the State Bar examination, which is divided into three sections: essay, multiple-choice, and performance, of which the essay portion alone accounts for thirty-five percent (35%) of the total score.

STRUCTURE

Law School essay examinations examine on a single subject basis, with each subject being tested on a different date, and with a minimum of two questions per subject. Thus, a less-than stellar performance on one question may be compensated for by an outstanding performance on the other, since it is the average score that counts.

A further crucial difference, is, unlike in the general bar examination, law school students know in advance exactly in what subject and its parameters they will be tested when they arrive on the day of the examination.

CONTENT

Law school examinations are usually far more comprehensive and exhaustive than state bar examinations.

In two-semester courses, students are examined through mid-term and finals. In some law schools, such as in our Institute, to secure a passing grade, policy rationales and jurisprudential underpinnings are demanded in support of the applicable rules.

GRADING & EXAMINATION PERFORMANCE

Law school students have the benefit of being graded by the person who instructed the subject and wrote the question.

Moreover, under state bar rules of accreditation, the grades of law school instructors teaching the same group of students must bear a reasonable correlation to one another. Thus, raw grades are accordingly adjusted. There is nothing comparable with respect to state bar examinations.

Over the course of a four-year legal education students are essay tested as many as fifty times, involving over a score of instructors.

STUDENT POOL PROFILE

Evening law students are mainly in the 35-55 range. Nearly all of them are working adults, many have families, and some are single parents. None of them attending law schools with state bar-only accreditation are entitled to federally-funded tuition loans, not all of them have bachelor's degrees, many have marginal GPAs and, among those admitted with LSAT scores, the scores average in the bottom third or less. In addition, roughly a third of those admitted have English as their second language.

When contrasted with ABA-accredited law schools these matrices reflect polar opposites. And yet, even among third-tier ABA-law schools like Golden Gate, Western State, Southwestern, Whittier, and LaVerne, the pass rates are on a downward spiral averaging less than 40%.

CONCLUSION

Following the historically low results of the 2000 general Bar examination, former State Bar senior executive officer for admissions Jerome Braun put it well, when he said: "Each person who takes the exam is unique. Each performs individually... It's a question of preparation."

Our experience confirms Braun's point. In the twenty-year history of our Institute we have had four "special" students take the bar examination. These are students with less than 60-units of pre-law college credit and some with no college education at all. All four of our "special" students passed the bar examination.

In an article titled "Pericles & The Plumber," Justice Cardozo wrote law professors must emulate Pericles and, like an architect, instruct to the grand design of the law. The practitioner is the Plumber whose job it is to use the bricks and mortar of facts in each client profile and construct the case using any one of the plans he learned in law school.

Unfortunately, with falling Bar pass rates, deans of evening law schools are tempted to engineer their curricula, and adjust instructional pedagogy in ways opaque enough to make them indistinguishable from correspondence schools. To succumb to this is to acknowledge the law school mission as a fraud, training plumbers rather than thinkers.

What can law schools do to improve Bar pass rates? Some ABA law schools have experienced a phenomenon of downward Bar pass rates not unlike CA-only accredited law schools. In an attempt to stem this slide, the ABA has now changed its rules. Students will be allowed some credit for "law school-sponsored Bar-Review courses." Currently, the rules of CA-bar accreditation forbid this. Perhaps it's time to revisit this rule.

Stanislaus Pulle is the Founder and Dean of Law at Southern California Institute of Law, which has campuses in Santa Barbara and Ventura.