Guest Column

What started as first a practical problem then turned into a moral panic for the Oregon State Bar, a quasi-private, quasi-governmental authority that regulates admission and regulation of lawyers, is now becoming a problem for the state and most importantly, their clients.

The bar’s efforts were most recently documented in a July 7 editorial in The Bulletin and then a disapproving follow-up by a Rocky Goodell, a Bend lawyer licensed in Oregon and California.

In full disclosure I have been practicing law for 40 years since being admitted in 1981. Working almost exclusively in criminal law, I was chief deputy district attorney in Bend in the ’90s, as well as similar jobs in other Oregon counties, before becoming the district attorney in Astoria for 25 years. Although I had been working in a DA’s office for 6 years before taking the bar exam, I narrowly flunked my first try, then learning the one question (out of two dozen) that caused me to fail was “criminal law.” I studied harder and passed the bar six months later, and even went on to be recruited to write and grade the criminal question about 15 years later.

Over the years, between 55% and 75% of those taking the bar passed it. Some of Oregon’s most prominent politicians have repeatedly flunked the bar. It is not an intelligence test or even a test of legal acumen That is why — like medicine — we call it the “practice of law.”

Last year the Oregon bar did something remarkably detrimental to both their clients and their members; in the face of COVID-19, they simply threw up their hands and decided anyone — anywhere in the U.S. — who graduated from a law school approved by the American Bar Association would be granted admission to the bar, no exam needed. These “2020 specials” will have several disadvantages; most states will not let them apply without what is called “multistate bar exam” passing grades.

In the long term, the employability of many of these new lawyers is at risk. Since an average of about 40% of applicants flunk, in 2020 they are all “lawyers.” I’m sure there are at least 60% to 70% of those who will make adequate to great lawyers. But if I was still employing lawyers, I’d hesitate at the lack of the vetting of a 2020 graduate, and I suspect more clients may look for someone admitted in 2019 instead. But I’m no longer practicing more than part time, and mostly pro bono.

To make things worse, The Bulletin approvingly tells us that the bar is experimenting with a new program as a permanent alternative to the dreaded bar exam; one would be a different class plan which proves skills in research, oral argument, and teamwork. The other would be an apprentice program requiring 1,000 to 1,500 hours of supervised internship.

Both ideas have great merit, but in addition to, not in place of, a bar exam. The stated goal, is of course, to achieve greater “equity.” At what point do you hold all people with “doctor of jurisprudence” at the end of their title an equal need for competence?

The Bulletin favored these proposals, saying they would mitigate a process that “can be unfair to some students who can’t devote the time to study for it full-time and creates racial disparities.” In what world would it be fair to say that because of their melanin levels, some lawyers don’t really have (or, more importantly, are presumed unable) to achieve as much, presumably creating a two-tier system for lawyers who are unconditionally qualified and those that are not.

Under the existing system, the percentage of minority judges in Oregon far outstrips the percentage of minority lawyers in the state. Isn’t that what Dr. Martin Luther King Jr. always sought? A measure of the content of character, not the color of skin?

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Joshua Marquis was chief deputy district attorney in Bend from 1990-94 and appointed, then elected, as district attorney in Astoria from 1994 through 2018.

(2) comments

Smedley Doright

I have a dream that one day my four little children will be judged not by the content of their character, but by the color of their skin.

King's rolling over in his grave.

Skittish

I have read Bulletin for many decades. I typically read the editorials as they can provide additional information and different ways of thinking. Sometimes they confirm my perspective and other times they change my perspective. I have often disagreed with the conclusions but at least I knew why and did not feel the need to complain when they did not agree with my point of view. However, since the last transfer of ownership, it now seems that the level of analysis has taken a noticeable decrease. It now seems that the reader ship must supply the bulk of the meaningful opinions.

I see that the subtitle to the paper is "empowering our community". Given the low quality of editorials, if they truly believe they are empowering our community, they must perceive our community as very stupid. So perhaps we should change the byline to "thought contagion", "disempowering those who think", "education with an agenda", "nadir of intellect", "epitome of dilettante", etc. So what is the purpose of paying for a subscription where I now feel that the readers are supplying the main value of the local paper?

It appears to be lost on the editorial board that the main value of testing is to provide the bare minimum of assurances that practitioners have some minimal capability. Testing is not meant to indicate excellence, and does not prove excellence. However, those students who pursue excellence should be able to pass the bar, and those students who have a sense of entitlement are less likely to pass the bar. The idea that black people do not have the time to study is ridiculous. Black people have as many hours in the day as white people and get paid the same amount per hour. In fact black people have lower standards to get into University and more grants and financial assistance is available to them. If anything they have more time and more resources to pursue academic excellence. Given the advantages that they have if they are still not yet capable of achieving minimal competence, then they should not to be lawyers. Melanin content does not overcome incompetence. Are we to now associate melanin content with coddling and lower expectations? I believe that is unfair to those people with darker skin tone who actually have competence and work hard.

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