Federal Court looking into loCal bar exam

Manuel Quilichini,

Lawyer

A shot across the bow

Recently, the U.S. District Court for the District of Puerto Rico made a shot across the bow of the Puerto Rico Supreme Court. It did not make headlines, but it should have.

Any person who wishes to practice law on our island must pass the Bar examination, also known as “la reválida,” in Spanish. This is not much different from many other professions, since doctors, certified public accountants, and others must pass an exam to demonstrate they are knowledgeable and fit to practice the profession they have chosen. What sets the law bar examination apart is its consistency: for the past 40 years, less than 40% of applicants pass the bar exam. To add insult to injury, if you fail the bar exam 6 times, you cannot take it again. Ever.

Last year, one of those who failed to pass the exam filed suit in the Federal District Court, challenging the constitutionality of the 6-time limit and of the bar exam itself, alleging that the procedure used to select and grade the questions is arbitrary and capricious. Most attorneys in Puerto Rico would agree that the bar exam is flawed, and they are in very good company because all three law schools on the island have leveled similar charges against the bar examination procedure.

The Board of Bar Examiners (the Board), charged with preparing the bar exam, provides a yearly orientation to future attorneys on how the exam is prepared and graded. Many technical terms are used, and convoluted processes are explained briefly, supporting the conclusion that the bar exam is fair. However, the fact remains that of the 419 applicants who sat for the bar exam in 2019, only 132 passed. Applicants did not fare better in 2020 or 2021. The failure rate affects students of all 3 law schools, which face losing their accreditation if they cannot show that 75% of their students pass the bar exam within 2 years of their graduation. Where does the problem lie, and what can be done to fix it? The law schools point fingers at the Board, who points fingers back at the law schools. Nothing comes out of the finger-pointing except hundreds of persons failing the bar exam after having endured 3 to 5 years of formal education and assuming tens of thousands of dollars in tuition debt. Puerto Rico has been and remains the jurisdiction with the lowest bar passing rate in all the United States for the past decade, if not longer.

Some of us hoped that the lawsuit would bring about much-needed change, but it was dismissed because it was not timely filed. U.S. District Judge Francisco Besosa, the presiding judge in the case, had no choice but to reluctantly reject the plaintiff’s claim, but in doing so, he took the Board to task.

Judge Besosa stated that “… the abysmal failure rates associated with the PR bar examination suggests that reform is warranted,” recognizing that the problem is getting “progressively worse.” He also recognized the sacrifices of those who graduate from law school just to “falter at the precipice of success.” The judge then came to an astonishing, but not entirely surprising, conclusion: the Board has not been forthcoming with information needed to identify the root problem or to shed light on possible solutions.

For years, law schools have requested the Board to provide them with information that will help identify if the current curriculum needs to be reformed or the teaching methodology changed. The law schools have clamored for reform on how the bar exam is prepared and graded, just to be ignored by the Board. In 2021, pressured by the potential loss of accreditation, the Supreme Court convened a commission to evaluate the bar examination, but its focus was on what the law schools were teaching and how. A priori, the Supreme Court was already laying blame on the schools and took no steps to review its internal processes. Again, the finger-pointing game continues to the detriment of thousands of law students in Puerto Rico.

In calling for true transparency and cooperation between the Supreme Court and the law schools, Judge Besosa stated that the “failure to reform a defective examination is a disservice to current and prospective members of the bar, and to the legal profession itself.” I dare add that it is a disservice to society because it is depriving it of new blood in a profession that is essential to maintain an orderly society. More attorneys are leaving the profession than those coming into it. In a few years, there will not be enough attorneys to protect our citizens’ civil rights, to prosecute nor defend criminals, to counsel individuals and businesses in what is right.

It is time that all the stakeholders, starting with the Supreme Court, adopt a policy of transparency which has been lacking in our third branch of government. Only through cooperation will the impeding debacle of our legal system can be avoided.

The law schools have clamored for reform on how the bar exam is prepared and graded, just to be ignored by the Board.