By Jamie Russo
On October 10, 2024, the California Supreme Court declined to adopt the State Bar’s proposed alternative pathway to licensure, the Portfolio Bar Examination (PBE). The PBE’s supervised practice model would have enabled graduates of accredited law schools to become licensed attorneys without taking the two-day bar exam. [29:1 CRLR 125]
The California Supreme Court cited a lack of statutory authority, fairness, validity, reliability, ethical, and practical issues. First, the court noted current sections of the Business and Professions Code that fail to give the court authority to admit applicants to the practice of law based on the PBE. For example, current law requires that applicants pass the general bar examination. Additionally, current law forbids the use of different examination pathways that depend upon how they obtain their legal education. While the PBE would only be offered to graduates of accredited law schools, individuals who pass the bar exam can become licensed without attending an accredited law school. Thus, the PBE would violate current laws.
Next, the court illustrated practical issues involved in the PBE. For example, some supervisors may influence applicants’ work product more than other supervisors. Some supervisors may allow applicants to use templates for their work product, while other supervisors may not. Because the PBE requires that applicants work closely with supervisors to create a portfolio of the applicant’s work product, varying levels of supervisor involvement may unfairly benefit certain applicants and hurt others.
Accordingly, the court doubted the reliability of work product portfolios to assess applicants’ competence. Unlike exam questions containing relevant and irrelevant facts or laws familiar to a grading commission, a portfolio of real-world work products is based on facts and issues unfamiliar to the grading commission. If an applicant fails to identify a crucial fact or legal issue in their portfolio work product, the grading commission is unlikely to be able to recognize the applicant’s oversight. Consequently, the court found that the PBE could allow applicants who fall below the minimum competency level to become licensed to practice law.
Aside from rejecting the PBE, the court adopted the Bar’s recommendations to develop a California-specific bar exam. Finally, the court acknowledged the Committee of Bar Examiners (CBE) role in implementing changes to the bar exam. As part of the Bar, CBE is responsible for determining the bar exam’s format, scope, topics, content, questions, and grading process, subject to review and approval by the Supreme Court.
On October 11, 2024, CBE met to discuss committee business. CBE briefly mentioned the Supreme Court’s rejection of the PBE and expressed its intention to thoroughly discuss the order during its December 2024 meeting. Until then, CBE will focus primarily on preparing for the 2025 California Bar Examination changes.