Mandatory Bar Exam Retake
by Craig Eley
by Craig Eley
It was difficult finding Brian Dubin's telephone number.
"During the two years I've been on this committee, I've had my number unlisted," he said. "I even had it deleted from all the legal directories. I knew a lot of people would want to call me when word got out, and it wouldn't be to thank me."
The "word" Dubin referred to, is the recently released news that all Colorado attorneys will be required to re-take the bar exam every 10 years. Dubin was the chair of the Proficiency in the Profession Committee of the Colorado Supreme Court and the main proponent of the plan in hearings before the court. (Or make that "hearing" before the court, since there was only one.)
Responding to criticism that the bar had very little notice of the hearing, Dubin bristled. "I posted the notice on the Supreme Court Clerk's bulletin board 10 days before the hearing, as the law requires," he said. "How much notice do people need, anyway? Remember, we're talking about lawyers here."
Apparently, lawyers needed more notice than they got. Of the five witnesses who testified at the hearing, held at 4 p.m. the day after Thanksgiving, none were opposed to the proposal. Consequently, the court has announced that it will formally approve the measure on April 1.
The new rule provides that every Colorado lawyer will have to take a bar examination every 10 years.
Veteran attorneys will sit alongside those who are taking the exam for the first time, and will take the identical test as the legal aspirants.
According to Dubin, there are many reasons for the new rule. "The committee was concerned about the growing specialization of the practice," he explained. "For example, experienced attorneys were refusing to take pro bono cases, using the excuse that they no longer knew anything about county court evictions, traffic violations or consumer law. That's going to change!"
The committee also received information about specialization from representatives of the nation's legal malpractice insurance carriers. They claimed that the "inability of today's attorney to be able to discern those legal problems of a client, which may fall outside his or her area of specialty, is a major reason for the high cost of insurance." For example, an attorney in Colorado Springs was handling the estate of a deceased businessman, and completely missed the statute of limitations for the heirs to exercise their antediluvian rights to the incorporeal hereditaments of short-term indentured debentures of the deceased's company's writ of manumission. Obviously, this cost the heirs millions, and resulted in a $200 increase in the malpractice premium of every Colorado attorney. All for the lack of a basic understanding of securities law.
The new rule will only help these problems, Dubin argues, if the bar exam itself is beefed up. "The Court has agreed with the committee's recommendation that many new subjects should appear on the bar exam.
These include water law, intellectual property law, child custody issues, bankruptcy, securities law and federal consumer protection laws (there being little in the way of state consumer protection laws)."
Despite these changes, the length of the bar exam will not change-- it will still last two days. The added subjects will not be on every exam, but because the possibility exists, attorneys will have to know these areas of the law, or risk failing.
An attorney who fails the exam will, like everyone else, not be able to re-take it until it is given again in six months. During the interim, the attorney will be automatically suspended from the practice of law, and will have to send certified letters to that effect to all of the firm's clients.
It should not be a surprise that the initial impetus for this rule came from young lawyers. Their advancement into law firms' upper echelons were perceived as being slowed by older lawyers who, in Dubin's words, "are clogging the arteries of the legal profession."
"Let's face it, these old guys would not be able to get into the law schools that their young associates are graduating from," Dubin continued. "Name partners in most firms don't even know what ERISA is. They're mired back in the Code of Hammurabi and the Statute of Frauds. They themselves are living violations of the Rule Against Perpetuities."
The committee predicts that a significant number of older attorneys, when faced with the prospect of taking (and perhaps failing) a bar exam, will quietly retire. "We're tired of the John Moyes of the world pulling down the big bucks when all they can really still do competently is play the piano and swig chianti at their Italian villas," Dubin raged. "If John wants to take a stab at the exam, and risk having to send 'I flunked' letters to all his firm's clients, why, he's welcome to do so."
The Proficiency in the Profession Committee did not get everything it wanted from the Supremes. The court declined to apply the new rule to judges, reasoning thatjudges have no such duty, unlike lawyers, to keep up with the law to advise clients. Besides, if a judge doesn't know the law, an attorney will be happy to tell him or her, and at no charge.
To avoid a crush of attorneys running (or, as Dubin says, "hobbling") to take the exam, the new rule will be phased in. Every lawyer who was admitted in a year ending with 1, for example, will take the exam in 2001. Those admitted in a year ending in 2 will take it in 2002, and so on. If you were admitted in 1949, 1959, 1969, 1979, 1989 or 1999, you are one of the lucky ones who will have 10 more years to sock money into your 401(k) before your possible ouster from the profession.
Dubin acknowledges that his work as chair of the Proficiency in the Profession Committee has not endeared him to attorneys. He also realizes that this will make it almost impossible for him, a young lawyer himself, to find a job. This matters little to him, however, as he has decided (perhaps of necessity) that he really isn't interested in practicing law. Instead, he is going to devote his life to the noble profession of education, where he feels he can really make a difference.
He admits that eyebrows will probably be raised when he opens the "Brian Dubin Famous Lawyers' Bar Refresher School" in October.
Any parting words from the man who has turned the legal profession upside down? "Yeah," Dubin grins, "tell John to give me a call. I might have a job for him."
A Docket committee member saw this robed protester in front of the courts last month. When asked why, this person said, "Judges need more money and the legislature won't approve it. How about judges having a contingency fee? Or a bonus for clearing dockets early or sitting on a three-judge panel? Or letting them preside over marriages again?"