Maureen Milford has penned an excellent article on the Delaware Bar Exam in today’s News-Journal, and it’s must reading for people seeking to understand the Delaware Way. The article discusses a move towards a national bar exam, and strong opposition to this notion from Delaware’s legal community.
Delaware’s Bar Exam is notoriously one of the most difficult in the nation, if not the most difficult, to pass. Defenders argue that it protects the reputation and excellence of Delaware’s legal community while critics argue that it artificially keeps the number of practitioners low, hence ensuring their financial well-being.
I say, let’s take a look at this using an accepted regulatory yardstick that is applied to virtually every licensing/professional/occupational board in Delaware. This is the yardstick used by the Delaware General Assembly’s Joint Sunset Committee in determining proper legislative authority to be granted to said board(s):
The least amount of regulation necessary to ensure the public’s well-being.
The theory here is that licensing boards should be created only when there is a demonstrated (as opposed to hypothetical) need to regulate in order to protect the public. And licensure is perhaps the most essential part of this process.
While nobody (at least not me) questions whether a Board of Bar Examiners should exist, I must point out that many professions have sought licensure and board status precisely as a means of keeping others out of the profession to ensure financial well-being, to raise the ‘respectability factor’ on a profession, and/or to be eligible for insurance reimbursement, among other reasons.
Inevitably, the General Assembly, being comprised of pandering whores, often ignores this criteria. There is now a Board of Dietetics and Nutrition which was created solely to provide a professional imprimatur on said department at the University of Delaware. To highlight the hypocrisy behind the UD proponents, they argued that only licensees should be allowed to provide nutritional advice and maintained that people w/o sufficient education who work at health food stores represented a hypothetical public danger. Of course, when the ‘special interests’ from the health food stores complained, the UD proponents ‘grandfathered’ them in in exchange for their support. Which raises the obvious question: What bleeping public purpose does the Board of Dietetics and Nutrition serve? But I digress.
My point, and I have one, is that all too often these boards artificially keep professions closed. The Board of Examiners in Dentistry used to administer a clinical exam using only the reactions of three examiners to determine whether someone passed. Until two examiners failed someone for diametrically-opposite reasons, which was impossible, and only served to demonstrate the completely arbitrary nature of the process. As a result, in the 1980’s, it was exceedingly difficult to be licensed in Delaware unless you were the son or relative of a practicing dentist.
The argument that the Dental Board made is basically the same one that the Bar Examiners are making: That it is more important to have an absolute assurance of quality than a relative assurance of quality.
On the surface that might make sense, but it ignores two basic questions:
1. How can you empirically demonstrate that so-called ‘higher’ standards lead to better care and better dentists, for that matter? The same applies to attorneys. How does the very high bar set by the Bar empirically demonstrate that “Delaware Barristers Do It Better Without Briefs”?
The Dental Board used to cite the relatively small number of disciplinary actions taken against dentists as proof. What the Board neglected to mention was that disciplinary actions, most stemming from complaints from consumers, went through–the Dental Board. This was the Delaware Way at its worst. One dentist calling another and saying, “Charlie, 16 crazy women claim that you may have inadvertently fondled their breasts. There’s nothing to that, is there? Didn’t think so. Thanks.”
In Milford’s article, I found two quotes particularly telling:
“Vested with sweeping authority over the registration of students of law, the board exercised its power to preserve the integrity of the Delaware bar by limiting admissions to what some called a ‘small elect’ of people whom it felt qualified by education, morality and temperament to enter the practice of law in Delaware,” (Dennis) Siebold writes.
And Bill Quillen, a former state Supreme Court justice, writes:
“I think the traditional Delaware reaction (against a national standardized bar exam) will be negative because they want to control who will become lawyers, not because of exclusivity, but for qualitative reasons,” he said.
To which I ask these solons of jurisprudence to provide empirical evidence demonstrating that the public would be at risk if such an exam came to Delaware. Even if there was some way of measuring the better from the best (if there is, please provide it), is it to the public’s advantage to limit choices to a select few? Isn’t that what the marketplace is for? And who is to say that testing well on a fiendishly-difficult exam makes one more likely to be a better attorney? And does this hold across every branch of the law? If there is an empirical cause/effect, make it public. You’re attorneys. Provide the evidence.
You may ask, but El Somnambulo, what ulterior motive could these attorneys possibly have in keeping people out of Delaware?
Well, you’ve all heard of the law of supply and demand, haven’t you? A ‘glut’ of attorneys likely means that many won’t survive. Since when, other than for big banks and insurance companies, is it government’s place to determine which businesses succeed and which fail? This criteria, economic advantage, is one that the Joint Sunset Committee sets out as inappropriate when determining the need for legislation.
2. How can you demonstrate that keeping people out of the profession is in the best interest of the public?
Keeping professional membership artificially low virtually guarantees that people requiring certain legal services won’t receive them, or they will have to pay higher fees to receive them.
Years ago, the Board of Optometry sought to keep practitioners from aligning with Sears or Pearle Vision Centers because they claimed that the profit motive would override professional considerations. They made these claims based on hypotheticals. (a) There was no empirical evidence demonstrating that this had happened in jurisdictions permitting such alliances; (b) the Board already had disciplinary authority in the event that a professional violated their professional obligations and (c) EVERY BLEEPING OPTOMETRIST in the State at the time sold eyeglasses, etc. at their office, or in a store right next to their office.
The real reason that they opposed this expansion of the practice was purely economic–they would lose business and they might have to lower prices to compete.
Whether by intent or not, this is precisely what keeping the number of attorneys and availability of legal services low does. I think that it’s wrong.
OK, barristers. I know that there are lots of you out there. Please argue, using facts, why Delaware’s exclusionary examination is essential in protecting the citizens of this state.
Your billable hours start–now!