State lowers passing grade for bar exam

HELENA — Attorneys can now pass the Montana state bar exam with a score that is slightly lower than it was in May, in an effort to deal with decreasing passage rates because of changes made to the exam in 2013 while also aligning the test with other states.

In January, Paul Kirgis, dean of the Alexander Blewett III School of Law at the University of Montana, proposed lowering the exam score, saying the percentage of the school’s graduates passing the bar on the first try dropped from 88 percent before 2013 to below 70 percent in the past two years.

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The state Supreme Court discussed the issue June 7, and ordered the bar exam score to be moved from 270 to 266 on a 400-point scale. It had taken public comment prior to the decision.

Kirgis described it as a “modest” change.

“It aligns Montana with states like New York, Iowa and Kansas and puts us in the middle of our region, with Wyoming and Washington at 270 and North Dakota and Minnesota at 260,” he stated.

In 2013, the state made “significant” changes to its exam, Kirgis said. Four essay questions about Montana law were dropped and the passing score was raised from 260 to 270. Officials agreed to the change at the time motivated by the fact that most other jurisdictions required higher scores, and feared a low passing score might result in unqualified lawyers coming to Montana to practice.

He said Idaho has had a 280 score, but with review that allowed a number of candidates with lower scores to be admitted; it is now considering lowering its score and eliminating the review.

He said setting the score at 266 rather than 270 was expected to increase the overall passing rate by about 5 percentage points and called it a “modest change.”

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Kirgis said he has heard little negative reaction to the change.

“Most of the bar members I speak with are skeptical of the validity of a standardized test as a measure of competence to practice law,” he said via email.

The Montana state bar did not return a call seeking comment. However, on May 18 it filed comments with the state Supreme Court in which it said its board of trustees could not reach a consensus.

They noted that the passage rate of the exam dropped from 86 percent in July 2013 to 67 percent in February 2015. About half of those taking the Montana exam graduated from the University of Montana law school.

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They noted the primary difference in the bar exam was increased weight of multiple-choice questions, elimination of the four one-hour essay questions specific to Montana law and the increased passing score.

They also noted that no one at a March 9 meeting presented evidence that a bar exam score is correlated with problems related to “character and fitness, disciplinary problems, or malpractice.”

The bar noted that each jurisdiction determines its passing score. The passing score was 260 until 2013 with “no untoward effects,” the bar wrote.

This allows an applicant who has achieved a Montana passing score on the exam while taking the examination in another jurisdiction to transfer that score to Montana within three years of taking the bar examination. It is also retroactive for applicants who achieved that score during the past three years.

Since July 2013, 29 bar examinees have scored 266-269 and 17 of those have retaken the exam with a score of 270 or better. Of the 12 who have not passed, five are UM graduates and seven are not.

Great Falls attorney Alexander “Zander” Blewett III, for whom the UM law school is named, said the exam is now more focused nationwide rather than Montana based.

He supported lowering the scores.

“It makes good sense,” said Blewett, of the law firm of Hoyt & Blewett PLLC. “We don’t want kids to be perfectly able to practice law in Montana and not pass because they are taking a national exam.”

He said lowering the passing score from 270 to 266 was not a big jump.

“It’s very minor, but there are two to three kids who could have been lawyers because of this number,” Blewett said.

“You don’t want to have graduates getting done with law school and for some reason not get this extra couple of points,” he said.

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Montana Supreme Court Chief Justice Mike McGrath said he supported lowering the score to 260, but was all right with 266, which he said was similar to adjacent states.

He said several years ago Montana approved the Uniform Bar Exam process, which had its questions designed by a national testing entity.

He said upon review it seemed the testing score was too high.

“Now we’re making an adjustment and reducing the score,” he said, adding most people in the public comment thought the score should be lowered.

He added it was not a perfect measurement.

Among those opposed to lowering the exam score was attorney Erin Erickson of Missoula, who wrote the Supreme Court on April 28 and said that easing the requirements will “only serve to diminish the quality of lawyering in this state and I believe it will greatly affect the professional relations and collegiality of the Montana Bar.”

She said she feared the bar will be compromised and “flooded with out of state lawyers who do not value the atmosphere of professionalism and respect that our bar has developed.”

“I have been practicing nearly 13 years in this state and I greatly value the quality and ethical standards of our bar,” Erickson, who is with the law firm of Bohyer, Erickson, Beaudette and Tranel PC, wrote. “I believe the citizens of our state are afforded a high level of protection and representation by our current bar members, in large part due to the admission requirements. Therefore, I strongly oppose any amendments to the current requirements.”

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Kirgis said until the early 1980s, Montana had a “diploma privilege,” which meant that any graduate of the University of Montana School of Law did not have to sit for a bar exam.

He said many of the leaders of the Montana bar, including Sid Thomas, the current chief judge of the U.S. Court of Appeals for the 9th Circuit, never took a bar exam.

Kirgis said the bar is best understood as setting a baseline measure of the analytical ability needed to perform legal work.

He said there was no evidence that attorneys who scored between 260 and 270 for all those years were incapable lawyers.

“So I see little risk that adjusting the score to 266 will lead to the admission of ineffective lawyers,” he said.