This is a great idea, and also an illustration of how Commissions can push the envelope.
The Massachusetts Commission has proposed to the state Board of Bar Examiners that access to justice issues be added to the bar exam. Memo can be found here.
As the Memo puts it, after detailing the access crisis and the fact that more lawyers will, for labor market reasons, be involved in low and middle income practice:
As the Commission’s Mission Statement reflects, the Commission’s goal is to achieve equal justice for all persons in the Commonwealth, and it strives to accomplish this goal by providing and improving access to justice for those unable to afford full representation by counsel. An Access to Justice topic on the Bar Examination therefore would include substantive areas of law in which there exists a high incidence of unmet legal needs, such as landlord-tenant (evictions and foreclosures), domestic relations, debt collection and consumer protection, bankruptcy and public benefits. The topic would also include ethical issues that arise where not all litigants are fully represented by counsel, such as under Massachusetts Rules of Professional Conduct 1.2, 1.5, 1.14, 4.3, 6.1, and 6.5, and with Limited Assistance Representation (LAR). Finally, the topic would include due process doctrines related to fair hearings, the constitutional and statutory underpinnings of, and limits to, the civil right to counsel in Massachusetts, and the law relating to attorneys’ fees and fee-shifting statutes.
The Memo even suggests bar exam topics (law students do not read!)
— in a real estate transaction the contract calls for delivery of the property free of tenants, but a tenant reports that there are conditions in need of repair in her apartment and she has a rent subsidy to assist her with the rent; or
— in a debt collection case, the client consults a lawyer after judgment has entered against the client, who appeared without counsel, after an unmonitored hallway negotiation in which the opposing lawyer insisted that the debtor owed the money and would be ordered to pay (raising ethical issues under 4.3) despite the fact that the client’s source of income is public benefits (so she may be judgment proof); or
— a lawyer interviews a potential client in a divorce case that includes issues relating to custody, child support and the division of marital assets. The client, a victim of domestic violence, says her spouse controlled all the assets, so while she believes there is real property, she is not sure. The potential client earns just enough money to put her over the legal services guidelines for eligibility, but has only limited money to pay a lawyer, and wants to know if she can hire the lawyer simply to prepare court papers and write a brief.
I hope this idea stimulates not just the adoption of changes like this, but also questions about the curriculum of law schools in general. It is surely true that many law schools have to “teach to the test.” Moreover, all law schools may find this approach opens more ways to linking the teaching of professional responsibility with poverty law.
Please feel free to suggest variations of this idea — and ways of approaching the examination design process.