The Bar exam is what we make of it

my Trade Tripper column in this weekend issue of BusinessWorld:

One readily picks up a number of bad habits from Cambridge. But it does have its uses. By osmosis, it lends its students the art of self-deprecation, which can surprisingly lead a man to a more self-contented outlook. No Cambridge man would directly say he actually studied in Cambridge. Hence why it is utterly vulgar for any Cantabian to point to another individual and declare: “It’s obvious that you did not graduate from [state name of university here].” It’s simply not done and is utterly bad form.

I mention Cambridge because it is October. Cambridge does have a somewhat decent law faculty and the Michaelmas term begins this month. October is also the month of the Philippine Bar exam.

It is normal for people to bash the Bar exam and certainly understandable that those taking it now to be creatively cursing it. Although I do notice that it is quite rare for those who topped or ranked highly in the Bar to be superciliously critical of it.

To say, however, that the Bar exam needs improvement is to state the blindingly obvious. The question really is: To improve it for what purpose? Another is: How to improve it?

To consider the Bar exam as the legal profession’s guardian for quality control is to misunderstand it. Like any government creation, it should always be only subsidiary in function to the people who comprise the society that created it.

The Bar is no fundamental defender of standards in the same way that the Supreme Court (or any government branch) is no ultimate defender of democracy and the Constitution.

Clearly, the Bar is a necessity. A nuisance, but still a necessity. If even for a thing like joining a law journal would require testing its applicants, then the logic of the Bar becomes evident.

But the standards of the legal profession cannot be made to rest on the Bar. It simply will not be equipped to do so. Of what use is making the exam more analytical, more philosophical, when you already have a passing percentage that hovers around 15-20% year in and year out? And people still complain about the quality of those 15-20%.

When I was a 2009 Bar examiner for Political Law and Public International Law, I had the disappointment of seeing numerous (and I mean numerous) answers from people who graduated from law schools but do not know the meaning of the word “exonerate.”

In the years traveling to different countries for my international trade law work for multinationals and for the government (including assisting in state-to-state disputes), I saw the relative weakness of our legal profession’s understanding of public international law and its (along with foreign laws) relationship with domestic law. Which probably explains the impression of the general public (rightly in my view) of our treaties being overly generous to our partner countries or of peace agreements obviously detrimental to our national sovereign objectives.

But simply slashing down further the number that pass the Bar is simplistic. We have a “lawyer density” of around 2.5 lawyers per 1,000 Filipinos (at an assumed 40,000 lawyers vis-à-vis an estimated 100,000,000 Filipinos). This makes our lawyer density well below that of the US’ 3.65 lawyers per 1,000 US citizens.

But the legal profession today is such that a huge number of those 40,000 lawyers will not be into litigation. Most instead would use their law degrees for careers in business, politics or academe. Thus, the number of (quality) lawyers actually providing traditional legal work is fantastically small, the short supply likely explaining the country’s high legal costs (particularly for the poor).

The problem, therefore, is not the Bar exams but the law schools, their faculties (and the ideologies they peddle), and a legal culture that has not caught up with the changed realities of our profession. It is they who churn out thousands of law graduates who (through no fault of theirs, as everyone has different aptitudes) should not have been into freshman law in the first place.

And while the medical profession efficiently evolved, from its schools engaged in team teaching (thus exposing students to different expertise for each topic) to classifying doctors as general practitioners, diplomates and fellows (thus objectively letting patients know their doctor’s professional caliber), the legal profession is still stuck with age or seniority (or even family or school connections) as basis for teaching posts or for being labeled as “expert.”

Law is a compellingly elegant subject, the profession indeed a noble one. But massive changes have to be brought into legal education, education as a whole, and in the local culture of the profession for the Bar exam to be brought into its rightful less significant role than it has now.

Unless we recognize that, determined to do that, then we will just have to confine ourselves to saying good luck to all the law graduates taking the Bar this month.