After 100 Years, Bar Examiners Still Protecting the Public

(Last Updated On: January 24, 2017)

Written by Gordon Hickey of the Virginia Lawyer, Volume 60

One day in June 1910, 161 young men—well, they were all men, though not necessarily all young—sat down in a room in Roanoke and took the first Virginia Bar Examination.

The first question was in four parts:

  • What is a freehold estate?
  • What is an estate in fee simple?
  • What is an estate in remainder?
  • What is the distinction between a vested and a contingent remainder?

A little while later they ran into question five on the thirty question test. It was in two parts:

  • A, who is 20 years of age, is engaged in the livery business, and is sued in assumpsit by B, who hired a hack from him, for injury caused by the negligence of A’s driver:
  • A, a lunatic, denounced B in the newspaper as the murderer of C; B sues him for damages:

Can there be recovery in (a), in (b)?

These days the questions might be:

  • What’s a hack?
  • And how much money might you lose in a suit after calling someone a lunatic?

In the end, 133 men passed the exam. Many of the twenty-eight who failed were joined by a few newcomers when thirty-eight men took the next exam in November 1910. Fifteen passed that second exam.

And so it has gone for more than 100 years. Current Board of Bar Examiners President Robert E. Glenn tells us that in July 2011, 1,513 men and women sat for the exam, with 1,156 passing.

To date, more than 83,000 people have sat for the bar exam in Virginia.

The first woman licensed by the board, by the way, was Rebecca Pearl Lovenstein, in July 1920. Perhaps not so coincidentally, the 19th Amendment was ratified one month later.

W. Scott Street III, who has been secretary of the Board of Bar Examiners for 40 years, said that most of those 83,000 applicants have passed—most the first time they took the exam, and since people can take it five times as a matter of right, some eventually.

The first Virginia Board of Law Examiners met at the Hotel Roanoke at 10 a.m. on June 22, 1910. They didn’t know whether they were required to take some sort of oath of office, so they did as “a precautionary measure.” That oath included the usual language about doing their duty and supporting the constitutions of the United States and Virginia. They also swore that they had never “fought a duel with a deadly weapon… and that we will not fight a duel with a deadly weapon.”

And so the Board of Bar Examiners as we know it today was born. Gauntlets, we’re assured, were not thrown down.

The exam hasn’t always been positively reviewed. Back in 1912, A.W. Patterson appeared before the Virginia State Bar’s Legal Education and Admission to the Bar Committee to complain. He presented an editorial he had written: “Slaughtered by the Legal Examiners,” in which he noted that sixty out 112 men who had taken the test had failed because “the questions asked were too difficult.”

On the other hand, William F. Stone told an audience of Washington and Lee Law School students in 1954 that the Board of Law Examiners was performing a worthwhile task. He quoted a 1660 act passed by the Virginia General assembly that noted “all courts in this country are many times hindered and troubled in their judicial proceedings by the impertinent discourses of many

busy and ignorant men who will pretend to assist their friend in his business and clear the matter more plainly to the court, although never desired or requested.”

In 1745 the General Assembly passed another law licensing lawyers which begins: “Whereas, the great number of ignorant and unskillful attorneys practicing in the county courts of this colony, is become a grievance to the country, in respect to their neglect and mismanagement of their clients causes….”

Clearly, Stone said back then, the exam was needed and if you didn’t believe him, just go back a couple of centuries to find confirmation. He also dismissed the notion that the thing was too hard: “I can say to you here that if you have a reasonable knowledge of the law and will keep your head when you take the examination, then the chances are that you will pass … the first time you take it.”

These days, Bob Glenn sides with Stone. The exam is the board’s attempt to set minimum standards, he said. The people who write the exam simply try to ask practical questions on issues that may confront a new lawyer in general practice. And, as Glenn pointed out, echoing Street, “Most people can pass it…. Our pass rate is equivalent to most states across the country.”

The pass rate for that first exam was about 82 percent. The most recent summer exam—it’s given in July and February—was about 76 percent. Over time, the pass rate has been fairly consistent, but there have been a few variations. For example, the worst pass rate was in July 1951 when 378 people were tested and 67 passed for a rate of about 17 percent.

Why? One can only speculate. Korean War? G.I. Bill? Harry Truman?

The winter test almost always has a lower pass rate than the summer test. Street said that’s largely because most of the people who take the winter test are those who failed the summer test.

Street said the test serves a goal that is at once lofty and practical. “The purpose is public protection. What segment of the population needs protection? It’s primarily the unsophisticated consumer of personal legal services.”

He pointed out that the great majority of practicing lawyers are in small firms or are solo practitioners. As Street knows from experience— he began with a small firm and practiced solo for several years—those lawyers don’t usually have a great deal of backup – they can’t go down the hall to get advice from an associate—and so need to have a broad base of knowledge. The exam “is the practicing lawyers’ evaluation of what the young lawyer without a great deal of backup needs to know.

“The law schools have not necessarily focused on that.”

The board also is responsible for evaluating applicants’ past conduct as it may reflect their character and fitness to handle the responsibilities of practicing law. Since 1995 this duty has been handled by the Character and Fitness Committee, which investigates, conducts hearings, and makes recommendations to the board. The current members of the committee, who are appointed by the Supreme Court, are Henry M. Sackett III, chair; Curtis M. Hairston Jr.; Julia B. Judkins; Linda S. Laibstain; and Nancy C. Dickenson. Stephen A. Isacs is the director.

On January 11, the Supreme Court of Virginia began its day by recognizing and honoring the Virginia Board of Bar Examiners.

In an interview before that session, Chief Justice Cynthia D. Kinser said, “The Court is pleased it has this opportunity to recognize the importance of the board.”

She said all members of the board, and all but one of the living members of past boards, were to attend the session. “I’m glad we can stop in open court and recognize them for their hard work and dedication.”

As for that exam, which so many frightened lawyers have successfully completed, Kinser is firmly on the team with Street and Glenn. “It ensures you’ve got a certain level of competence,” she said. “It protects the public and people seeking assistance.”

Also available at vsb.org.