The great bar exam debate

The Ontario bar exam is a peculiar test. It’s open-book, multiple-choice, time-limited and incredibly long. You can’t practise law in the province until you’ve passed it. Some people like it that way. In their view, the exam is an impartial tool that neatly measures the practice-readiness of a new lawyer. Others insist that it measures something far less important: whether someone can swiftly answer hundreds of questions under the weight of an arbitrary deadline.

Evidently, the critics have like-minded allies inside the Law Society of Ontario. Back in September, the regulator issued a report with a seemingly bold recommendation: to axe the bar exam and replace it with a “skills-based course” on the basics of “practice management, communications, client relationship management and professional ethics.” The curriculum would revolve around practical training, in the form of “self-directed modules, workshops and virtual law firms.” Frequent assessments would take place throughout the course—the proposal is unclear on what these might involve—to confirm that each candidate has the “entry-level competence” needed to practise law.

At the end of its report, the Law Society asked lawyers and members of the public to submit feedback on the plan by January 31. It didn’t take that long, however, for one prominent voice to have an opinion. Doug Downey, the province’s attorney general, soon released a crisp statement: “An objective, written and rigorous test is an important part of proving new lawyers are ready to practise law. Any changes that water down standards by scrapping written exams simply aren’t acceptable.” But do we know, for a fact, that the bar exam protects the public from incompetent lawyers? Do we know that the people who’ve passed it can deliver reliable legal advice?

Let’s look at the central study that the Law Society cited to justify its bar-exam-killing proposal. In December 2020, a research team at the University of Denver published a landmark report on the competence of junior legal talent in the United States. The team held dozens of focus groups with new lawyers, who collectively lacked a wide range of core legal skills. Many had no idea how to interview a client or gather the facts of a case. One lawyer told a focus group that he had drafted a defective estate plan “because he forgot to ask the client about his partner’s citizenship status.” Another had bungled a real-estate file because she never understood that it was her responsibility to handle certain vital tasks. “I literally didn’t even know I had the ball to drop, but I dropped it,” she recalled. Anecdotes of similar blunders run through the study.

Each of those lawyers had passed a traditional bar exam. In a lengthy section, the Denver study examines why the test failed at one of its chief goals: to set new lawyers up for success in real-life practice. It’s sharply critical, for instance, of multiple-choice questions that freely reveal the legal issue at play, “rather than require the test-taker to recognize it.” The imposition of a strict time limit, meanwhile, places a misguided “premium on speed.” Competent lawyers work slowly, prioritizing “investigation, reflection, and research.” The Ontario bar exam is somewhat distinct from the typical American iteration—which includes a closed-book portion and a written component—but it certainly deploys a multiple-choice format and puts test-takers on the clock. No jurisdiction, the study shows, should expect such a test to determine whether someone is ready to practise law.

Ultimately, the Denver study calls on legal regulators to vet incoming talent through (1) written assessments with comfortable deadlines, (2) practical coursework and (3) a tightly supervised placement at a clinic. The Law Society of Ontario’s recommendation—to scrap its bar exam and launch a compulsory skills-based course—would simply bring the province closer to that formula.

It would also mark a partial return to the recent past. From 1959 to the late 2000s, the Law Society ran the Bar Admission Course. Broadly speaking, it put licensing candidates through classroom instruction on “substantive and procedural law topics, as well as skills training.” The course ended for two main reasons: its high cost to administer and its poor track record as a method to teach new calls. Ideally, the Law Society will cook up something better, informed by the latest research. If that’s the case, it’s a reasonable plan.

Still, it’s unlikely to usher in an era of ultra-capable new lawyers. Plenty of licensing candidates in other provinces already complete the Practice Readiness Education Program instead of writing a bar exam. Much like what Ontario has in mind, it combines skills training, such as simulated casework in a virtual law firm, with evaluations that test overall competence. In a recent survey, however, only a modest share of junior talent in jurisdictions that rely on the program felt “very prepared” or “prepared” to enter legal practice: 40 percent in Saskatchewan, 49 percent in Manitoba, 50 percent in Alberta and 58 percent in Nova Scotia. Everyone else felt “somewhat prepared,” “not very prepared” or “not at all prepared.” That data tells a clear story. Mandatory coursework, on its own, won’t pack the legal world with well-prepared entry-level lawyers.

What would it take to accomplish that? Quite a lot, I imagine—a total overhaul of law school, with an emphasis on practical education; an apprenticeship program that, contrary to articling, delivers consistent instruction to each candidate; a widespread commitment to real reform. In law, change at that scale is rare. Without it, though, the public will have to hope that new calls continue to abide by an unspoken-yet-longstanding agreement: that it’s a bad idea to handle work well beyond their skill level, even if a regulator has granted them permission to do so.