Attorney group seeks to grow its ranks by lowering Alaska’s bar exam standard

The Alaska Bar Association is asking the state Supreme Court to lower the minimum exam score needed to become an attorney in the state as part of an effort to attract a larger and more diverse cohort of practicing lawyers.

The association’s board of governors last week adopted a recommendation to lower the state’s minimum bar exam score needed to pass. Alaska currently has the highest score requirement in the country among the 40 states that use the same test.

The decision comes as Alaska faces a shortage in attorneys that prompted the Public Defender Agency to announce last week that it wouldn’t be able to represent new clients facing serious felony charges in the Nome and Bethel courts.

The bar association board is recommending that Alaska’s score be lowered from 280 to 270, which would put it in line with the majority of other states.

Of the 40 states and one U.S. territory that use the same exam, five have set their minimum score at 260, 12 have set their score at 266, and 17 have set their score at 270. Only three states other than Alaska require a score above 270 — Arizona’s requirement is 273, and Idaho and Pennsylvania require 272.

The recommendation was adopted by the bar association board in a meeting held Feb. 2, along with a recommendation to make the change effective retroactively on bar exam scores dating back five years. Both recommendations were adopted by the board in 9-1 votes. The final decision on the score change will be made by the Supreme Court justices, who will consider the recommendations and vote on them in the coming weeks.

The move is supported by former Supreme Court Chief Justice Daniel Winfree, the Department of Law, the Public Defender Agency, and the Office of Public Advocacy, who say the lower score will help address a challenge in recruiting new attorneys to the state.

“If Alaska is truly to increase public service amongst the Bar and encourage the efficiency of the courts, then it is more important than ever to facilitate access to our state and profession,” wrote Deputy Attorney General John Skidmore, Alaska Public Defender chief Samantha Cherot and Office of Public Advocacy Director James Stinton in a joint letter to bar association last month.

[Alaska public defenders will begin refusing cases in Nome and Bethel, citing staff shortage]

The three agency heads said the change would help address a backlog in criminal cases caused by the coronavirus pandemic, attorneys’ growing caseloads, and the agencies’ growing challenges in recruiting new attorneys.

“The most important tool for continued reduction of any backlog is employing sufficient personnel. But there exists a vicious cycle: the unmanageable caseloads are in large measure responsible for attorney attrition and recruitment challenges,” they wrote, adding that their agencies have seen the number of applicants per open position go from between 20 and 30 to just one or two.

Among those who wrote a letter supporting the rule change was a recent law school graduate who was hired by the Department of Law as an assistant district attorney before she passed the bar exam, only to find out she had failed to meet Alaska’s standard by a slim margin, rendering her unable to practice law here.

“It is not uncommon for entry level attorneys who want to start their career in Alaska, or even ones that are maybe a little bit further in but are willing to retake the bar, to move here before they take the bar exam,” said Diana Wildland, president of the bar association board. An attorney can temporarily practice law before receiving their bar exam score, but if they then take the exam and fail to meet Alaska’s minimum score, they are instantly barred from practicing law.

‘Devastating financial and professional consequences’

According to a memo published by the Alaska Bar Association Board of Governors, “the Board could not identify any reason why practicing in Alaska would require the highest Cut Score in the country.” Nor could it identify, the memo says, “any specific gain association with having a 280 Cut Score versus a 270 Cut Score.”

The goal of the bar exam is to establish “minimum competency,” to practice law. Wildland said the board had decided that a 270 score would establish that standard, given that such a score or lower is already being used in so many other states.

The pass rate of the Alaska Bar Exam since it was implemented in its current form in 2014 has been 59%. Lowering the score would lead to a pass rate of 69%, which the board called “a more acceptable pass rate.”

Between 2011 and 2021, Alaska Bar membership has declined by 4.5%, even as the number of lawyers in the country increased by 9.4%, the memo said. If the bar exam score requirement had been set at 270 in 2014, 100 additional bar examinees would have passed instead of failed, translating to around 2% of Alaska’s bar membership, it said. That number, according to the memo, would “work to reduce the access to justice gap.”

If Alaska reduces its score, it wouldn’t be alone. In November, the Colorado Supreme Court announced it would reduce its required minimum score from 276 to 270 beginning this month, calling their own score “an anomaly.” Prior to the change, Colorado’s score was second only behind Alaska’s.

Idaho also lowered its score from 280 to 272 in 2017, and in 2020 Maine and Rhode Island lowered their score from 276 to 270. Oregon lowered its score from 284 to 274 in 2018, and in 2021 lowered it to 270.

In reviewing Alaska’s requirement, the board found that some law school graduates are taking the bar exam in other states in order to avoid failing to meet Alaska’s high bar.

Among those was Wildland, the board president, who decided to take the bar exam in the state of Washington after attending law school in Oregon.

Wildland, who was born and raised in Fairbanks, said she chose to take the bar exam where the passing standard is lower to avoid the risk of failing, despite her interest in pursuing a legal career in Alaska.

“It was economically feasible and gave me the best opportunity to pass a bar in a state where I could see myself making a home,” Wildland wrote in a November issue of the Bar Rag, a publication of the bar association. Wildland added that failing the bar exam on her first attempt “would have had devastating financial and professional consequences.”

When she was offered a job in the Alaska Public Defender Agency, she returned to Fairbanks without knowing whether she had passed the bar exam she had taken the previous month.

“Many lawyers hired under these conditions do not get to stay,” Wildland wrote.

‘Look more like Alaskans’

With a bar exam pass rate hovering just below 60%, many attorneys fail to meet Alaska’s threshold to practice law. But the pass rate is even lower for non-white applicants, at 39%, according to the bar association board.

Advocates for the change say it will make the legal profession more accessible to minority groups, including Alaska Native people. A high score requirement disadvantages minority applicants, who tend to underperform in standardized testing.

“The goal has always been to make the practice of law in Alaska more accessible,” Wildland said. That can be achieved, she said, “by having more attorneys available, especially attorneys that look like and have experiences like the people that we’re serving in our state.”

The effort could also help ensure that members of Alaska Native communities in rural parts of the state are represented by people who belong to those communities and are more likely to live in them long-term.

“We know that we need people in rural Alaska to practice law. And I know that a lot of people who are Alaska Native who grew up in those communities likely want to practice law and have various barriers, including the cut-off score, to doing that,” said Wildland.

One of the proponents of the change is retired Alaska Supreme Court Chief Justice Daniel Winfree, who said in an interview this week that the change could help “get the Alaska Bar Association to look more like Alaskans across the state.”

“We just have such a low rate of minority people in Alaska itself and a lower number of those people want to take the bar. So our bar doesn’t reflect the population and anything we can do to help it reflect the population is a good thing. It will take time for the bar to resemble Alaska. It will take even longer for the court system in terms of judges to look like Alaska,” Winfree said.

‘Good enough to practice in South Dakota’

Winfree was involved in implementing the Uniform Bar Examination in Alaska in 2014, in an effort to make it easier for young attorneys to move to the state. Using an exam that was the same across many states, rather than unique to Alaska, meant that students in law schools outside the state — Alaska has no law school of its own — could take the test near their school and then transfer the score to Alaska.

“We have always wanted to encourage young people to come to Alaska to practice law,” said Winfree, who was raised in Fairbanks and attended law school in California.

When Alaska implemented the test, 280 was chosen as the passing standard because it translated to a 70% score, the same percentage used in the state’s previous exam, according to Wildland. At the time, several states had similar scores, but one by one they began to lower their requirements.

“Then the questions started to arise,” said Winfree. “Why are you good enough to practice in South Dakota but you’re not good enough to practice in Alaska?”

The board first considered the score change in 2018, at Winfree’s request. At the time, the board decided against recommending a change.

“It’s not that they had a good reason to keep it, but they didn’t have a good reason to change it,” said Winfree.

Then, when the board took up the proposed change again late last year, it received overwhelming support from bar members.

“Not everybody agrees, but the overwhelming majority of responses were in support of changing the score to a lower number,” said Wildland.

This time around, Winfree said, a shortage in attorneys across the state is “a strong component” of the argument in favor of changing the score.

“Anything we could do to alleviate the public defender crisis, we should do. So I would hope that the court would take a quick look at it,” said Winfree.

But even if the high court agrees with the recommendation, it will not be an immediate solution to a shortage in experienced public defenders in Nome and Bethel that prompted the Public Defender Agency to announce last month that it would not accept new clients who face serious felony charges in those court jurisdictions.

“The thing with the bar exam mostly I think would impact younger lawyers, newer lawyers. So those would be the ones coming in to fill in and start at that misdemeanor level,” said Winfree. “I’m not sure that it has an immediate effect on the big problem the public defender has, but it can’t hurt. And in the long run, it would have some benefits.”