A typical courtroom in the United States
is dominated by a raised platform on which the judge sits, called the bench
. The area in front of the bench is divided from the rest of the room by a low railing. This railing is “the bar
”. No one may speak to the judge from behind the bar. Of the people allowed past the bar --parties, witnesses, clerks, reporters-- only lawyers may speak freely. Lawyers may, in fact, rudely interject objections. If anyone else does that, they are removed from the room by the bailiff.
Thus, “the bar” also refers to the group of persons qualified to appear and speak up in court. Similarly, “the bench” refers to the judges of that court or region in which the court has jurisdiction.
The regulation of lawyers is yet another example of the distribution of powers in a constitutional democracy. The regulatory power is distributed to the States. Regulation is entrusted to the judiciary instead of an independent board or agency, under the control of the Executive branch, as is the case with all other professions.
Some "bar associations" are voluntary clubs with no formal connection with the government. An example is the American Bar Association. While the ABA is highly influential --most States' "ethical" standards are patterned on model rules created by the ABA-- it remains a voluntary trade association. Many state bar associations, on the other hand, have been "integrated" with the regulatory functions of the State judiciary. These are "mandatory" bar associations: you must be a member of the State bar association to practice law in that State. In addition to meeting all the other requirements for a law license, you have to pay hundreds of dollars in dues to the bar association each year. It's like being forced by law to join the Rotary Club in order to do business in a town.
Bar associations tend to promote quixotic causes, like encouraging lawyers to donate their time to non-paying work "for the good" (pro bono), or exhorting them to be nicer to each other (this is called "professionalism"), or trying to improve the public image of lawyers. This sort of mindless boosterism is forgivable if one considers the importance of the rule of law in a democratic society.
Frankly, no amount of "pro bono" work can make up for the corrosive effect of money on lawyers. Law determines the distribution of power and privilege, and is naturally subject to corruption. Lawyers can and do command more compensation than they have earned, to bend the rules and distort the system to serve their patrons. Being polite and professional while lying, cheating and stealing seems comparable to using lubricating jelly to commit rape.
Bar associations tend to discipline only the most egregious crimes. Still, it's better than nothing.
Admission to the bar is permission to practice in a particular State. Federal courts in that state, and federal appeals courts, recognize the State license, but not federal courts in other states. A license to practice in New York does not permit a lawyer to appear in California courts. There is no “federal” license allowing you to practice in all 50 states. (Admission to the bar of the United States Supreme Court only gives you the rare privilege of arguing a case in the Supreme Court.) Most lawyers are licensed to practice in only one or two states.
Decentralized Regulation of Lawyers
The legal profession regulates itself at the State level through agencies attached to the judicial branch of government. Decentralized control of the legal profession resists political subversion. An example: the Department of Justice is the federal law enforcement agency. It includes, for example, the Federal Bureau of Investigation. It is run by the Attorney General, who is appointed by and can be removed by the President. The policy of the Department therefore reflects the political ideology of the President. During the Presidency of the elder Mr. Bush, the ideology was conservative and authoritarian. The Attorney General (Richard Thornburgh) issued a memo exempting lawyers working for him from certain “ethical” rules. Justice Department prosecutors were authorized to interrogate people charged with crimes without their lawyers present. This practice encourages prosecutorial deception and trickery, but is rationalized by arguing that it helps the government "win" more cases and put more criminals behind bars. However expedient, the practice violates State “ethics” rules. In response to AG Thornburgh's memo and several incidents of abuse by Justice Department prosecutors, the State Bar of New Mexico took steps to revoke the license of a Justice Department lawyer with a New Mexico license. The dispute ended up in a federal court. The federal district court judge in New Mexico, Juan Burciaga, rebuffed all arguments asserted by the Department. Like the Attorney General, Judge Burciaga was appointed by the President. Unlike the Attorney General, Judge Burciaga was appointed for life and could not be removed by the President. He remarked:
Before issuing his memorandum, Attorney General Thornburgh would have done well to have taken a few steps from his office to contemplate the inscription on the rotunda wall where it is cast in stone -- "the United States wins its case whenever justice is done one of its citizens in the courts."
In the Matter of Doe, 801 F. Supp. 478 (D.N.M. 1992).
The checks and balances also work the other way. When local lawyers and judges are corrupt, federal law enforcement officers investigate and prosecute them for crimes such as bribery.
Admission to “the Bar”
Some features of professional licensing of lawyers reveal an English heritage. In the United Kingdom, the “bar” means barristers, not lawyers in general. Traditionally, barristers had rights of “audience” in a particular court. Today, some solicitors are permitted to argue in court, and the distinction is somewhat blurred. The distinction between "barrister" and "solictor" was not followed in the United States. The U.S. does, however, restrict the practice of law, and admission to "the bar" means permission to speak in court.
Barristers undergo an apprenticeship called a “pupillage”. This tradition was followed in the United States during the 18th and 19th Centuries, when lawyers would endure a period of “reading for the bar exam”, which meant they had access to the law library of an established lawyer or law firm, in consideration for menial clerical work. Up until the late 19th century, a “bar exam” was a relatively informal meeting with an examiner, usually the local district judge, and could be as much an examination of character as knowledge of the law. It is said that Patrick Henry --the famed Virginia lawyer of the Revolutionary period and proponent of the Bill of Rights-- passed his bar exam solely on style, being at that time wholly ignorant of the law. Unfortunately, this system encouraged nepotism and cronyism, and concealed discrimination on the basis of race, religion and national origin.
Those days are long gone. Every effort has been made to create an objective measure of merit. While the number of fools and reprobates among practicing lawyers proves there is no test for wisdom or virtue, overt discrimination has been eradicated, the bar is much more diverse than it was a century ago.
Today, after graduating from law school, in place of reading in a firm’s library, one signs up for a bar review course to prepare for the bar exam. The usual pattern is to graduate from law school in May, and spend the summer studying for test in July.
The Bar Exam
Every State has its own requirements for admission to the bar, but most require:
- a law degree (J.D.) from an accredited law school
- an application, which includes a criminal background check
- a passing score on the bar exam.
The bar exam has two basic components: essay questions and a grueling, standardized multiple choice test called the “Multistate Bar Examination” or MBE, developed by the National Conference of Bar Examiners.
Essay questions are easy after law school. This is what you did in law school: the professor lays out a problem, you "spot" as many "issues" as you can, and spout as much law as you can remember. If you graduated from law school, you know how to do this.
The multiple choice is the hard part. Your typical law student has taken many standardized tests. He or she had to do well on the SAT to get into undergraduate school, and even better on the LSAT to get into law school. The Multistate, however, is the Mount Everest of standardized, multiple choice exams. Every question is a trick question, and there are always two plausible answers even after you’ve spotted the trick. It’s fiendishly hard.
As the name suggests, the Multistate is used in a number of states, and covers principles of six areas (Constitutional Law, Contracts, Criminal Law, Evidence, Real Property, and Torts) which are likely to have application in all 50 states. Some of the areas, such as criminal law and real property law, are based on law of historic interest only. For example, the elements of the classic felony of “burglary” included breaking into a dwelling at night. Due to statutes which define the crime more broadly, a daytime unauthorized entry into a commercial establishment with intent to steal is "burglary" in every jurisdiction except the Land of Multistate. Thus, cramming for the Multistate involves memorizing useless distinctions and archaic rules.
At the same time, the would-be lawyer will be expected to know the real State law for the essay questions. So you must learn two sets of rules: the rules for your State, and the rules for the imaginary jurisdiction of “Multistate”.
A typical bar exam lasts three (3) days: one day for the Multistate, two (2) days for the essay questions or whatever other components that State requires. (My state, New Mexico, required an additional multiple choice exam on ethics questions, called the MPRE, which mercifully could be taken separately from the 3-day bar exam).
Bar exams generally have a high pass rate. States which don’t, like California, also let people who don’t have a law degree take the exam. California’s pass rate for graduates of accredited law schools is similar to the pass rate for other states.
National Conference of Bar Examiners: http://www.ncbex.org/tests.htm