OPINION: It’s time for the Alaska Bar Association to acknowledge reality

Chief Justice Peter Maassen and the other justices of the Alaska Supreme Court recently issued an order in which they lowered the passing grade for the Alaska bar exam from 280 to 270. Instantaneously, an unknown number of individuals who, because they had flunked the exam, had been deemed professionally unqualified to practice law in Alaska, suddenly became qualified.

The change was made at the request of the Public Defender Agency and the Office of Public Advocacy, which have been having difficulty finding attorneys to hire, particularly to assign to offices in Bethel and Nome and elsewhere in the Bush. And after the change was announced, the head of the criminal division at the Alaska Department of Law was jubilant that three individuals she had hired but who had flunked the bar exam now had unflunked and were qualified to be prosecutors.

While the Alaska Supreme Court’s action was a useful step in the proper direction, it did not go far enough, because what the justices should have done was eliminate the bar exam and admit into membership in the Alaska Bar Association every graduate of an accredited law school who wants to join. Because for graduates of accredited law schools, the bar exam is not a test that measures professional competence. It’s hazing.

That is because whether he or she attended law school at Harvard or Yale or at the Close Cover Before Striking School of Law, no law school graduate can pass the bar exam unless he or she spends several thousand dollars to take a bar review course. But what does sitting for hour after hour reading bar review course outlines in order to memorize arcane information — which, once the exam is over, is soon forgotten — have to do with practicing law or with protecting the public from attorneys who are professionally incompetent?

And with the rare exception, such as the locally legendary Tom Obermeyer, who has taken, and failed, the Alaska bar exam more than 20 times, if he or she is persistent, every graduate of an accredited law school who continues to take it will eventually pass the bar exam.

While, if you ask, her press secretary undoubtedly will stonewall and obfuscate, Lisa Murkowski flunked the bar exam at least four times. What was the point of requiring Lisa to take the exam over and over and over? When, after two years of trying she finally did pass, was Alaska’s senior U.S. senator really a more professionally competent attorney than she would have been if, rather than having been subjected to that torment, she had been admitted into membership in the Alaska Bar Association when she graduated from law school?

And insofar as law school graduates who have passed the bar exam are concerned, most members of the Alaska Bar Association know at least one member — I can think of four — who he or she privately considers professionally incompetent. Since the bar exam did not weed them out, again what was the point?

It also merits mention that in 1946, the California Legislature admitted into membership in the California bar without having to take the bar exam all California residents who had graduated from, or for two years had attended, an accredited law school and who had served in the armed forces between 1940 and 1945 when the surrender of Japan ended the Second World War. And since 1870, graduates of the University of Wisconsin Law School have been automatically admitted into the bar in Wisconsin. Has legal malpractice been rampant in California and Wisconsin because there are attorneys who practice in those jurisdictions who have not passed a bar exam?

Finally, and most tellingly, throughout Alaska the unauthorized practice of law is ubiquitous, because every day attorneys in Seattle, New York, the District of Columbia and elsewhere who are not members of the Alaska Bar Association give clients in Alaska legal advice through speaker phones in the clients’ conference rooms, through email and texting, and during Zoom meetings. And if one of them needs to participate in a lawsuit in federal or state court in Alaska, all he or she needs to do is ask and the request is routinely granted.

So the idea that the Alaska Bar Association is tantamount to a medieval guild and the bar exam is a barrier to membership that can protect members of the guild from economic competition is an archaic 19th century concept that is operationally irrelevant in the present day and age of instantaneous mass communication.

While the bar exam should be eliminated, there is an eligibility requirement the Alaska Supreme Court should require every graduate of an accredited law school who applies for admission to the Alaska Bar Association to satisfy.

No applicant should be admitted until he or she has demonstrated that he or she knows at least a modicum of something about the history — e.g., the Alaska Organic Act, Alaska statehood, Alaska Native land claims, Alaska National Interest Lands Conservation Act, etc. — of the jurisdiction in which he or she will be practicing by certifying that he or she has read Hubert Howe Bancroft’s “History of Alaska 1730-1885″ (1886), Jeannette Paddock Nichols’ “Alaska: A History of Its Administration, Exploitation, and Industrial Development During Its First Half Century Under the Rule of the United States” (1924), Claus-M. Naske’s “An Interpretative History of Alaskan Statehood” (1973), and the half-dozen other books, including several of my own, that collectively tell that history.

Since I thought he might be interested, I sent Chief Justice Maassen the entire list. While I have not heard back from him, in the northland, unexpected things occasionally do happen. So you never know. While I am waiting to find out whether I do hear back, if there is an attorney — or anyone else — who would like to read up on that history on his or her own, let me know and I would be happy to send the list I sent to the chief justice to you as well.

Some years ago, I wasted most of the summer reading bar review course outlines in order to pass the bar exam on my first try. One of the perks that came with the achievement was to have the Alaska Bar Association list my email address in the attorney directory on its website. So I’m easy to find.

Donald Craig Mitchell is an Anchorage attorney, author of the two books on the Alaska Native Claims Settlement Act and “Tribal Sovereignty in Alaska: How It Happened, What It Means.” He was also a former vice president and general counsel for the Alaska Federation of Natives.

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