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Attorneys say flunking the bar hurts badly, but does not spell doom

May 3, 2017

As a young man, just graduated from law school with a wife, a baby and a mortgage, Tim Malloy suddenly had to figure out a Plan B.

He had planned to practice law in downtown Chicago and, to make himself a more attractive hire to the senior partners, he had sought to get licensed in both Illinois and Indiana. What he didn’t count on was failing the Illinois bar exam.

exam-pullout-numbers“That is a wound that hurts and that is a rejection that you don’t want to relive,” Malloy said recently.

The northwest Indiana attorney is part of a growing crowd. More and more law school graduates around the country are stumbling over the bar exam, the first major test of their young legal careers. For high-achieving individuals not used to failure, the experience can leave them devastated and questioning their abilities. It can also permanently alter their career paths.

Malloy tried again in Illinois but reached the same outcome, so he used his Indiana license and opened a solo practice in the Hoosier state. He has since built a 36-year career and is now a partner at Malloy Etzler & Lawhead P.C. in Highland.

Despite the hiccup, Malloy does not believe he suffered any long-term consequences. He thinks his career turned out for the better, and he noted the bar exam is not the only challenge an attorney will experience. He has had professional disappointments, like judges not convinced by his arguments or juries not returning favorable verdicts, and personal heartbreak, such as when his first wife and then his brother died.

Still, he can readily recount how getting the results was particularly agonizing. His uncle, who was a judge in Will County, Illinois, had inspired him to study the law, and Malloy had hoped to someday practice in his uncle’s courtroom. “I can still remember the hurt,” he said.

Indiana’s overall pass rate has fallen from a high of 78 percent in 2008 to a low of 61 percent in 2016. Surrounding states have charted a similar trajectory and posted their lowest percentages last year. The overall passage rate in 2016 for Kentucky was 70 percent; Illinois was 69 percent; Ohio was 67 percent; and Michigan was 65 percent, according to the National Conference of Bar Examiners.

In January, a group of Indiana judges, attorneys and legal educators released a report that looked, in part, at the question many are asking as to why more law school graduates are failing the bar exam. The Indiana Bar Examination Assessment Task Force, formed by the Indianapolis Bar Association in collaboration with the Marion County Bar Association, pointed out the average passage rate has dropped since Indiana included the multiple-choice Multistate Bar Exam in the state bar exam.

Co-chair of the task force, John Maley of Barnes & Thornburg LLP, has taught bar exam preparation courses since 1992 and said people fail for a variety of reasons. A person may not have the analytical skills or did not properly prepare for the test, but the real key to success is writing. People who are not good writers are likely to fail.

Economically, the impact of failing the bar can depend on the applicant.

failure-chart.gifAs Maley explained, a law school graduate who has a high GPA, served on the law review and landed a position at a firm will probably be allowed to continue working while preparing to retake the exam. However, graduates who did not build an impressive academic career and do not have a job at graduation will suffer. They will have to delay their hunt for a legal position until they are licensed, and they are likely going to have to rethink their goals. Instead of working in a metropolitan area once they pass the bar, they may have to move to a more rural part of the state, join a small firm and work their way up.

Emotionally, failing the bar exam can be brutal.

An Indianapolis criminal defense attorney, who asked not to be identified, began suffering panic attacks after he fell short. He failed the bar exam twice and, during that period he calls his “wilderness years,” worked as a bailiff. Watching attorneys in the courtroom and wondering if he would ever be able to join them would cause him to physically panic.

Coming from a family of lawyers, he had a job lined up in an Evansville law firm, but everything changed when he returned home from a college football game between Notre Dame and Purdue and found his mother crying. She had opened the letter from the Indiana Board of Law Examiners.

He first took the exam in 1985, sitting in the Egyptian Room at the Murat in Indianapolis, and when he was unsuccessful a second time, he quit trying for a while. At that time, the Indiana exam was all essay, and he believes he might have been tripped up by his self-described bad handwriting.

The third time was a charm. After getting the congratulatory letter from the bar examiners, he celebrated by tossing all his notes and study materials in a Dumpster. He called the act “very therapeutic.”

Looking for a lawyer job was another challenge, but he was eventually hired as a public defender. Having watched numerous proceedings as a bailiff, he was quickly able to sharpen his courtroom skills.

Although the pain of stumbling has faded after more than 30 years, the experience taught him a life lesson. “It made me be more open to people’s problems and what can occur,” he said. “It makes you be more empathic.”

Maley noted as devastating as failing the bar exam can be, it is not the worst thing that can happen in lawyers’ careers if they eventually pass the exam. Getting disciplined or picked up for drunken driving can be far more disastrous and long-lasting.

And for those who do not clear the hurdle, they are not alone.

In fact, another Indianapolis attorney who asked not to be identified advised that those who do fail should not cut themselves off from friends and family. That attorney knows from experience.

Although she initially passed the bar exam in 1999, a few months before graduation, she had to take time off from law school because of personal struggles. When she finally did complete her studies, the exam results were no longer valid. She walked into the exam room in 2002 confident she would be successful again, but she failed and continued to fail after multiple tries.

Today, she is not sure why she persevered, especially since, she acknowledged, she was ambivalent about practicing law. “Telling me I couldn’t do it triggered something in my head that I was going to do it,” she explained. “Somehow the idea I couldn’t fail just stuck in my head. I’m sure many people thought it was just complete stupidity.”

But many people were not around her. She kept her exam scores to herself and severed most of her relationships with people in the legal community and her former classmates. Gradually she began avoiding all social situations because she did not want to confront the question, “What do you do?”

Now she encourages those who want to be lawyers but fail the bar to keep taking the exam and stay connected to the legal field by working as a clerk or paralegal. Above all, she said, “Don’t let the exam define you.”

Malloy agreed. “That is not the measure of you as a human being,” he said of the bar exam. “That is just a representation of your ability on one day. It is not the measure of you as a person but one small sample of your abilities in one area.”•

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