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In-Box: Reader responds concerning proposed changes to state's bar exam

July 31, 2013
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Letters to the Editor

To the editor:

As a new lawyer, I appreciate the timely news and critical legal updates provided by the Indiana Lawyer. I would like to take this opportunity to write in response to a June 19, 2013, IL article on proposed changes to the Indiana Bar Examination.

As a recent law school graduate and even more recent bar exam participant (July 2012), I would like to express my concern for the proposed changes to the Indiana Bar Exam. While I can appreciate the challenges associated with changing anything, particularly a bar exam, the proposed changes seem to entirely miss the boat on the purpose of any bar examination.

The article suggests that a bar exam is the opportunity for the examiners to make a determination as to which candidates appear at least minimally competent to practice law in Indiana. That is about the only premise I generally agree with, and yet I personally know people who did not pass the bar exam that are more competent in certain areas of the law than I could hope to be.

The article suggests that bar exam candidates “learn” Indiana law by studying for the bar exam. That’s simply not accurate. I took the exam, and I would not begin to suggest that I learned Indiana law by that preparation. In fact, if I recall correctly, there were only two questions on the Indiana Bar Exam in July 2012 that even remotely hinted at Indiana law – one regarding family law and one regarding simple, basic trial rules/procedure. The essay I remember most clearly was the one on UCC-3, a course I never took in law school and a subject that I memorized for the Indiana Bar Exam using a mnemonic device, which I don’t remember. Yet I’m certain I scored every point possible on that question. My “flawless” answer to that question should not have determined that I was “minimally competent to practice in Indiana,” but it likely did contribute to my passing that exam. Personally, I’d prefer that the state went to a diploma privilege license like Wisconsin with the additional requirement that new law school graduates then apprentice for several years with experienced lawyers. That’s another discussion.

My primary concern with the proposed changes to the bar exam is that there is no discussion of moving to the Uniform Bar Examination like at least 13 other states have already done. Just use the MBE, the two ridiculous MPT “products” if you must, and six national essays. If 13 other states can figure out who is minimally competent to practice law from the UBE, so can the Indiana Board of Law Examiners. The benefit for the hundreds of Indiana law school graduates – portability of the UBE score to other jurisdictions – far outweighs any presumed competence the Indiana bar might think it is gaining by using Indiana specific essays. And, based on my experience, Indiana only currently uses one or two somewhat specific essays per exam administration at this point.

The proposed changes such as adding tax law and bankruptcy law to the exam is a great idea in theory, but it is flawed in its premise that anyone is going to come out of that exam preparation ready to practice, for example, bankruptcy law with minimum competency. I had an excellent course in bankruptcy law in law school and did well in it. I also worked in a law office in Crown Point for two years while in law school with an experienced bankruptcy attorney. The only thing I know for certain is that I am in no way competent to practice bankruptcy law, even though I am technically licensed to do so. If I were to decide to practice bankruptcy law, or any other field for that matter, I would work with an expert lawyer who has been doing it for 20-plus years and knows what he or she is talking about. To do it any other way seems to me to be flirting with malpractice.

As the nation’s law schools regroup and restructure to offer more practical, skills-based education to their students, boards of law examiners and state bars should be restructuring their requirements to insist on far more than minimal competency in the candidates that enter the profession. Is it ethical to allow a “minimally competent” lawyer to practice law on an unsuspecting client? Now that would be a useful question on the MPRE!

So, do future attorneys a huge favor and don’t be the last jurisdiction to switch to the UBE. Do something truly important for lawyer competency in Indiana – put a “residency” requirement in place for all new Indiana attorneys, regardless of what area of the law they want to practice, rather than Indiana’s current position of allowing new lawyers to practice on their clients. Thank heavens the medical profession doesn’t allow a minimally competent doctor to do open heart surgery. It should be no different for attorneys.•

Richard Mitchell, Ph.D., J.D.

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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