The bar exam continues to confound licensing authorities in light of the coronavirus pandemic. There are many cohorts to consider, and there are many questions I still have.

Utah’s proposal is to offer diploma privilege to (1) first-time test-takers from (2) ABA-accredited schools whose overall first-time pass rate exceeded the Utah state average. I noted this was a fairly generous proposal considering how stingy “diploma privilege” has been, but that did cut some out. It certainly has not been without critique as too generous and too stingy. Nevada’s proposal updates the “performance test” for online administration. Time will tell what these or others may yield.

Washington, however, is doing something far more notable. To begin, it lowered its cut score from 135 to 133. This is a fairly modest change—most jurisdictions are in the 133 to 135 range, but it will certainly make the exam easier.

But Washington has gone a step farther. It announced the following change: all graduates of ABA law schools may have “diploma privilege” and earn admission. That includes, “The diploma privilege option will be available to applicants currently registered to take the examinations who are taking the tests for the first time and those who are repeating the tests.”

Now, this is remarkable in going beyond Utah for a couple of reasons. First, it applies to all ABA law grads, not simply those whose schools met the Utah threshold (although, as I noted, most Utah applicants would meet this test). Second, it includes repeaters, a cohort I’ve found mostly neglected in scrutinizing how to handle the bar exam.

I’m a little surprised on the repeater front, and it’s a reason to watch Washington in the decade (!) or so to come. Here’s why.

We know that lower bar exam scores are associated with higher ultimate attorney discipline rates, as Professor Rob Anderson and I have chronicled in California and studies elsewhere. Professor Kyle Rozema finds a similar effect.

It’s worth looking at the July 2019 bar exam cohort of ABA law school graduates to see what happened in Washington and what we can roughly expect from this July 2020 decision.

536 graduates took the July 2019 bar exam in Washington. 465 were first-time test-takers, and 71 were repeaters.

Among the 465 first-time test takers in July 2019, 366 passed, a 78.7% pass rate. Nearly 4 in 5 passed on the first attempt. 99 failed. One could imagine, then, a bar exam that exclusively looked to this cohort. Indeed, Washington has lowered its cut score. The pass rate would likely exceed 80% and perhaps even 85%. The vast majority of first-time test-takers pass.

Among those who fail the first time, a number likely would pass on the second attempt. From the February 2020 exam, we saw 96 repeat, 44 pass and 52 fail. We don’t know how many of those were on their second attempt or a subsequent attempt, but it’s likely a good number who passed on the second attempt. (It’s also worth noting that some number of the 99 who failed presumably didn’t try again in the February 2020 exam.)

Back to the July 2019 results. 71 repeated. Of those, 27 passed, and 44 failed for a 38% pass rate. Of note, 44 of test-takers (about 8%) failed the bar exam at least twice, and some of those more than that.

So that’s, I think, where the interesting part of this experiment lies. One can question the efficacy of the bar exam and the like, but it matches pretty closely with law school grades. Furthermore, we know lower scores or those who’ve failed at least once tend to face higher discipline rates. This could be a fairly notable shock to the system to admit so many at once who’ve failed multiple times and may never be admitted to the bar otherwise. Those whose entry would be delayed, those who’d drop out from taking the bar—they’re now all admitted, and all at once.

One could raise “access to justice” issues for underserved legal populations, which is a reason to admit more lawyers to the bar, but I wonder about this at a couple of levels. Are these exam test-takers who’d otherwise fail serving those “underserved” populations? And if so, will they do so well?

Another is that Professor Anderson and I, along with the study of Professor Rozema, noted that attorney discipline tends to manifest later in careers. Will we see more discipline earlier?

I don’t want to portend too much doom and gloom. Optimistically, perhaps the Washington State Bar has some relevant basis for helping supervise attorneys and identify those who are at-risk of discipline earlier in the career to prevent it from happening; indeed, Professor Anderson and I suggest that might be one such solution in the event state bars lower their cut scores. And, to be fair, character and fitness and other related scrutiny will still apply, which means that the bar exam is not the only thing standing between law school graduates and the practice of law.

Still, this is a fairly remarkable one-time event in Washington that should be worth watching. As states continue to grapple with the appropriate bar licensing regime, the results of this experiment will be helpful in assessing the costs and benefits of a bar exam.