Falling Rate of New Lawyers in the United States (since 2013)

28 Jul

Bar examiners blame the schools. The schools blame the students. The students blame the bar AND the schools.

Whoever bears the responsibility, the facts are clear — each year fewer and fewer lawyer hopefuls are passing the state bar exams. With the bar exam a prerequisite for entry into the legal profession, the consequences are obvious . . . the United States is watching the slow but significant decline in new entrants into the profession.

National Passing Statistics as recorded by the NCBE

From 2013 to 2018, the number of potentials taking the exam fell from 83,987 examinees to 68,198 examinees — a fall of 18.8%. And the number of students passing the bar in that same time fell from 57,031 examinees to 36,887 examinees (a shocking drop of 35.3% over only 5 years).

The change has passed largely unremarked amongst the legal media, but should come as no surprise to those following the trends. Since the 2013 dramatic crash in passage rates, the states have been producing consistently lower rates month after month.

Change in Passage Rates between July 2012 and July 2018

This map demonstrates which states are taking the hardest hits, though identifying one area of concern is difficult given the widespread nature of the issue.

Particularly concerning are the areas that were already experiencing a shortage of lawyers. Thanks to research from ‘The Last GenX American‘, we know the statistical dispersion of lawyers throughout the states as of 2017. Those states with the fewest lawyers (less than 25) per 10,000 residents are:

  • South Carolina (-5% lower passage rate between July 2012 – July 2018)
  • Arizona (-19%)
  • Idaho (-9%)
  • North Dakota (-16%)
  • Arkansas (-13%)
  • North Carolina (-16%)
  • Mississippi (-8%)
  • Indiana (no change)
  • Iowa (-10%)
  • Nevada (-12%)

In the best case (Indiana) we can say there has been no improvement towards repairing the shortage. In the worst case (Arizona), unless substantial lawyers are transferring in from somewhere the situation is worsening.

Many reasons have been suggested as to why we should ignore this issue. The two most common amongst my colleagues has been 1) Who cares? We already passed the bar and fewer incoming attorneys means more work for us and 2) We already had a surplus back in the early 2010s, so this is just economic readjustment.

Neither argument stands.

In terms of the first, some of the areas most in need of attorneys are the lower-paying, less desirable jobs that experienced and costly attorneys are not willing to take on. The messy divorces. The state defense of lower-income offenders. The small breach of rental agreements between landlords and their less ‘profitable’ clients. These are the cases that many young lawyers start with – taking care of the jobs no one really wants as they develop relationships, experience with client management, and training in basic legal operations.

In terms of the second, it is true that the number of bar passers increased somewhat through 2011 to 2012 and that there was concern over limited jobs and increasing applicants to big law firms (New York Times). But that was not an accurate picture of the national demand as a whole.

The big law firms of DC, New York, Chicago, and California may have sufficient supply. But even in the early 00’s, there was a massive shortage in some important fields – judicial, criminal, legal aid, and rural / small town support (Bhatia). Every community and every case needs at least 2 lawyers (one for both parties), not to mention the needs for additional attorneys to avoid conflicts of interest, handle prosecution, ethical compliance committees, small case takers, small business consultancy, etc.

Then there is the dearth of special-skills attorneys — those speaking foreign languages, foreign-trade experts in mid-west farming communities, etc. Even where attorneys were present, they may not be qualified to meet the needs. Exacerbating the issue are aging out attorneys with the retirement of baby boomers, those who pass the bar but are not directly in the profession (e.g. writers, business professionals, scientists, etc), and those who quit the profession for various reasons (health, disabilities, children, etc.). Like all industries, the legal field is taking a hit.

Then came the Bar Exam of 2013, and new lawyer potentials started falling — often worst in the areas most desperate for attorneys. North Dakota, South Dakota, Arizona — all desperately in demand of help and realizing 15% or worse declines in bar passers. That not to mention the concurrent decline in applicants in the first place.

New Mexico is considering licensing legal technicians instead of lawyers (Weiss). In 2017, Nebraska had 11 counties with no attorneys at all (Vogeler). Some states are paying lawyers a subsidy in hard-up areas. Others are facing rising attorney fees as the shortage sets in.

It’s a matter of economics and preserving the legal system itself. Sounds dramatic? It is.

For the applicants facing $100,000 – $200,000 in debt – passing the bar can be the difference between survival in the current economy or decades of debt and struggling. Those applicants unable to pass the bar must find other ways to finance their loans – decreasing disposable income available to pay for their own needs.

Then there is the matter of justice and what is reasonable within the profession. Lawsuits already often take months to be heard or settled – a lack of lawyers or legally trained workers (e.g. judiciary) slows processing times — dragging out arguments, delaying needed financial payments, and depriving people of justice ever more. This can have significant economic and social impact on communities, relationships, personal lives, and the normal flow of business.

Furthermore, our legal system has a very clear set of establishing the legal and humans rights of the people and the ethical obligations of attorneys. With a shortage in lawyers in the rural areas and the subsequent high costs of legal fees, how then can we satisfy each person’s right to an attorney? If there are only two lawyers in the community and both are good friends with the husband, who is left to represent the wife? If there are limited attorneys in any county, it is not hard to see who would be likely to get first dibs at aid and assistance — and it won’t be the poor or lower classes, the small businesses taking on established corporations, or the children who needs ad litum defense against abusive parents. It will be those with the money to pay rising fees and support the increasing work load of pressured attorneys.

With a decline in judicial potentials, legal aid assistance, and consistent lack of attorneys qualified and willing to help the poor and immigrant populations, where then are the voices for justice so necessary to defense of our nation and society?

National Bar Passage Attendance and Passage

  • ​2013 ~ 68% (57,031 passed out of 83,987 examinees)
    • ​February ~ 58%
    • July ~ 72%
  • 2014 ~  64% (61,808 passed out of 80,913 examinees)
    • ​February ~ 57%
    • July ~  67%
  • ​​2015 ~ 59% (46,038 passed out of 77,437 examinees)
    • ​February ~ 52%
    • July ~ 63%
  • ​2016 ~ 58% (42,641 passed out of 74,092 examinees)
    • ​February ~ 49%
    • July ~ 62%
  • 2017 ~ 59% (41,812 passed out of 70,857 examinees)
    • ​February ~ 46%
    • July ~ 65%
  • 2018 ~ 54% (36,887 passed out of 68,198 examinees)
    • ​February ~ 41%
    • July ~ 60%

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