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BILLINGS – The public is being asked to submit comment on whether to lower the passing score for the Montana State Bar Exam.

The Montana Supreme Court is accepting public comment through May 20 on a committee report that recommends lowering the Montana State Bar Exam passing score from 270 out of 400 to 266. The committee also recommended any aspiring lawyers who had taken the exam in the past three years and scored 266 or above be allowed retroactive entrance to the Montana State Bar.

At 266, the passing score would be about 66.5 percent on a traditional 100-point grading scale. The committee said this would be adequate to “protect the public by screening those deemed not yet prepared.”

The committee was formed to examine a memo submitted in January by University of Montana’s Alexander Blewett III School of Law Dean Paul Kirgis. The dean requested the Montana Supreme Court and Chief Justice Mike McGrath consider new data showing that from 2013 to 2015, Montana had the steepest decline in passing exams scores, with greater than 20 percent more people failing the bar exam than in previous years. Kirgis argued in the memo that the failings are the fault of a higher score standard and not a lack of qualified law students.

According to Kirgis, when Montana adopted the Uniform Bar Exam in 2013, two notable changes were made. First, the Montana Bar Exam dropped a section of questions about specific Montana law.

That change was made because “a four-question essay test on limited areas of Montana law does not assure broad familiarity with Montana Law.” Kirgis said dropping this portion of the test did not have a notable effect on law students’ ability to pass the bar.

The second change raised the bar's passing score from 260 to 270. Only six states have bar exam passing scores set at 260 or lower, with 31 states setting their passing score at 270 or higher. Washington, Wyoming, Utah and Nebraska all have passing scores set at 270.

The pass score change was made at the behest of the Montana Board of Bar Examiners. The board petitioned the Supreme Court to raise the score after it became aware there were anecdotal reports "of applicants unsuccessful in other states searching for a low-score, high-pass rate state in which to take the exam and become licensed.” The board did not wish for Montana to have that reputation, they said at the time.

Since the change, UM’s percentage of recent law school graduates who pass the bar exam on their first attempt went from a 10-year average of 88 percent to 69 percent in July 2014 and 68 percent in 2015.

In 2013, the year the passing score rose to 270, UM School of Law graduates performed “very well,” the committee stated, passing 87 percent of first-time test takers.

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The president of the National Conference of Bar Examiners, Erica Moeser, has correlated the lower number of students passing the bar to the lower number of qualified candidates applying to law school.

UM's law school admission rate went from 45 percent in 2011 to 65 percent in 2015. The school's average admission went from under 200 offers to almost 250 admission offers. At the same time, the students accepting admission offers in 2011 was close to 43 percent. In 2015, only 29 percent of students who got an offer of admission enrolled at the law school.

Kirgis disagreed that graduating law school students are less qualified than in previous years. He argued the law school precursor exam, the LSAT, historically has been a good determinant of who was going to pass the bar exam after graduating law school. The law school has not seen a significant increase in the number of students applying with low LSAT scores.

“For the past three years, Montana has required a score of 270 for an aspiring lawyer to be eligible to practice law in Montana,” Kirgis wrote to the Montana Supreme Court. “As a result, over those three years, as many as two dozen graduates of Montana’s only law school were barred or delayed in becoming lawyers in Montana for the sole reason that they graduated from law school at the wrong time.”

The committee was made up of representatives from UM's law school, the State Bar Association and the Board of Bar Examiners. Representatives included Kirgis, Beth Brennan, Jamie Iguchi, Randy Cox and committee chair Jim Rice.

All public comment should be filed in writing and submitted to the Montana Supreme Court Clerk of Court, Ed Smith. The court intends to hold a public meeting on May 31.

There are 3,133 active members of the Montana State Bar and a five-year average of over 50,000 case filings in Montana. Over 70 percent of those attorneys reside in only five of the 22 judicial districts. Those five districts reporting only 55 percent of Montana’s total caseload.

Ashley Nerbovig can be reached at anerbovig@billingsgazette.com.

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