MASSACHUSETTS ACCESS TO JUSTICE COMMISSION
Supreme Judicial Court
John Adams Courthouse
One Pemberton Square, Suite 2200
Boston, MA 02108-1735
Addition of “Access to Justice” Topic to the Massachusetts Bar Examination
The Massachusetts Access to Justice Commission has unanimously adopted a proposal
that a new topic called "Access to Justice" be added to the list of topics tested on the
Massachusetts Bar Examination. The proposal further requests that the Board of Bar
Examination (BBE) revisit the existing list of topics with a goal of reducing the number of topics
tested. As discussed below, we believe the recommended changes to the Bar Examination will
help recent law school graduates build successful practices in the current legal market, will help
address unmet legal needs in underserved client populations, and will help recent law school
graduates to recognize that providing access to justice is part of what it means to be a lawyer in
Massachusetts.
I.
Access to Justice and the Bar Examination
A. Background
The “Justice Gap” in Massachusetts is well-documented. Legal needs studies
consistently show that only a small fraction of low and moderate income households are able to
obtain assistance from a lawyer to address their legal needs, and publicly funded legal services
offices can only help a fraction of those who seek their services.1 Nor is the problem a recent or
temporary one. Many reports, including legal needs studies in Massachusetts from 2003, 1996
and even 1987, consistently have revealed the gap between legal needs and the availability of
lawyers to meet those needs. Yet, “[t]he economic downturn has increased the number of cases
in our courts that involve self-represented litigants, such as evictions, child support
modifications, and debt collection.”2 Unfortunately, many students graduate from law school illprepared to handle cases involving the areas of the law where the Justice Gap is most acute. To
make matters worse, although many attorneys in Massachusetts generously volunteer their time
to handle matters on a pro bono basis, many decline to do so because they lack the skills or
knowledge to assist litigants in the types of matters where their help is most needed.
Given the current legal landscape, more law graduates will need to develop practices that
focus on representation of persons of low and moderate means. Both the Boston Bar Association
and the Massachusetts Bar Association have recently issued reports discussing the crisis in the
1
See, e.g., LEGAL SERVICES CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA: THE CURRENT UNMET CIVIL
LEGAL NEEDS OF LOW-INCOME AMERICANS—AN UPDATED REPORT OF THE LEGAL SERVICES CORPORATION 5, 17
(2009), available at http://www.lsc.gov/pdfs/documenting_the_justice_gap_in_america_2009.pdf
2
2011 Annual Report on the Access to Justice Initiative in the Trial Court, 12 (2012), available at
http://www.mass.gov/courts/atj-final-report.pdf
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legal profession due to the glut of unemployed and underemployed lawyers and the changing
face of the profession.3 As the BBA Report noted, “for the foreseeable future, more and more
new law graduates … are likely to enter solo or small-firm practice.”4 The report cited figures
from the American Bar Association showing that “[n]early 50 percent of all private lawyers in
the U.S. are solo practitioners.”5 The MBA Report similarly concluded that “recent
Massachusetts law school graduates must consider alternatives to the traditional law firm entrylevel position.6 In order to develop successful solo or small-firm practices, law school graduates
must increasingly be prepared to utilize limited assistance representation, fee-shifting statutes
and other tools that are essential to a successful community lawyering practice.
The stated purpose of the Bar Examination is to ensure that new lawyers are minimally
competent to practice law. The topics tested on the Bar Examination therefore reflect the
profession’s judgment as to which core substantive areas constitute the essential building blocks
for the delivery of high quality legal services to citizens in the Commonwealth. The listed topics
also constitute a statement as to what subjects are the most essential ones with which lawyers
should be familiar. The addition of the Access to Justice topic sends the message that promoting
access to justice is part of what it means to be a lawyer.
The Bar Examination’s goal of ensuring that new lawyers are minimally competent to
enter the profession also requires that new lawyers are prepared to solve the civil problems most
often faced by low and middle income people. Given the changing nature of the legal profession
and the Justice Gap, it is essential that new lawyers in Massachusetts be prepared to handle cases
and provide assistance in the key substantive areas in which the Justice Gap is most prominent.
Lawyers ill-equipped to work in these areas will be ill-prepared to handle cases that might
produce income and be essential to their professional survival, particular those in solo practice or
small firms. They also will be unable to provide needed pro bono assistance.
B. Access to Justice: The Bar Examination Topic
As the Commission’s Mission Statement reflects, the Commission’s goal is to achieve
equal justice for all persons in the Commonwealth, and it strives to accomplish this goal by
providing and improving access to justice for those unable to afford full representation by
counsel. An Access to Justice topic on the Bar Examination therefore would include substantive
areas of law in which there exists a high incidence of unmet legal needs, such as landlord-tenant
(evictions and foreclosures), domestic relations, debt collection and consumer protection,
bankruptcy and public benefits. The topic would also include ethical issues that arise where not
all litigants are fully represented by counsel, such as under Massachusetts Rules of Professional
Conduct 1.2, 1.5, 1.14, 4.3, 6.1, and 6.5, and with Limited Assistance Representation (LAR).
Finally, the topic would include due process doctrines related to fair hearings, the constitutional
The BBA’s report, Report of the Boston Bar Association’s Task Force on the Future of the Profession , is available
at http://www.bostonbar.org/docs/default-document-library/future-of-prof-task-force.pdf; (hereinafter “BBA
Report”); the MBA’s report, Report of the Task Force on Law, The Economy and Underemployment, is available at
http://www.massbar.org/media/1246788/beginning%20the%20conversation.pdf (hereinafter “MBA Report)..
4
BBA Report, at 4.
5
Id., citing Anika Anand, Law Grads Going solo and Loving It, Jun. 20, 2011, available at
http://www.nbcnews.com/id/43442917/ns/business-careers/t/law-grads-going-solo-loving-it/#.UXgui0qUrE4.
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MBA Report, at 18.
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and statutory underpinnings of, and limits to, the civil right to counsel in Massachusetts, and the
law relating to attorneys’ fees and fee-shifting statutes.
While the proposed topic is broad, the testing can easily occur within the ambit of the
traditional essay portion of the bar examination. The addition of the topic not only would
involve no public cost or extra resources, but it also would not lead to any additional fees for test
takers. Many of the subjects identified above as components of Access to Justice are
components already tested on the bar. Landlord-tenant is part of Property, among other tested
areas, custody cases are part of Domestic Relations, debt collection cases are part of Consumer
Protection, the ethical issues are part of Professional Responsibility and the constitutional
components of due process and the right to counsel are part of Constitutional Law.
The precise formulation of essay questions incorporating these concepts is within the
province of the Board of Bar Examiners, but the subject matter of Access to Justice questions
may include, for example:
-- in a real estate transaction the contract calls for delivery of the property free of tenants,
but a tenant reports that there are conditions in need of repair in her apartment and she has a rent
subsidy to assist her with the rent; or
-- in a debt collection case, the client consults a lawyer after judgment has entered against
the client, who appeared without counsel, after an unmonitored hallway negotiation in which the
opposing lawyer insisted that the debtor owed the money and would be ordered to pay (raising
ethical issues under 4.3) despite the fact that the client’s source of income is public benefits (so
she may be judgment proof); or
-- a lawyer interviews a potential client in a divorce case that includes issues relating to
custody, child support and the division of marital assets. The client, a victim of domestic
violence, says her spouse controlled all the assets, so while she believes there is real property,
she is not sure. The potential client earns just enough money to put her over the legal services
guidelines for eligibility, but has only limited money to pay a lawyer, and wants to know if she
can hire the lawyer simply to prepare court papers and write a brief.
These are just a few illustrations of questions that could properly appear on the Bar
Examination within the list of topics currently tested. Yet the fact that so many lawyers are illprepared to handle matters in these areas suggests that the current listing of topics is failing to
communicate to law graduates and law schools the importance of education in these areas. The
addition of the proposed topic will change this dynamic without overburdening new lawyers, the
bar examiners, or even law schools. As discussed more fully below in Part II, the topics on the
bar examination impact curricular choices of students at some law schools in Massachusetts, so
the addition of the topic of Access to Justice can be expected to influence law students to choose
courses and experiences that will give them training relevant to Access to Justice.
C. The Impact on Law Schools
As with other changes to the bar examination, how law schools respond to the addition of
this topic to the Bar Examination likely will vary from law school to law school. At some law
schools, the faculty and deans can be expected to explore how to teach these topics. Some
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schools might develop, or promote, courses focused on the subject matter of this topic. Other
schools might identify where existing core courses touch on the material (e.g., landlord-tenant
within property), and give greater attention to the Access to Justice component of the core
course. Some schools might instead focus on their experiential courses, including in-house
clinics, externships, and pro bono opportunities, and label those that provide exposure to Access
to Justice experiences to allow law students to make informed choices in selecting courses and
experiences. Some schools might use a combination of these approaches. At law schools where
the bar examination has little impact on curricular choices there may be minimal impact,
although the addition of the topic likely will still impact the content of commercial bar review
courses.
Given that the public cost to this proposal is zero, and its implementation should have
minimal impact on the Bar Examiners, the potential benefits of focusing law schools and law
students on education relating to Access to Justice militate in favor of its adoption. The
Commission is striving to identify a range of ways to promote Access to Justice and the inclusion
of the topic on the Bar Examination is a tool that should not be ignored.
II.
Possible Elimination of Topics Currently Tested
The second part of the proposal asks that the Bar Examiners revisit the current list of
topics to identify whether the changing landscape of the legal profession permits the elimination
of one or more topics that currently are tested. The Commission does not propose particular
topics that might be candidates for elimination, believing that the Bar Examiners are bestpositioned to make this assessment.
The Commission nonetheless believes that the goals of preparing lawyers for the
changing legal profession and promoting Access to Justice are furthered not simply by the
addition of the new topic, but also by the reduction of the number of topics currently tested.
From our investigation of the curricular choices by law students at some Massachusetts law
schools, the following portion of the Society of American Law Teacher’s (SALT) Statement on
the Bar Exam rings true:
The Current Bar Exam has a Negative Impact on Law School Curricular
Development …
[T]he bar examination has a pernicious effect on … law school curricular development
…. From the moment they enter law school through graduation, law students realize that
unless they pass the bar examination, their substantial financial commitment and their
years of hard work will be wasted. As a result, many students concentrate on learning
primarily what they need to know in order to pass the bar examination, which often
translates into high student attendance in courses that address the substantive law tested
on the bar examination and reduced participation in clinical courses – the courses
designed to introduce students to the skills required for the actual practice of law – and in
courses such as environmental law, poverty law, civil rights litigation, law and
economics, and race and the law. As a result, the students fail to fully engage in a law
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school experience that will give them both the practical skills and the jurisprudential
perspective that will make them better lawyers.7
The Commission is sensitive to the fact that the current list comprises the careful and
thoughtful decision-making of the Bar Examiners over time. We recognize that any topic that
the Bar Examiners eliminate will be important to some practitioners depending on their area of
practice. Yet, not all potentially important topics for some lawyers appear on the current list, and
many lawyers will not ever practice in areas on which they are tested.
While the path of least resistance might be to decide against eliminating certain topics,
the Commission urges the Examiners to recognize that the length of the current list comes at a
price: students at some law schools will forego educational experiences that will better prepare
them for the realities facing law graduates today in the legal profession and allow them to
contribute to the goal of increased Access to Justice, choosing instead to take additional doctrinal
courses solely because the topics are tested on the Bar.
Conclusion
If our proposal is adopted, Massachusetts would become the first state to modify the Bar
Examination in this manner. New York has blazed a different path, adding an experiential
requirement under the label of pro bono, a path that other states are now considering. The
Commission continues to monitor the effectiveness of the New York experiment, but prefers to
focus instead on the current proposal, which we believe can be implemented more easily and
effectively.
The proposal might not only have a positive impact in Massachusetts, but may serve as
an important precedent in other states as well. As with the New York proposal, the
Massachusetts proposal can be expected to garner similar attention, thrusting our state into a
leadership role in the challenges of promoting Access to Justice and better preparing law
graduates for the practice of law. With the looming presence of the Uniform Bar Exam on the
horizon, Massachusetts’ adoption of the approach urged here might have the beneficial impact of
influencing the overall composition of the Uniform Bar Exam.
Thank you for joining us in our effort to enhance access to justice for the people of
Massachusetts for your consideration of this proposal.
Adopted Unanimously by the Massachusetts Access to Justice Commission, June 6, 2013
7
Society of American Law Teachers, Statement on the Bar Exam, at 3 (2002), available at
http://www.saltlaw.org/userfiles/SALTBarExam.pdf .
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