A Major Legal Industry Player’s New Experience: Push-back
Judy Gundersen, president of the National Conference of Bar Examiners, has had a tough few weeks. A Wisconsin attorney admitted on diploma privilege, she is the leading — if hypocritical and self-interested — proponent of everyone else taking the test. It’s doubtful her staunch support of mandatory examination arises from a genuine concern for the integrity of the profession or public protection from unfit lawyers. A former prosecutor, Gundersen knows first-hand that the bar tests neither competency nor ethics. The real issue for her is personal job security and status. If “the exam is of dubious efficacy” argument becomes the prevailing wisdom in the legal community, she is out of a very cushy position. Thus, Gundersen has spent the past weeks in a thinly veiled attempt to save her own professional perch even if it puts thousands of test takers at risk for CoVid or causes them undue financial hardship.
Gundersen’s weak effort to defend the indefensible — forcing test takers either to sit for the bar in a pandemic or wait an indeterminate amount of time to become licensed and get jobs— would be comical if it didn’t threaten the lives and economic security of thousands. As the pandemic spread, the NCBEX made no cognizable effort to come up with an effective licensing plan for new attorneys. To date it has still not put forward a comprehensive solution. In-person exams absent exhaustive, relatively expensive social distancing precautions are potential Coronavirus super-spreader events. The online versions introduced thus far have been riddled with glitches. One development company announced it simply could not timely generate a reliable means of administering the test. With some planning and accommodation for social distancing, an in-person or online exam would have been feasible. However, the NCBEX seemed not to have even considered options until it was far too late. When put to its own test, Gundersen and the bureaucracy she leads failed miserably.
Gundersen did not respond with an apology or mea culpa. Legal industry bureaucrats aren’t used to answering to anybody. The profession has its own caste system. At the top are state supreme courts followed closely by major law firms. Ethical, procedural, and other mandates are enacted by the high tribunals under heavy influence from white-shoe outfits. Though a numerical minority, the uppermost castes have the money and the clout to be the industry’s drivers. They in turn use the next group — organizations like the ABA and NCBE as well as state bureaucrats and lower-court judges — to carry out these rules. For example, boards of law examiners determine who can practice within the jurisdiction according to state supreme court dictates. The final, lowest, and biggest class is everyone else, the rank-and-file lawyers. The bottom caste is expected to be wholly obedient to their “betters” and follow all rules without comment or protest. They are presumed by members of the upper echelons to be inherently incompetent and unethical and therefore in need of constant policing; the rank-and-file should consider themselves lucky to be allowed to practice at all. Any attempt to question a court or bureaucratic rule, mandate, or determination is itself evidence of these bottom-dwellers’ very baseness.
When Judy Gundersen insisted repeatedly that everyone (except her) should be required to take the bar to become licensed — even if it meant flaunting social distancing orders in the midst of a pandemic — the last thing she expected was push-back. Even as boards of law examiners and state supreme courts issued inconsistent, confusing, and sometimes patently ridiculous mandates, they bristled at any suggestion that their solutions were ill-advised or unacceptable. After Kentucky canceled its summer sitting on less than three-weeks notice, a state supreme court justice published a remarkably condescending editorial in response to criticism of its decision. Virginia issued an announcement to its examinees that stated explicitly it invited neither dissent nor complaint. Well-placed bureaucrats like Gundersen expect no push-back from rank-and-file lawyers to say nothing of graduates who haven’t even been licensed. Thin skin is apparently a status symbol.
As a result, after the disastrous summer sittings, the NCBEX was as unprepared for the public relations fallout as it was to administer the exam itself. Even after learning of the possible exposure of in-person examinees to CoVid in at least one state, the NCBEX evinced remarkable tone-deafness by opposing an extraordinary ABA resolution calling on states to discontinue live exams during the pandemic. When that position was criticized, Gundersen threatened the applicants speaking in favor of diploma privilege — people literally afraid for their lives — with adverse character and fitness evaluations. Gundersen further accused her critics of “harassment” by pointing to a parody twitter account. This constituted a remarkable abuse of power and should have ended her NCBEX tenure. Gundersen nonetheless remains the organization president and her message still rings clear: Speak out at your own risk.
Gundersen is a professional in a position of responsibility who should be setting a positive example for bar applicants. Would it really have been so difficult for her to accept responsibility, promise to do better, and commit to delivering on that vow? She instead recoiled at the very suggestion that she was subject to criticism, doubled-down on her pro-exam position regardless of its foolishness, and threatened her most vulnerable critics for daring to voice a contrary opinion. Gundersen’s hubris is a symptom of a much broader problem within the legal industry. The top castes are so used to having unfettered dominion over the profession that they hold themselves beyond reproach and expect docile acceptance of their every mandate. Like most regulators, Gundersen believed herself entitled to act however she deemed fit with the unfettered acquiescence and unquestioned approval of the bar.
As long as legal industry regulators like Judy Gundersen aren’t subject to oversight, they have no incentive except to protect their primacy at all costs. Gundersen’s appalling sense of entitlement is one symptom of a much bigger problem.
