I Failed the Bar Exam: Am I Fired?

May 18, 2009 by  

advice-failedbar-featureQ:  I think I’m screwed, but please confirm or deny: I’m a second-year associate at a V10 firm and last Fall, I transferred to the firm’s San Francisco office from Chicago.  By some miracle, I wasn’t laid off when the firm sacked a ton of associates in January and then I left right after to take the February CA bar exam.  And I just found out that I failed it.  I didn’t feel like I aced it for sure when I took it, but I didn’t see this coming and literally almost threw up when I found out. Work has definitely been slow at the firm, especially for me since I didn’t really know anyone as a lateral and then disappeared to take the bar exam.  Now that I’ve failed it, I’m paranoid that I’m going to get fired. Apparently my firm’s policy is to give a second chance for bar failures, but in this economy, that seems unlikely (and I’m a litigator).  Be brutal if you have to: Am I fired?

A:  Well, yes. You asked for the brutal version, sorry.

You’re right—most big firms do hand out a one-time Get Out of Jail Free do-over card for bar failures.  But you’re even more right that in this crap economy, all bets are off—especially on any sort of perk or practice involving anything even remotely resembling generosity of spirit (or more to the point, wallet).  You just gave them—or, rather, the fine state of California just gave them—a perfect excuse to trim headcount without having to scramble for some lame, fake “performance-related” justification. You might as well have threatened the managing partner’s wife with a sling blade at the firm’s holiday party. They’ll say that they think you’re great, and they wish that they didn’t have to, blah blah blah, but they cannot justify employing an attorney, especially a litigator, who doesn’t possess the required credentials to practice law in this jurisdiction blah blah blah.  With any luck, you’ll walk away with a few months’ severance.  Fight for at least three.

Now, before you get hysterical, keep a few things in mind:  One, the California bar exam is crazy, insane difficult—arguably the hardest in the country (chime in, New Yorkers, to disagree). So, don’t beat yourself up too much for failing it—you’re in surprisingly better company that you’d think.  Two, if you actually do want to stay at your firm, try to negotiate with them a bit—see if they’ll bump your salary back (well, if they haven’t already) until you pass, or let you work on a contract basis until the next bar exam, or stick you in a non-litigation department. Can’t hurt to ask.  If that doesn’t work, just start trolling mid-size and smaller firms and really sell your Big Law experience.  And yes, that includes looking for doc review work; you can’t afford to be picky when you’re competing with hordes of laid-off Big Law juniors who are certified to practice in California. In the meanwhile, sign up for the July bar exam (and start studying now, obvs) and think of the next few months as a temporary gig until the Fall—when the July bar exam results come out.

That all said, you’re not fired yet.  So, enjoy the Big Law life (i.e. salary) while it lasts, keep your head down and proceed with business as usual.   At the very least, collect as many contacts—and office supplies—as you can, and hope for the best.

Good luck!

Need advice?  Email our Sweet Hot Counsel at counsel@sweethotjustice.com.


21 Responses to “I Failed the Bar Exam: Am I Fired?”

  1. Anonymous on May 18th, 2009 11:09 am

    No offense to any bar takers/passers in IL, but the IL bar exam is a JOKE compared to Cali. Whole different ballgame.

  2. El on May 18th, 2009 1:19 pm

    California is the hardest bar exam in the country, period. There’s a reason the pass rate is less than 50 percent.

  3. Bill Dugan on May 18th, 2009 4:23 pm

    Hey, I took the NY Bar and passed it, but I was already a member of the West Virginia bar. Why don’t you tell the firm you’ll be willing to move to Illinois or whereever they need new associates? This way, your experience won’t go to waste and you will have a shot at passing a bar exam you can handle.

  4. Anonymous on May 18th, 2009 5:28 pm

    Maybe just transfer back to IL?

  5. sls67 on May 18th, 2009 11:19 pm

    Take heart in the fact that Kathleen Sullivan failed the California bar a few years ago, and she wasn’t fired – of course, she had just been the Dean of Stanford Law School, et cetera, et cetera – (don’t bother dissing SLS – Ms Sullivan is smarter than you, or me, or just about anybody else who reads this blog)

    In other words, why don’t you BigLaw washouts think about practicing law (i.e., representing real people) and go into practice for yourselves? It’s fun! Downside – you almost certainly won’t make big bucks. Upside – you have the chance to have a life, and you are not likely to be among the few who make big bucks in BigLaw, anyway

  6. Southern Lawyer on May 19th, 2009 11:26 am

    My advice would be to start working your ass off! If you want to stay there you need to make yourself more of an asset. They might still fire you, but if you aren’t producing you’ll be fired for sure.

    We’ve had someone fail the bar in our firm before. They did not get fired but, I work in a small firm by NY standards. Then again, if that is your firm’s policy (which A LOT of firms will not do!) then they may not fire you…if they have that policy to begin with than it sounds like they are half-way decent people. Also, everyone knows the Cali. bar is difficult. I’m sure thats WHY they have that policy.

    Still my advice would be to not give them a reason to fire you…

  7. Eileen DeBonis on May 19th, 2009 4:06 pm

    If I were you, I’d try and plead for a second chance. That way, if they turn you down, you could maybe negotiate a better severance package. You picked a bad time to shoot blanks. It’s not a good time to get cocky, either, though, so you should talk to an attorney.

  8. Alex Hump on May 19th, 2009 5:51 pm

    I agree with Eileen (a first). Throw yourself at the mercy of the firm. Who knows, you may strike gold. After all, not all of the partners passed their first time out of the box. I’ll bet at least one of those bald eagles failed at least 2x.

  9. m on May 20th, 2009 8:45 am

    promissory estoppel- did you move BECAUSE you had two chances to take the bar? (answer: of course you did!)
    Make a big deal out of it, maybe you won’t get fired. At least you stand on more solid ground when asking for severance.
    If you do get fired, think of this: you’ll be unemployed, you’ll have tons of time to litigate this in court! Yay!
    p.s. litigation costs shouldn’t be TOO bad- there are such things as libraries still.

  10. David on May 20th, 2009 11:21 am

    You have to pass the July California bar – meaning you need time to study, which can be hard while working. What about asking the firm for an unpaid leave of absence until July, then returning to work? Depending upon the personalities involved they may go for it, you get the time off you need to study; if not, it may give a good impression and lessen the chance of being fired. If they later decide to terminate you, you can negotiate severance then and will hopefully have passed the CA bar.

    If you continue working and fail again, you will be fired, and will then be thinking “if only I’d taken more time off to study…”.

  11. Rufus on May 20th, 2009 3:10 pm

    If youre a guy, your screwed. If youre a woman, getting screwed is the answer. If you hump a partner or 2, they’ll have to keep you on.

  12. LALaw on May 20th, 2009 4:48 pm

    The reason the CA bar has such a high fail rate is they allow people who didn’t graduate from accredited law schools to take it. The Louisiana Bar is actually the hardest–lower pass rate than NY usually, and it consists of 3 FULL days of essays on law that very few people learn in law school since it’s all Napoleonic Code based.

    Oh, and yeah, you’re totally fired. Firms can’t afford to keep on glorified clerks when they’re supposed to be attorneys.

  13. Alma Federer on May 23rd, 2009 2:51 pm

    Rufus, what a dumb name that is. Usually a dog is named Rufus. Your answer is not helpful, since women don’t usually go around screwing men to keep their jobs.

  14. Rufus on May 26th, 2009 7:41 am

    I am the 40 year old beefcake from Gossip Girl. Lots of kids will be named Rufus in the next couple of years.

  15. noway on June 29th, 2009 10:16 am

    “…since women don’t usually go around screwing men to keep their jobs.”

    Lol. Tell that to all those stay-at-home moms and, come to think of it, even some of the female lawyers I worked with.

    I knew at least three women at a firm who made partner while on their backs for equity partners, and I didn’t even give enough of a sh-t to actually pay attention–those instances were just so blatant you could not miss it. My guess is there are a *lot* more out there.

    Women trade sex for goodies. That is just how it is.

  16. Andy on June 29th, 2009 2:06 pm

    I think “noway” is jealous that he did is not gettin any piece of this female legal action, but guess what–any female lawyer that would sleep with a partner in all likelihood isn’t worth sleeping with anyway, so don’t be jealous. There is far better female action outside of the profession, trust me.

  17. NJ on July 8th, 2009 12:44 am

    You “almost literally threw up.” How does one do that?

  18. Klobberhuas on January 18th, 2010 10:08 am

    Female lawyers worth sleeping with? Maybe if you look like Paul Giamatti.

    To the OP, I failed the NY bar and I was screwed. I passed the PA bar, it was harder than the NY bar. Look on the bright side though – it’s normal to get laid off these days. You can go outside the Cali market and hock your big firm experience and say you were laid off for economic reasons.

  19. um no on January 18th, 2010 10:56 am

    at no time in the history of the earth has the PA bar been harder than the NY bar. seriously.

  20. JDJ on September 20th, 2010 12:28 pm

    For all those saying it’s the non-aba bar examiners which decreases the bar exam pass rate in California.


    “Summary statistics compiled by the National Conference of Bar Examiners show that when considering only graduates of ABA-accredited schools, the average pass rate for the years 2003-2006 was 54.5% — 8.9% lower than the pass rate for Florida — the next lowest “large population” jurisdiction.”

  21. Jonathan H. on October 15th, 2010 2:48 pm

    I recently took the CA Bar exam this past year. Coming from Whittier college (usually considered to be a “lower tier” school), I along with my fellow classmates enrolled in Barbri’s program. I DO NOT SUGGEST THIS PROGRAM FOR ANYONE. The course material is super dry and is extremely costly. I personally suggest using supplements online that are a much cheaper way to go. The majority that have good reviews work really well. I used these outlines called “Breeden’s Attack Sheets” which worked pretty well for me…. 🙂

    Hope this helps.

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