Posted on Law Office Study Program Blog / Personal Injury Blog / Racist History of ABA Preventing Lawyers Without Law School

As part of our research, we uncovered some interesting evidence that the ABA push for standardized law schools either directly, or indirectly prevented blacks from becoming lawyers. Let’s look at the racist history of the American Bar Associated as it related to Law Office Study, traditional law reader type programs.

1878-Enter The American Bar Association

The American Bar Association (ABA) was formed in 1878 by 100 lawyers hailing from 21 states. In 1925, African-American attorneys created ABA rival, the National Bar Association. Black lawyers did so because the legal force known as the ABA would not allow blacks to become ABA members. (Today, the National Bar Association has 60,000 members and 84 chapters).

• Arguments Over ABA Selective Discrimination

Modernly, some older ABA members assert the ABA’s “experience-based” dues are age discriminatory. Basically, they argue, the ABA punishes success by making elders pay higher dues because they have been in practice longer.

These elderly victims argue these discriminatory rates have zero economic justification since the median new lawyer starting pay in 2019 was $155,000 per annum. The ABA’s own Model Rule 8.4(g) clearly bars age discrimination as professional misconduct for practicing lawyers. Using William’s arguments, since these are mostly, probably white males, they should pay more as a form of reparations, for which they can never be forgiven, right?

• The ABA’s Rage Against Reading Law

As we already know, until the middle 1800s, pupils generally learned law using a combination of independent study and apprenticeship. We already know the ABA doesn’t like competition in legal education. But when the ABA called for a “national, uniform code of ethics,” that was a good thing, in my opinion. But their pressure on the states to make it harder for the poor to practice law is palpable.

For example, as recently as 2015, Wyoming ended its version of the law office study program:

• Wyoming Abolished Traditional Law Office Study in 2015

“This matter came before the Court on its own motion following action taken by the Wyoming State Legislature. During the 2015 legislative session, the Legislature removed from Wyo.Stat.Ann. § 33-5-105 the “law office study” method of qualifying for admission to the Wyoming State Bar. Given that statutory amendment, this Court finds that related provisions should be removed from Rule 9 of the Rules Governing the Wyoming State Bar and the Authorized Practice of Law. It is, therefore, ORDERED.” [Emphasis] (See In the Matter of Amendments to Rule 9 of the Rules Governing the Wyoming State Bar and the Authorized Practice of Law PDF).

• ABA Discrimination Against Blacks Knowing How To Become A Lawyer Without Going To Law School?

ABA’s old ethics seem far away from mine. In 1912, three black lawyers “accidentally” received memberships into the ABA. After a lot of hooplas, they got to keep their bar memberships. In response, the ABA amended their application, seeking racial proof of applicants and their genders. It was not until 1943 that the ABA declared these factors moot. (Geraldine R. Segal, Blacks in the Law: Philadelphia and the Nation (1983) 118, 17-18).

Since that time, the ABA has pushed hard for states to abolish their clerkships and law study programs. Furthermore, the ABA has a stranglehold over state judges, by FIAT, having taken away a court’s right to examine bar competency themselves.

Now, if you didn’t attend an ABA-accredited school, you would not be waived into another state’s bar either. Wow! The National Conference of Bar Examiners (NCBE) makes up most component student testing examinations.

But the civil law territories of Louisiana and Puerto Rico use their own Roman civil law tests. Modernly, ABA students spend a ton of money, attend classes, take BARBRI, PMBR, and other courses to learn how to study for and pass their bar exam. Few people are on a law study program, and fewer of those will pass the bar exam at all.

Modern Allegations The Standardized Bar Exam Is “Racist”

At least one white lawyer argues modernly that since blacks have lower law Student Aptitude test scores (LSAT) and score lower on the bar exam, the test itself is racist. (Source). Modern law students and professors pushing such an argument seem to have confused the American Bar Association’s (ABA) long gone past with the actual, modern state “Bar Exam” test, two distinct entities. Jews and Asians score higher than white people on both exams.

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  Is A Bar Exam TEST Itself Racist?

Jessica Williams: Senior Diversity Editor for the California Law Review and member of Berkeley Law Class of 2021, argues: “Many outside the legal profession believe abolishing the bar exam would render vulnerable future clients to predatory attorneys. This is unlikely.” (Jessica Williams, Abolish the Bar Exam, Calif. L. Rev. Online. (Oct. 2020)).

• Williams Goes On To Assert:

ALLEGATION: “There is no indication there were more shady lawyers preying upon innocent citizens before standardized bar exams, even though colonial-era lawyers did not have to receive law school training before practice.

Reply: It would be impossible to know for sure anything Williams says has merit, as her opinions remain unsupported by meritorious evidence. (Emotions don’t equate with facts)

• As discussed above, law school training in the 1700s-1800s was only possible in one or two counties in a few states, with no court recognizing academic training substitutes for apprenticing coupled with independent study.
• True, no universal, standardized legal “test” existed. None does today unless the state adapts their ABA version.
• Passing the bar was generally merit-based, using a combination of independent study and typically apprenticeship.
• With very, very few exceptions, the court did not let strangers pass the bar.
• After the ABA was invented, some states allowed an academic “privilege” waiver to avoid some qualified student’s taking the standardized exam.
• Courts maintained historical rights to waive bar candidates into the well.
• Black people can and do pass the bar exam.

A candidate’s original bar exam was usually oral, and their

“… commitment to social justice, cultural competency, a sense of fairness or equity, or any number of traits that range from useful to integral to success in the law, a service industry” was determined by character witnesses, usually, a supervising attorney. Sometimes a fellow lawyer they studied under or opposing counsel on a case would testify as to good character.

Legal Apprentices Did Not Receive Pay

ARGUMENT: “As with apprenticeships before bar examinations became standardized, applicants would be able to begin working for pay while learning real skills needed for their work.” [Emphasis].

Reply: Willams equates historic law study reading with “working” ( the student will “begin working for pay“)? Again, law apprentices never received payment to learn a skill. Apprentices and their families paid the lawyers or a grandmaster to teach the law. Back then, anyone, including apprentices, could work for pay by finding a part-time job.

• Should We Throw The Baby Out With The Bathwater?

ARGUMENT: “If states abolish their bar exam, however, they can cast off a racist history that intentionally leaves out the diverse legal professionals they claim to want to draw in.”

Reply Objection. Lacks foundation. Objection. Argumentative. Objection. Hearsay. Objection. Assumes facts, not in evidence. No evidence exists the bar exam is racist that we could locate.

Selective Outrage Is Not A Valid Basis For Canceling Tests

Selective outrage has become popular on our college campuses. Here are a few examples.

• Ex: Walls protecting politicians and bureaucrats are good, but border walls protecting national sovereignty are “racist.”
• Ex: Saying all white people are racist is ok, but it’s racist to describe another generalized group similarly.
• Ex: Some segregationists were ABA leaders; therefore, the ABA is racist.
• Ex: Greeks invented democracy, but they owned slaves; therefore, democracy should be abolished.

Written exams are hard, and I agree that apprenticeship programs should come back. Helping black people receive the lower education they need to pass the exam, as with all students, will require a motivated, dedicated teacher.

At Least One African Chief Blames Tribalism For Non-Merit Based Outcomes, Encouraging A MERIT-BASED System

In modern united Africa, pundit chiefs argue against abolishing the merit-based systems advocated AGAINST by William’s piece, stating the only fair system is a“merit-based” system. (“As a rule, ethnic or tribal affiliations should play no part in filling civil‐service posts in any country. The only workable basis of selection is individual merit.“). (Source – NY Times, African Chief Explains Tribalism). I would venture to say that far fewer legal malpractice claims would arise if students had a master who “made that mistake before.” If anything, creating ABA-accredited law schools, treating law as an academic course rather than a profession, has kept minorities and poor people out of more affordable apprenticeships leading to a non-cookie cutter education while allowing for non-group think.

ABA Presidents Known To Support Segregation

• (No. 9) Thomas Jenkins Semmes (1824-1899) He was the 9th president of the American Bar Association 1886-1887. (Law School Grad).
• (No. 15) John Randolph Tucker (1823-1897) (Law School Grad).

Under the ABA System, Abe Lincoln Would Have Never Been A Lawyer??

True. U.S. president, Abe Lincoln, would have never been a lawyer under our current ABA (He would only be eligible under the California LOSP system). This is because Abe’s family was destitute. In fact, Abe would have been ineligible under the English Inns system unless he was sponsored by someone or adopted by the gentry, perhaps.

Past ABA Presidents Who “Read” Law

• (No. 1) *James Overton Broadhead (Term: 1878–1879 (Some College + Law Office Study) *First ABA president and Southerner opposed segregation.
• (No. 2) Benjamin Helm Bristow (1879–1880) (Some college + Law Office Study)
• (No. 3) Edward John Phelps (1880–1881) (Some Law School + Law Office Study)
• (No. 4) Clarkson Nott Potter (1881–1882) (Some college + Law Office Study)
• (No. 6) Cortlandt Parker (1883–1884) (Law Degree + Law Office Study)
• (No. 7) John White Stevenson (1884–1885) (Some college + Law Office Study)
• (No. 10) George Grover Wright (1820-1896) (No college + Law Office Study)
• (No. 11) David Dudley Field II (1805-1894) (Undergrad + Law Office Study)
• (No. 12) Henry Hitchcock (1829-1902) (Some college + Law Office Study)
• (No. 13) Simeon Eben Baldwin (1840-1927) (Some Law School + Law Office Study)
• (No. 14) John Forrest Dillon (1831-1914) (Medical Degree + Independent Law Study; Dillon didn’t clerk or read law under an attorney or attend law school)
• (No. 16) Thomas McIntyre Cooley (1824-1898) (Abolitionist) (Law Office Study)
• (No. 19) James M. Woolworth (1896–1897) (Undergrad + Independent Study)
• (No. 22) Charles Frederick Manderson (1899–1900) (Independent-Study)
• (No. 27) Henry St. George Tucker, III (1904–1905) (Undergrad Law Courses + Law Office Study)
• (No. 28) George R. Peck (1905–1906) (No Undergrad + Law Office Study)
• (No. 30) Jacob M. Dickinson (1907-1908) (Masters + Some Law School + Independent Law Study)
• (No. 31) Frederick William Lehmann (1908-1910) (Undergrad + Law Office Study)
• (No. 32) Charles F. Libby (1909-1910) (Some Law School + Law Office Study)
• (No. 35) Frank B. Kellogg (1912-1913) (Independent Study aka “Reading Law”)
• (No. 36) William Howard Taft (1913-1914) (Law Degree + Independent Study)
• (No. 39) George Sutherland (1916-1917) (Some Law School + Independent Study)
• (No. 44) Cordenio A. Severance (1921-1922) (Some Law School + Law Office Study)
• (No. 45) John W. Davis (1922-1923) (Read Law then earned Law Degree)
• (No. 48) Chester Isaiah Long (1926-1927) (No Undergrad + Independent Study)
• (No. 50) Silas H. Strawn (1927-1928) (No Undergrad + Independent Study)