The Uniform Bar Exam Debate

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Summary: New York has recently announced that it will adopt the uniform bar examination, leading many to wonder whether other states will follow.

For close to the past ten years, the primary reason a uniform bar exam had not been implemented across the country was because none of the country’s larger jurisdictions had embraced it. However, according to the National Law Journal, New York has now adopted the standardized exam, which will likely trigger a movement toward a national bar exam that will allow prospective attorneys transfer their scores across states.

  

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Last October, New York was considering the switch.

Gregory Coleman, the president of the Florida Bar, said, “Obviously, New York adopting the uniform bar exam has accelerated this issue — not only for Florida, but for a number of other states. I think you will see the Northeast fall and go to the uniform bar exam, and then you’ll see an acceleration of other states adopting it.” Florida is considering a national bar exam, although many are concerned about increasing competition for jobs.

New York was the 16^th state to adopt the test, which is administered by the National Conference of Bar Examiners. Beginning with the 2016 examinations, the new test will be used. Previously, smaller jurisdictions, such as Kansas, which has no more than 400 bar exam takers each year, used the exam. Missouri was the first state to adopt the uniform bar exam, the New York Times reports. In contrast, New York has roughly 15,000 individuals sit for the bar exam each year.

The remaining states that use the uniform bar exam are Alabama, Alaska, Arizona, Colorado, Idaho, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington and Wyoming,

Jonathan Lippman, the chief judge of New York, announced the decision on May 5. He expects “…that the UBE will become the standard throughout the country.”

As for the next states to adopt the test, it appears Vermont and Iowa may be the 17^th and 18^th jurisdictions to use the uniform bar exam. In February, the Vermont Board of Bar Examiners advised its state Supreme Court to adopt it, and in March, the Iowa Board of Law Examiners determined that the portability of scores would benefit those taking the test. In 2010, both the American Bar Association and the Conference of Chief Justices endorsed the uniform exam. The Conference of Chief Justices represents high-ranking state judges.

Erica Moeser, the president of the National Conference of Bar Examiners, said, “We’ve reached a critical mass now. For states that haven’t explored the uniform bar exam, they can hear from people who have been using it for several years and who can speak to how it’s working for them.”

How do you bounce back if you failed the bar exam?

The test includes three sections that test one’s knowledge of federal law: The Multistate Essay Examination, the Multistate Performance Test, and the Multistate Bar Exam. The Multistate Essay Examination is six 30-minute questions; the Multistate Performance Test is two 90-minute analysis questions, and the Multistate Bar Exam is a 6-hour test comprised of 200 multiple choice questions, according to the Wall Street Journal. Most jurisdictions already require test-takers to pass two or more of these sections.

Each jurisdiction will be able to determine its own pass cutoff scores. Test takers may transfer their scores between uniform exam states. Therefore, a student may fall an exam in one state, but pass in another. The states will also determine how long the scores are valid.

A study by the national conference concluded that 18 percent of uniform exam transfers were from jurisdictions in which a score was too low to those where the scores were a passing rate. Moeser commented, “That can be a real plus for someone seeking that first legal job.”

Some states are concerned, however, that their own state law is not tested on the uniform bar exam. New York, along with several other states that use the uniform test, will have a supplemental test on state law that will be taken online.

Gayle Murphy, the senior director for admissions at the State Bar of California, said that this was a major point the state must consider. Two of California’s four test sections are on the laws of California. Even if the uniform bar exam were adopted, graduates of the state’s 26 California-accredited or unaccredited law schools would not be eligible for admission in other states because their law schools were not accredited by the American Bar Association.

In February, many New Yorkers expressed concern about the uniform bar exam.

The bar exam lasts three days in California, which is one day longer than the uniform bar exam. In March, the state’s Committee of Bar Examiners recommended cutting the test down by one day. Murphy said, “Obviously, the [uniform bar exam] is something we continue to monitor. But at this point, the direction that we’re looking at is whether California can do what it wants in two days rather than three.”

California is the second largest bar exam state. Over 13,000 hopeful attorneys sit for the exam each year. Following California are Florida, New Jersey, Texas, and Illinois. Next year, the Florida Bar will advise its state Supreme Court about whether the uniform exam should be adopted. New Jersey and Texas are not considering adopting the test.

The Illinois Board of Admissions to the Bar is set to create an advisory committee on the test and may make a recommendation next year. Regina Kwan Peterson, the director of administration, said, “The board looked at it before several years ago, so this is more of a revisiting of the topic,” she said. “The news of New York’s decision just reinforced the board’s interest in it.”

The dean of Northwestern University School of Law, Daniel Rodriguez, said that most educators support a national bar exam, since it would reduce the pressure students feel to learn certain aspects of state law. Uniformity would especially be beneficial in schools that send graduates to practice in other states. Roughly half of Northwestern’s graduates take bar exams in other states, especially in California and New York.

Rodriguez said, “I’m keeping my fingers crossed that the uniform bar exam in New York will encourage more states to adopt the exam and help break down the long persistent barriers that keep lawyers from moving around.”

Erwin Chemerinksy, a renowned legal scholar and Dean of the University of California Irvine School of Law, said that the current bar exam system is “inefficient, burdensome, and, frankly, unjustifiable.” He encouraged California to adopt the uniform bar exam, commenting that medical professionals take one national test instead of individual state exams.

A concern about competition also complicates the adoption of a uniform bar exam for many states. The New York State Bar Association opposed the test for fear that outside attorneys would overpopulate the state. In a 2014 survey, although 61 percent of Florida Bar members favored allowing attorneys to practice in their state without sitting for the bar exam, 77 percent expressed desire to leave or join an out-of-state bar without taking another exam. Many members were concerned that attorneys who live in Florida for the winter would practice there part-time, hurting the business of other attorneys. Additionally, they expressed concern that they would be unfamiliar with Florida law.

However, Florida risks isolating itself if it rejects the uniform exam while other states embrace it. Coleman said, “From a law student’s perspective, the uniform bar exam is a great thing,” he said. “But it’s a difficult issue for our members to deal with. We’re looking at it carefully, but with caution.”

Source: National Law Journal

Photo credit: bestmultis.com, palmbeachdailynews.com (Coleman), articles.latimes.com (Chemerinsky)