After 3 years of school, every law student must face one more right-of-passage: the bar exam. With this test comes the anxiety-provoking question, “In which state should I sit for the bar exam?” Many lawyers agonize over this question for weeks because, unlike other professions, the practice of law is not mobile. A blissful law school graduate may pass the Missouri bar exam, be duly sworn, and walk out with license in hand, only to be offered a job in California. Now, because the bar is only offered twice a year, the new attorney is forced to explain to the potential employer that it will take another 6 months before he can even take the California bar (which will once again cost a small fortune), after which it will be another two worry-filled months before he receives the results and can hopefully tell the prospective employer he passed and can now – 7-8 months later – practice law in California.
This is the employment world facing new law school graduates: pass the 2-day bar exam and hopefully find a job within the confines of that state; but if there is a job offer in another state, then again pay to take (and hopefully pass) that state’s exam months later. What’s worse, for those states that do offer reciprocity (ability to be admitted to another state without taking the complete bar exam), it is often limited to certain specified states, and it is usually only offered to attorneys with many years of practice under their belt.
But is this restriction necessary? Should new lawyers be required to endure the tortures that come with taking multiple bar exams just to practice law in another state? What benefit does such a requirement really provide?
Over the past several years the National Conference of Bar Examiners (NCBE), multiple bar groups, and many educators have all been advocating for a different protocol when determining who may practice law in a specific jurisdiction. This advocacy seems to finally being paying off, as the Uniform Bar Exam (UBE) has been adopted by 16 states, including most recently Kansas and New York.
The Uniform Bar Exam
The UBE is developed and coordinated by the NCBE, and is conducted over two days – generally the last Tuesday and Wednesday of February and July. The first day consists of the Multistate Essay Examination (MEE) and two Multistate Performance Test (MPT) tasks, while the second day is composed of the Multistate Bar Examination (MBE).
The uniform exam includes questions about general principles of law. Specifically, the MEE is made up of six 30-minute essay questions designed to test an examinee’s ability to write and communicate effectively. The MPT which consists of two 90-minute essay-style tasks, such as writing a memo or a letter to a client, and includes a basic file of information (what exactly the file is composed of varies depending on the task the examinee is asked to perform). It does not test substantive legal knowledge; rather, it is designed to test the examinee’s ability to use fundamental lawyering skills every new law school graduate should have by creating a realistic situation and task any lawyer should be able to accomplish, regardless the area of law that is being utilized. Thus, the MPT is a step away from standardized tests – a welcome shift for many legal writing professors. Finally, the MBE is a 6-hour exam composed of 200 multiple-choice questions. It is administered in two 3-hour sets, each consisting of 100 questions.
While the UBE has only been adopted by 16 states, many jurisdictions still utilize at least one of the UBE’s three test components. Specifically, the MEE is administered in 31 jurisdictions across the country, while the MPT is used by 41 jurisdictions in the U.S., and the MBE is actually administered by 49 states in the country (Louisiana being the only state not to utilize the exam because it follows a civil law system which is very different from the law followed in other states).
Why Make the Legal Profession ‘Mobile’?
It is certainly true that moving toward a more nationally coordinated system of licensing for the legal profession would be a huge benefit for new practitioners when looking for employment immediately after finishing law school. However, that is not to say that the difficult job market facing graduates is a good reason to create a portable law license – but that also does not mean that an attorney’s mobility is not beneficial to clients and the legal profession in general.
In modern times, the legal playing field does not simply stop at a state’s border; rather, it has become global, with lawyers often handling complex cases that involve multiple states and countries. Individuals and companies live in a mobile and interconnected society, doing business with those in other states and countries across the globe. The practice of law itself has become more federal, and even more global. Thus, a portable law license will benefit the client by bringing the legal profession into the modern era of multistate and multinational practice.
However, opponents seem to have 2 major concerns: (1) the absence of local law test questions; and (2) the NCBE taking control of the bar credentialing process. Both concerns are without merit.
Addressing the Concerns
- Testing Local Laws
All through law school, I was repeatedly told that I was not, in fact, learning the law; rather, I was learning “how to think like a lawyer,” which is true. I was learning how to spot an issue, how to research and find the law, how to analyze the facts of a given situation in light of the law, etc. The reason for this is because the law is constantly changing in some manner, whether by legislation, judicial interpretation, technological progress, etc. (that is why law students sell back their textbooks at the end of the year – at a fraction of what they paid for it! – the law in those textbooks will become outdated very quickly). And the reality is no matter how familiar an attorney may be with a specific area of law, that attorney will always confirm their understanding of the law before applying it. Thus, it seems misguided to analyze the bar exam as a means of testing an examinee’s ability to memorize local laws. Instead, the bar exam should be seen as an examination of a person’s ability to “think like a lawyer.” Additionally, when evaluating an examinee, it is important to recognize that the bar exam is really a test of whether the individual is intellectually capable of practicing law, not whether the examinee is practice-ready.
Furthermore, from a practical standpoint, because 49 states have adopted the MBE, the use of a mere 3-6 essay questions to test a law school graduate on local laws – which are generally learned once the graduate has actually started practicing – will not make the graduate practice-ready and is not a worthwhile evaluation of their knowledge.
In addition, it seems unnecessary, and almost archaic, to test a graduate on jurisdiction-specific laws when the ubiquitous nature of online research makes such local laws accessible to all with a few keystrokes. However, if a state believes jurisdiction-specific testing is necessary, then that state has option of creating and including additional components in its admissions process which can assess a candidate’s knowledge of the local laws, such as a seminar or separate test. Half of the states that have adopted the UBE have already done so. For example, Missouri requires applicants to take the Missouri Educational Component Test (MECT), while New York applicants will be required to learn about New York State law by taking an online course which includes hours of recorded lectures and a short multiple-choice exam.
- The NCBE’s Power in the Bar Admission Process
A state’s fear that it will lose its ability to monitor and control the admission process is unfounded. While “the UBE will be uniformly administered, graded, and scored,” each jurisdiction will still have complete control over numerous other policies regarding both the examination process and the admission process (including the above mentioned assessment of jurisdiction-specific legal knowledge). As the NCBE explains, each user jurisdiction will continue to independently:
- decide who will actually be eligible to sit for the exam and who will be admitted;
- determine the minimal educational requirements;
- determine character and fitness requirements and passage;
- decide how many times an applicant can retake the exam;
- grade both the MEE and MPT components of the exam;
- determine whether and how to accept MBE scores from other jurisdictions for admission;
- set the passing score; and
- decide how long the incoming UBE scores will be accepted.
Thus, although the NCBE will have some power with regard to the bar examination process, this does not diminish the control each jurisdiction retains in the process of determining bar admission and it certainly does not warrant a jurisdiction’s refusal to adopt the UBE.
When a jurisdiction refuses to adopt the UBE based on alleged concerns regarding either testing of jurisdiction-specific laws or control in the admission process, it is more likely that the opposition stems from concern over “local pride.” However, a state’s apprehension over giving up “individuality” should not be such a hindrance to progress in the legal profession.