For some time, there has been a strong push for the licensing of lawyers on the national level rather than by state jurisdictions. In a flat world, where the internet makes a lawyer in Peoria as accessible as one down the block, it creates options for both lawyer and client that never before existed. And from a more self-serving view, it enables lawyers who are admitted to the bar in one jurisdiction to take jobs or cases in other jurisdictions without having to retake the bar exam.
The New York Board of Law Examiners supports the replacement of the state bar exam with the Uniform Bar Exam. The New York Court of Appeals has asked for comment from the bar.
The New York State Board of Law Examiners (SBLE) has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). To date, 14 other state jurisdictions have adopted the UBE, but New York would be a national leader as the first large state in terms of bar applicants to administer this test, having examined over 15,200 candidates in 2014.
Is it really significant that New York would be the “first large state” to go the UBE route? Certainly, from the perspective of state bar examiners this would matter, as it’s a leap into the abyss from which there is no return. So a bunch of small states are happy enough to take down the walls, but the real action is in the big cities, and they don’t get much bigger than the Big Apple.
But is it a wise idea? From the perspective of benefit of making the practice of law viable in an age of internet lawyers, including those inclined to scam for clients online, virtual practice, structural incongruity in the availability of lawyers locally, affordability, commoditization, and survival, as law schools continue to spew out more lawyers than society can afford, it serves some very real and legitimate purposes.
So it’s good for lawyers, especially young lawyers, but it’s for sound reasons. A viable profession cannot continue to exist if new lawyers entering the profession cannot survive and thrive. There is no incentive for a smart person of integrity and dedication to squander three years of their life, pay three years of tuition (or, more likely, suffer three years of accumulated, non-dischargeable debt), only to find themselves asking, “would you like fries with that?”
Yet, what is good for young lawyers is just one prong of the inquiry. While we go to work every morning to earn a living, we become lawyers to serve our clients. How does this contribute to our ability to fulfill our sworn function?
In its proposal, the New York Board of Law Examiners, while proposing to adopt the UBE, doesn’t quite let go of the serious concern that anyone standing in the well of a New York court have a clue about state law.
Along with administering the UBE, the SBLE has proposed that New York’s bar examination continue to incorporate a New York law-specific component. This recognizes the importance of state law, particularly in light of the thousands of out-of-state and foreign-educated applicants who seek bar admission in New York. It is imperative that New York licensure remain internationally recognized as a valuable legal credential. The proposed New York law exam (NYLE) segment would consist of 50 multiple-choice questions, tested for one hour on the second day.
While non-lawyers and more than a few law school grads don’t see why state law matters, as if law is law and the details go away with a shrug, anyone who actually practices law knows that the devil is in the details; so long as we have state legislatures crafting state laws, the law will differ from state to state. Anyone who thinks this is inconsequential has never practiced law.
That said, a diligent lawyer who is willing to do the heavy lifting of researching law in each jurisdiction to suit the demands of a case or client can overcome this distinction fairly easily. Researching law for differences between jurisdictions isn’t hard. It just takes time. It takes the willingness to put in the effort. It requires lawyers to do the work rather than just slough it off and assume that it’s all “close enough” that nobody will notice.
To accommodate this reality, New York will include a 50 question, one hour, New York-centric piece to the bar exam. But is this adequate to serve its purpose? It doesn’t strike me as particularly rigorous, and if the bar examiners want some assurance that lawyers admitted to practice in New York know its law, then this seems to be a bit underwhelming.
On the other hand, if the purpose is to break down jurisdictional borders in recognition that the practice of law now extends beyond state borders, then this remains a sufficient stumbling block to making that happen. Applicants who have passed the UBE elsewhere will still have to sit for this test, and can’t be admitted until they do (plus pass the other New York requirements, like the 50 hour pro bono requirement instituted by the Chief Judge’s fiat). While the New York segment will be offered four times a year rather than two for the full bar exam, that doesn’t help a lawyer with a case next week in Bronx Supreme.
There are points on both sides of this initiative, valid points that demand some serious thought. But regardless of which side you favor, one thing appears clear: the proposal is half a loaf, offering the potential for universal admission, but then imposing a burden of passing a New York segment that makes that potential too distant to serve its purpose.
This raises an overarching question. If New York is going to be a leader in the cause of universal admission, should it make the hard choice of whether to go all in, or retain enough of a barrier to admission that the potential is never really met?