Uniform Bar Exam?

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?



24 thoughts on “Uniform Bar Exam?

  1. Edward Wiest

    Having had some experience in taking bar exams (multistate and NY multiple choice/essays in 1979; MPRE and NJ essays 1985 (multistate waived); MA procedure/evidence 1986 (as then required for admission by “waiver”)), I have grave doubts about the utility of the current examination regime, which New York’s flirtation with the UBE would do nothing to satisfy. Back in the age of John Adams, courts examined the tyros who had read law to ensure that the new lawyers admitted to practice had some competence to act as advocates before the judges who actually conducted the exam. The modern bar exam (at least going back to the introduction of the multistate some decades back) really does nothing more than provide a gloss that law school graduates are capable to act as transactional counselors, and asks them to do so (three hours to respond to unconnected problems on a closed-book basis) in a manner which would be deemed malpractice if it were done for paying clients. The problem has been there for a long time (if you don’t think so, look for William Douglas’ recollection of his time working for a bar review course in the 1920’s in one of his autobiographies), but neither a law degree nor a “pass” on the bar exam is any proof of prospective competence. Indeed, even the one “practice” oriented exam I took, for admission by waiver into Massachusetts essential required little more than having read the Federal criminal and civil rules (adopted in great part verbatim in the Commonwealth) and a quick scan for any unusual rules of evidence (e.g., Massachusetts’ variation on the dead man’s rule–which I have never seen applied since as a business litigator in Massachusetts courts). It’s fair to say I was no more competent (without assistance or mentoring) to appear before Massachusetts state courts on the day after I was sworn than I was to appear in Federal court when I got my Southern District of New York ticket by presenting my New York State papers and the appropriate proof of “good character” back in the 1980’s.

    Notwithstanding all the current hue and cry, we’re stuck with the current system whereby lawyers are deemed “qualified” solely by means of having attended an appropriately-blessed law school (likely useful) and passing a test having nothing to do with the way law is actually practiced. The only even mildly workable proposal I’ve seen (since the economics of the American system does not permit some form of mandatory apprenticeship such as the (tottering) Canadian articling system) is the New York demand for 50 pre-admission pro bono hours–which would effectively require all law schools to put hands-on clinical training into the curriculum. Adoption of the Uniform Bar exam is only working at the edges. The Bar and the public need a rethink of the entire qualification protocol–but I’m not holding my breath.

  2. N

    “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. ”

    “Notwithstanding all the current hue and cry, we’re stuck with the current system whereby lawyers are deemed “qualified” solely by means of having attended an appropriately-blessed law school (likely useful) and passing a test having nothing to do with the way law is actually practiced.”

    These two statements are the crux of the matter. Much like Mr. Wierst, I have experience with passing multiple bars, CO (the UBE, for that matter), MO (multistate waived), and IL (the whole damn thing, handwritten). All small states, so perhaps in the eyes of Big City lawyers like SHG, they don’t rate. But still. The last had the most significant state-specific questions. It was also the one I studied for the least.

    What stands out for me, is that I learned many things solely for the purpose of taking those tests, and have never used them since. Things like Corporations, Trusts and Estates, and the like, are all things that I took no classes in, save Barbri. Nor do I draw on the classes I did take, things like Property and Torts. I practice criminal law exclusively, and that is what I use

    There are differences between the three jurisdictions, and I spend a significant amount of time making sure that I am up on all of them, taking distributed CLEs, reading appellate opinions, doing the research. Were I, tomorrow, to find myself practicing in New York, I would be doing the same. I would be asking local practitioners how the procedure works, I would be double and triple checking the state of the law.

    The only things that the bar exams do are provide barriers to entry for lawyers (because most attorneys wish to never take one again), and a false sense of certification.

    1. SHG Post author

      You do realize that your laudable choices in how to conduct your practice do not bind every other lawyer, right? Their mileage may (and often does) vary, which could completely change the calculus. If all lawyers were as diligent in their professional responsibilities as you, this would be a far easier to address.

      1. N

        Indeed, that is my point.

        I know from personal experience that passing a bar exam does not equal competency. The IL exam tested the most state specific law, it is also the exam I studied the least for. I studied the most for the CO, but because I practice there hardly at all, I also know the least.

        For an attorney who doesn’t make the effort to familiarize themselves with local law, I do not believe a bar exam offers anything but a minimal substitute. I don’t know what the alternative is (except the admittedly impossible apprenticeship), but a one hour, or even a one day test, can’t be it.
        But I do appreciate the tummy rub.

        1. SHG Post author

          I agree that the bar exam isn’t much of a bar for competency, but is no exam a better bar? Since this really doesn’t have anything to do with the proposal, and the existential angst about barriers to entry will still be around for a while, best to address the proposal at hand for its efficacy rather than free-floating concepts that aren’t on the agenda.

          Glad you like the tummy rub.

  3. Anonymous

    The issue of the general utility of the bar exam aside, I have been admitted for a couple of years in a state (Minnesota) which had no state-specific law on its bar exam at all, and my understanding is that Minnesota isn’t the only place where that’s true. It’s hard for me to see how it makes any sense to limit admission to those coming in without taking the Minnesota bar exam to those having just taken the exam elsewhere (here, you can be admitted, with a qualifying MBE score, within twenty-four months of having used that test result for admission elsewhere) or on motion (based on experience, here with sixty months of practice in the last eighty-four) but, for those in that gap, to make them take a new bar exam that won’t even attempt to confirm a basic understanding of that state’s law.

  4. John Barleycorn

    Your guild should ditch the “must attend and graduate from an accredited law school” criteria as well.

    Put a few more land mines in the BAR exam and rachet it up to torque level 11. If you pass, you pass and the journey to getting your wings begins but you must work in a paid apprenticeship program for three years before you get to fly solo.

      1. John Barleycorn

        Oh yeah, excuse me. Don’t be going and geting your boxers all knotted up before cocktail hour.

        I am all for going national with the “admission requirements” to your guild if the above criteria is meet, but after you pass the national recognized exam” you should still have to pass a supplemental state specific for each state you may at some point in the future want to practice in.

        You guys rarely kill anyone when you FU unless you throw in the death penalty, but your guild can certainly paly the bull in the china shop without the necessary on the ground experience.

        Speaking of which 10 years experience and three years under the wing of a journeyman death penalty defender if you want to fly solo in that arena.

        Other than that consider it like being a card carrying crane operator just because you pass the exam doesn’t mean you can actually do the delicate lifting of the heavy, heavy and perhaps even more important knowing when to say no due to conditions, equipment, or your own capabilities.

    1. UltravioletAdmin

      The accredited law school graduation and harder bar exam is the reality in California. As is a multiyear apprenticeship in liu of law school. So California has the longest bar exam in the country with the lowest pass rate. Including the Performance Test, which requires actual ability to write and use persuasive abilities. But in the end a decent accredited school will have a good pass rate, while unaccredited schools may have single digit pass rates. And of the 5 people who ‘read the bar’, maybe 1 passes.

        1. John Barleycorn

          A guild, is a guild, is a guild, esteemed one.

          I have no issue with yours even if it puts far too little faith in proven field competence. So don’t you go blowing smoke of your readers asses esteemed one.


          I would be more likely to commission some seventy year old Lutheran ladies from the bell choir to kidnap Zappa’s kids and torture them until the pull their head out of their asses and dump the vault than consider spending my evenings studying law to see if I could pass the BAR for grins. Although I probably would make a damn fine DUI attorney especially of I dressed like Ian Anderson.

          The cheap seats have more advantages than you might think. Plus it’s kind of fun to pay a competent lawyer now and then and watch them maneuver especially when they get to stressing out over the 50/50 coin toss calls. Those are becoming all to common these days despite the efforts of some of the best your guild has to offer. WTF is up with that BTW? You get a pass I guess though as you can can carry a tune while whining like a stuck gazelle fawn.

          To bad you guys aren’t just a tad bit more like longshoremen. If so perhaps a few more judges would pull their head out of their asses. Not out of fear mind you but out of respect.

          If you guys won’t regulate yourselves you get what you get. Go ahead and bless whatever notion of the BAR gets the kids through school it might be too late already anyway.

          Besides it would be a shame to not to enjoy all that surpass “talent” out there them accredited law schools are excreting from the ME generation. Speaking of which how much you figure some of those little fuckers pay these days for tutors?

          Hell, I should start a client
          guild and information clearing house to keep tabs on the not so capable amongst your guild if this national BAR notion takes off. Especially seeing as how the lions share of the lawyers out there are obviously way too fragile to
          Knock-some-Heads and regulate themselves for their own and the greater good. Other than some nuanced bar association circle jerk sessions now and then.

          P.S. Most of your readers probably hang out with little old ladies that gossip about the NYT variety section while drinking tea but if anybody knows some bad ass Lutheran choir bell running granny’s
          that don’t take no stinking orders from the choir director and drink beer with their cheese sandwiches send them my way.

          In the mean time your entire guild from both wells and on the bench best get your shit together before the carnival comes to town.


  5. ExCop-LawStudent

    Without knowledge of NY law or procedure, is a 50 question section sufficient? I know that there are several states (excluding Louisiana, which is a completely different matter) which are significantly different than the norm. I can see the advantage if most states follow the same law, but that is not always the case.

    Texas, for example, adopted both the community property of Spanish and Mexican law, and the English common law. Since these conflict, there are many nuances in both Texas law and procedure. Both oil and gas law (always tested on the Texas bar) and family law come to mind. I think it would be a disservice to the public in Texas to go to a UBE, and would infer that it may be a disservice in other states, such as NY.

  6. Barry Sullivan

    I just passed the UBE in MN, and did well enough to meet the score requirement for Washington and New Hampshire, but alas, not Alaska! Different states have different passing scores for UBE, and New York could set the bar pretty high at, say, 300 [of 400] and winnow much chaff from the desirable wheat.

    In the end, it is the responsibility of the individual to achieve competency/ proficiency, and for the potential client to practice caveat emptor.

    1. SHG Post author

      …and for the potential client to practice caveat emptor.

      That’s an unfortunate truism, as most clients are neither equipped to practice caveat emptor, nor come to the realization that they made have made a poor choice until after the shit hits the fan. I’ve never found anything remotely resembling an answer for this, beyond imploring lawyers to zealously represent their clients and conduct themselves with integrity. It’s not much of an answer.

  7. Mark Lyon

    Hopefully the few state-specific questions will include something on N.Y. CVR. LAW § 81, 83 – I found it quite curious during BarBri to learn that my new state made a felony out of what a former law school classmate turned into his first major trial victory.

    There are few things as fun to watch in Chancery as a Criminal Conversation hearing.

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