Uniform Bar Exam Drawing Closer to Reality
States' adoption of the test reflects the legal profession?s nationalization
The National Law Journal
October 12, 2009
It could mark one of the biggest changes for lawyers joining the profession since the first U.S. bar exam was given in Delaware in 1763 -- a single bar exam aimed at standardizing attorney credentials nationwide.
Next year, at least 10 states are expected to switch to the so-called Uniform Bar Exam, and 22 other jurisdictions are positioned to adopt the test in the next few years. The test, developed by the National Conference of Bar Examiners, will allow law school graduates to transport their bar scores across state lines without re-taking exams. And backers say a uniform exam will improve the quality of bar exams, particularly in states with small test-development budgets.
The test still has big hurdles to overcome. Several of the biggest legal markets have yet to sign on: New York, California, the District of Columbia, Florida, Illinois and Texas so far have taken a pass. Some worry the test will give short shrift to important state law concepts. Others have scheduling problems and scoring concerns. And the test puts a great deal of power in the hands of the NCBE, which gives some state-level bar officials pause.
Even so, the fact that several states have accepted one test may mean a major shift for the profession. Individual states have doggedly clung to their autonomy in testing lawyers, and this would mean giving up that power. "Roughly 10" states have indicated that they will give the uniform test by 2011, said Erica Moeser, president of the NCBE, though she wouldn't provide specifics on which states will actually sign on. However, officials in Colorado, Minnesota and Missouri have said they are considering the test. Next month, representatives from the states that will be among the first adopting the test will gather in Phoenix to discuss late-stage details of implementing the exam.
"It's got to start somewhere, and it's happening," said John J. McAlary, executive director of the New York State Board of Law Examiners. New York, which administers some 15,000 bar examinations each year, is considering the uniform exam. That said, McAlary doesn't expect the state to make a move anytime soon. "There are significant challenges with it," he said. New York will not send representatives to next month's meeting.
A QUESTION OF STATE LAW
Foremost among the doubters' concerns is how states will evaluate an applicant's knowledge of state law, since the uniform test will focus on federal law and doctrine. Related to that concern is the weight that a mastery of state law will play in admission to practice. Supporters of a uniform test, recognizing the resistance among some states to relinquish authority over their bar exams, are careful to call it a "uniform" instead of a "national" or, worse, a "federal" test.
No state yet has formally adopted the uniform test and exactly which ones will be the first to sign up is uncertain. Some 22 jurisdictions already use the three test components developed by the NCBE that will make up the uniform bar exam. In order to convert to a uniform test, those states will all score the components uniformly and, most importantly, will establish score portability, the essential element of the project. Once they do, each will honor applicants' passing score from the other states.
One component of the uniform bar exam will be the Multistate Bar Exam, a multiple-choice test with 200 questions that 48 states and the District of Columbia already use. The other two portions will be the Multistate Essay Exam and the Multistate Performance Test.
Missouri has "preliminarily decided" to move to the uniform test, said Kellie Early, executive director of the Missouri Board of Law Examiners. She expects implementation no earlier than 2011. She noted that states seem reluctant to be the first to embrace the uniform exam. "I don't know who else is doing it," Early said. "We say that we might be the only ones."
Minnesota won't be ready for a 2010 rollout, but state Board of Law Examiners Director Margaret Fuller Corneille would not rule out a 2011 launch. The state still has some "timing" issues to work through before it makes a final decision, she said.
The NCBE won't identify the states sending representatives to Phoenix, but they likely will come from the pool of the 22 jurisdictions already using the three test components. "We have preferred to take matters slowly and carefully and don't want to jeopardize the eventual outcome by rushing to identify jurisdictions that are undertaking the prudent evaluation of the concept and reality of the UBE," Moeser said in an e-mail.
Vocal support for the uniform exam has come from state bar examination officials from Arizona, Colorado, Minnesota, Missouri and North Dakota. Some of the other jurisdictions using NCBE testing components are Idaho, Indiana, Iowa, New Hampshire, Oregon and Utah. Most jurisdictions that adopt the uniform test will need their highest courts to issue orders enacting the change and will need to modify some practice rules.
Although some of the largest jurisdictions have yet to be persuaded to administer a uniform test, Moeser said that the movement can proceed. "I have never felt that the participation of any particular jurisdictions would be essential," she said. "There is no downside to starting on a modest scale if that is what occurs."