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Will the UBE Become the New Standard?

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By Janan Hanna.

The question of where to sit for the bar exam; that last, anxiety-provoking right of passage offering those who pass entrée into the exclusive club of professional lawyers, is a question about which many young law grads agonize—particularly those without job offers.

Although significant changes are under way, today, a blissful graduate in Florida, newly sworn in and license in hand, cannot go to New York the next day and call herself a lawyer there. Should she get a job offer in New York, she’d have to wait six months (the bar exam is offered only twice a year in each state), wait a couple of more months for the results, and hope that she passes and that her prospective employer will wait for this drawn-out process to play out. This is how it has always been for new lawyers. They are either limited to working in the state where they passed the bar, or they must retake the exam in another state if they move or get another offer. Even those states that do allow newcomers to “waive” in, they accept only seasoned lawyers with several years of practical experience.

For years, the National Conference of Bar Examiners (NCBE), bar groups, and some educators have been advocating for a simpler protocol and it seems now to be taking hold. The Uniform Bar Examination, known as the UBE, is now administered in eight states. Missouri and North Dakota were the first to offer the exam in February 2011, followed by Alabama, Idaho, Colorado, and Arizona. Utah and Nebraska offered it in February of this year for the first time.

Five more states have adopted and will be implementing it soon: Washington (July 2013), Montana (July 2013), Wyoming (July 2013), Minnesota (February 2014), and New Hampshire (February 2014).

What Exactly Is the UBE?

The UBE is prepared by the NCBE and is nearly identical to the standard bar exams given in nearly every state (in fact, many states use NCBE-prepared tests) with one exception that critics cite as a major flaw: Students are not tested on local law as they are in some essay questions in other state bar exams. The benefit of the UBE is that students may, within about two or three years, transfer their UBE score to another UBE-active state and, upon passing that state’s character-and-fitness evaluation protocol, be admitted without having to sit for another bar exam. Meanwhile, provided they maintain whatever state supreme court requirements exist in the state where they originally passed the bar, they can maintain their original license, too.

It is not a national bar exam, Erica Moeser, president of the NCBE, insists. Each state decides what a passing score is if a student seeks to transfer his results; each state still determines if the applicant has the appropriate character and fitness to practice, and many states can and do require those who are transferring their UBE score to take a test or a continuing legal education course on certain local law topics, she says.

“This gives you portability that allows you to get admitted more quickly,” Moeser says. At the time that students are applying to take the bar exam, they don’t have a job, Moeser notes. So they take the bar in the state where they have attended school, but in the meantime, they may have gotten a job in another state.

The UBE is nearly identical to bar exams given in every state. Although many states typically administer original essay questions—some on issues related to local law and some on national law—many states use at least some of the nine national essay questions on substantive national law prepared by the National Conference of Bar Examiners. This portion of the exam is called the MEE or multistate essay exam portion of the test. North Dakota Supreme Court Chief Justice Gerald W. VandeWalle says his state dropped local essays and began using all the NCBE’s essays in 1999 after he began having concerns about the validity of the local exam questions that were being prepared by local law professors.

Nearly every state uses the NCBE 100-question multichoice, day-long portion of the exam. This is known as the MBE or multi-state bar exam. In addition, most states give one or two multistate performance essay questions, known as the MPT (two are administered in the UBE), which tests the applicants, ability to aggregate facts, legislation, and sometimes judicial rulings in order to answer a hypothetical legal question for a client, a law firm partner, or a judge.

Law Becomes More Federal and Global

Proponents of the UBE cite a number of factors that warrant a simpler licensing process while still allowing state supreme courts to maintain control over the attorneys practicing in their states: the job market has been tight; the practice of law has become more federal and even more global; testing students on three or four local essay topics in no way makes them practice-ready in those areas of law, which they typically learn once they start practicing; and young people today move more frequently early in their careers.

But for skeptics of a uniform exam, those factors do not outweigh the importance of a locally drafted exam. Delaware Supreme Court Chief Justice Myron T. Steele says he is not willing to adopt the UBE in Delaware and, although he won’t say he opposes the UBE outright, he expressed serious skepticism and says he wants to see how it plays out in the states that have adopted it before passing judgment.

In a phone interview, Steele said he believes it is extremely important for the high courts of each state to maintain the authority to ensure that only competent practitioners have authority to practice. The goal of UBE proponents, as he sees it, is to have just “one uniform national bar exam” and it would be the only bar exam. “To me, it raises serious questions about the ability of the high courts of various states to police the competence of those who practice law in their states.”

He also said testing on local law is extremely important and noted, as an example, that certain areas of Delaware law are quite distinct from other states. Delaware has a bar pass rate of between 50 and 60 percent, he said. In an article in the spring 2013 issue of the ABA Judicial Division’s The Judges’ Journal entitled “Winds of Change: The Challenges Facing State High Courts in Regulating the Practice of Law,” Steele wrote:

While the UBE’s goals are laudable, the problem with any uniform bar exam is that it attempts to test the law as it is everywhere, and therefore tests local law nowhere. Unlike, say, a medical licensing test, where administrators can safely assume that the circulatory system works similarly in Davenport and Dubai, differing public policy concerns have led to intentional variations between jurisdictions’ laws. Regulators should worry that uniform tests risk certifying attorneys who are ready to practice in the MPT-favorite nonexistent jurisdictions of ‘Franklin’ or the ‘Fifteenth Circuit.’ Perhaps the ubiquity of online research makes memorizing a specific jurisdiction’s law archaic, but testing distinctions at least force attorneys to recognize that distinctions exist.

Still, Moeser believes the issue has reached a “critical mass” and that more and more states will ultimately adopt the UBE, although larger states have been resistant. “This is an issue that should matter to every law student in America and should be communicated to their deans. I have been surprised that students have either been unaware of it or are not seeing how it will touch their lives. But they are a sleeping giant.”

At the University of Missouri-Kansas City School of Law, students are well aware of the UBE, says Dean Ellen Y. Suni. Asked whether she thought a tight job market is a good reason to have a portable law license, she says no. But she adds: “I think it’s the reality that practice has become more multistate and multinational and lawyers want and need multiple admissions.”

Michele Radosevich, president of the Washington State Bar Association, says the UBE will be offered beginning in July, but only in Seattle. She says there was not much push-back when the idea was proposed, but those transferring their UBE to Seattle will have to take a short online exam on local law issues. “There hasn’t been a lot of push-back here. We’re home to Starbucks, Microsoft, and Boeing. There’s a recognition here that people move not only within the country but within the world. It simply isn’t going to work for lawyers to be as rigidly geographically segmented as we used to be.”

Students and the UBE

Alexis M. DeLaCruz, a native of Colorado, is a 2L at Seattle University School of Law, a school she chose because of its commitment to social justice issues, she says. While she loves Seattle, she misses her family desperately and was inspired to pursue a career in law because her father is a quadriplegic, the result of a car accident. She plans on practicing disability law because she grew frustrated watching him navigate the laws in place that are meant to protect those with disabilities.

“That was the impetus for me to go to law school,” says DeLaCruz, who worked as a journalist at a small newspaper for three years before attending law school.

DeLaCruz will sit for the bar in Seattle, which will begin administering the UBE in July, but she will also then apply for a license in Colorado.

“The reason I was so excited about the UBE is that I know there will come a day when I’ll need to go home and deal with parenting issues. Now, I can transfer. I’d like to have licenses in both places and keep them up so if there’s an emergency, I don’t have to worry.

“It does relieve some of that stress of having to sit for another bar exam, pay for another bar exam, study for another bar exam. I want to make sure I’m a marketable job applicant without having to go through that process again.”

Megan Taggart, a 2L at the University of Missouri-Kansas City School of Law, says she believes there is a “stigma” that law students must select schools on the basis of where they want to work, without knowing how they’ll feel three years later. A native of Colorado, Taggart plans on taking the UBE in Missouri and transferring her score to Colorado where her family lives if she finds a job there. She has relatives in Kansas City, but unless she gets a good job there, she wants to go back home. “I think the UBE opens things up for people to be more flexible. You have enough to be stressed about. You shouldn’t have to be stressed about that. I think it’s a great thing for new lawyers.”

To the critics who say the UBE is flawed because it does not test law grads on the nuances of state-specific local law, Taggart brushes the argument aside: “I mean, just because you can answer the [local essay] questions well doesn’t mean you’ll be able to practice well there. That comes from practicing.”

A Matter of Mobility

Hulett (Bucky) H. Askew, former law school accreditation director and consultant on legal education at the American Bar Association, insists that the UBE is in the best interest of new lawyers and the profession. He believes it will ultimately be adopted in every state. “It’s a matter of mobility. It’s a matter of helping these students as they’re trying to make their way in a tough economic climate,” says Askew, now a visitor at the University of Georgia State College of Law. “Secondly, because it’s uniform, there is no concern in the receiving state about whether to accept [the test results]. The UBE is exactly the same from state to state. It contains the same test products and it’s graded under the same protocol.”

Askew says he believes opponents of the UBE have three main objections: Giving up control of writing their own state exam, the absence of local law test questions, and a fear that an influx of lawyers will bombard states with more jobs (few East Coast states have adopted the UBE, nor has California). Askew discounted most of these concerns, saying states can still test UBE transfer applicants on local law by administering a CLE course or exam or seminar, which some UBE states currently do, and he staunchly defends the quality of the NCBE exam. He concedes that in large states, which have huge apparatuses in place to write and grade exams, switching to the UBE could be complicated and accepting transfer applicants could have economic implications.

“I think they’re just being cautious more than anything else,” Askew says of the states that have been reluctant to jump into UBE waters. “What I read is that everybody is interested in this and realizes this is the future. But [they’re] not going to rush through the door with it until [they] see what happens in states that have adopted it and learn if there are any unintended consequences that occur as a result of it.”

Justice VandeWalle of North Dakota, who serves on the UBE Committee of the NCBE, says some opposition stems simply from “local pride.”

“When it first came up and I talked to our local bar examiners, I had a pang about it; we’re giving up our individuality,” he says. “But when you looked at our exam, there were very few questions that were North Dakota specific. We were an easy move to go to the UBE.”

Approximately 130 law school graduates take the bar in North Dakota each year. “For those states that have unique areas that they want to test on, I’m assuming the theory is that if you test on it, [the students] will study it,” VandeWalle says. But we all require continuing legal education courses. Or, if they want, they can still give a local exam. There are other methods of doing it and one of them would be a CLE course.

“I agree that the bar exam is really sort of a test of whether you’re intellectually capable of doing it, not whether you’re practice ready.”

 

Janan Hanna (jhan63@gmail.com) is a Chicago freelance writer and an adjunct instructor at Northwestern University’s Medill School of Journalism. A former staff writer for the Chicago Tribune, she has also written for numerous other news organizations, including Reuters, the Chicago News Cooperative, the Huffington Post, and the Chicago Daily Law Bulletin.

Vol. 41 No. 9

Student Lawyer Student Lawyer magazine provides guidance on educational, career, and related issues for ABA Law Student Division members and other subscribers. It is published four times a year by the Law Student Division of the American Bar Association. Student Lawyer is available online to members of the ABA Law Student Division and to print subscribers.

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