The Uniform Bar Exam: An Unclear Hurdle to Licensure
By Kelly Swan Taylor, Esq. • June 26, 2018•Features, Bar Exam
Ask any attorney about his or her bar exam experience and you will get an array of stressful, nerve-racking tales, doubtfully containing any positive tones. For me, personally, I will never forget the awful experience, including an all-nighter before the second day of the exam. When you have to memorize black letter law for some 15-plus subjects in order to draft convincing essay answers, there’s just no time for rest. These experiences, along with some brutal stories revolving around the Socratic Method in law school, are things that bind licensed attorneys together. It’s awful, but it’s a rite of passage. And you’d be hard-pressed to find a legal practitioner who would like to relive it. So, the idea of reciprocity within the states with regard to law licenses is a huge positive for the profession. Basically, depending upon the origin of your law license, some states allow practicing attorneys to be members of another state’s bar. The state in question usually requires a LARGE fee (we’re talking around $1,000-2,000 for most), a license in good standing in the original jurisdiction, and being a practicing attorney for a period of time (usually something like 5 of the last 7 years). If you are lucky, your license is compatible with the new state. If not, well, then you are in the not great position of having to sit for yet another bar exam. But, things may slowly be changing, for newly-licensed attorneys, with the advent of the Uniform Bar Exam (UBE).
What is the UBE?
The UBE was developed by the National Conference of Bar Examiners (NCBE), to allow for portability of bar scores across state/jurisdictional lines. The UBE consists of the Multistate Bar Examination (MBE), the Multistate Essay Examination (MEE), and the Multistate Performance Test (MPT). Those of us “older” attorneys remember the MBE well, as it is the bane of most of our bar taking experiences. It consists of 200 incredibly difficult multiple choice questions, regarding the law in any of seven subjects. What is different about the current bar exam and the UBE is the addition of the MEE and the MPT. In most states, one day of testing consists solely of answering essay questions about several more areas of law, including the local law of your bar jurisdiction. For me, that entailed knowing black letter law for many subjects, AND the Massachusetts nuances. Yes, it’s a pain in the butt, BUT is helpful in its application for a future Massachusetts attorney. With the new UBE, the essays would remain. HOWEVER, the essay questions would address the law of the states that have adopted the new exam (a more generalized approach and not state-specific). In addition, in my experience, it was the Commonwealth of Massachusetts that was charged with generating the questions and scoring the answers. This is NOT the case with the UBE and MEE, as the NCBE is charged with drafting the MEE. However, the individual jurisdiction does grade and score the exams, based upon its own methods (with a grading guide provided by the NCBE). Finally, the MPT is a totally new addition to the bar exam. This section of the exam is intended to simulate two real-life legal tasks that future attorneys may face in the real world. Tasks could include drafting a legal memorandum, affidavit, or settlement. This aspect of the UBE actually was modeled after a similar test that is used for the California bar exam.
Portability of the UBE
So, after that mouthful, what exactly is the point of the UBE anyway, and what is the controversy? First, the UBE’s design is for instant portability of bar scores. What that means is, if you decide to take the bar in Missouri (which has adopted the UBE), then basically you can take that score and obtain a law license in any state which has both 1.) adopted the UBE, and 2.) will accept your score as passing (i.e.: If you get a 270, then you could get licensed in a UBE state that has a passing score of 260). Quite simply, it allows for instant reciprocity, without the need for a previous license or practicing AT ALL. But, remember that the jurisdiction has to have adopted the UBE. Presently, there are 31 jurisdictions that have adopted the exam (currently or at some point through February 2019), and each one can choose the score that it desires for passage, which usually ranges from 260-280. The Commonwealth of Massachusetts announced that it had adopted the UBE, starting in July of this year. Second, since I have painted such a rosy picture of the UBE, what could possibly go wrong? Well, there are many potential issues that come to mind. But, let’s address some details first.
The Potential Benefits of the UBE
Well, the obvious first one is where the contention may lie: instant reciprocity. The ultimate result is that you can extend your job search into all the states that have adopted the UBE. Currently, the legal profession continues to go through a rough, sometimes dismal job market. Instant portability of licenses allows for bar passers to move freely and seek employment over many states, and faster. It may also prove to be an asset to those jurisdictions less inundated with legal practitioners, bringing attorneys to where they are needed. In addition, it saves the law graduate from taking TWO state bar exams AT THE SAME TIME. Yes, it happens, a lot. Many of the states that are close geographically (RI and MA, for instance) schedule their state-specific exam days on different days (book-ending the MBE), so that graduates can take only one MBE but two essay exams (easier than taking the MBE twice, BUT still harder than just one day of essays). Just keep in mind that each jurisdiction determines what time frame to accept passing UBE scores. You may only have a short timeframe to decide where you would like to practice, and also to provide the proper documentation to those jurisdictions.
Second, depending upon where you intend to take the bar, it MIGHT be less expensive than the traditional bar exam. The outlook appears that the UBE might be cheaper for the bar taker initially, at least in Massachusetts. But, frankly, you need a chart to compare what it ultimately will cost. So, while the test is “uniform,” the states' requirements and fees…are NOT. I guess this is an example of a potential forum shopping issue, as you can seek a cheaper jurisdiction for your bar destination. Keep in mind though, that my research has discovered a “score transfer fee.” So, it looks like the UBE just makes things MORE expensive (at least for the taker).
Third, some jurisdictions have claimed that, by allowing the NCBE to draft the exam, that there is both a cost savings for the state, as well as a higher quality exam, written by the experts in the field.
The Potential Problems with the UBE
Personally, I am a huge proponent of Federalism. I believe in the power and autonomy of the Several States. When it comes to licensing professionals, federalism is of utmost importance, as it is each jurisdiction that truly knows its needs and requirements. Like it or not, law on the simplest level, is based upon a jurisdictional concept. We first look to local common law cases and individual local statutes, for the most persuasive and pertinent legal arguments. Incorporating a uniform law exam simply seems counter to the federalist concept, even if the states retain control over the grading process. The UBE gives control of the drafting of the exam directly to one body, the NCBE, which also provides instructions and directions for the grading process.
Of course, what makes the Federalism and the UBE issue even more messy is that each jurisdiction CAN still determine what it will accept with regard to other requirements in order to license someone. More simply, in New York, for example, you would have to take an additional “test” (not the bar, per se), and complete pro bono hours. So, what may seemingly appear to be an easier process might not prove to be the case. In addition, what about the ethics exam/Multistate Professional Responsibility Exam (MPRE) score and how does it fit into all of this? Each state can choose the score that it desires for passage of the MPRE. If the bar taker passes the jurisdiction’s UBE, but does not achieve the acceptable MPRE score for that state, what then? Just take the MPRE again?
2. Local Laws
As noted above, the UBE is doing away with the state-specific essay exam. The MEE will consist of generalized essay questions, which are scaled and graded (most likely differently) depending upon the requirements of the individual state. The present benefit of the state-specific essay is to require the bar taker to show proficiency in the local laws of the jurisdiction. This is essential knowledge to the licensed professional. As a replacement, each jurisdiction can continue to determine what other qualifications it chooses to adopt on the path to licensure. This enables all sorts of additional requirements, keeping the UBE far removed from a simple process, as each state adds on more “tests,” classes, and pro bono requirements over time.
Scaling, is scoring based upon your “bar mates” (and I don’t mean your drinking buddies). How you fare on the bar exam, and whether you ultimately pass, is directly related to the people sitting around you, taking the same exam, in your same jurisdiction. Basically, a component of your score is directly dependent upon the applicant pool of your exam jurisdiction. But, the caveat is that each jurisdiction gets to decide how it scales the exam and the final passing score. This leaves little objectivity on a holistic approach.
I wonder too, how the jurisdictional approach to scaling will affect the social interaction, and strategies employed among the takers. Will law graduates EXPECT that they must achieve the golden score of at least 280, which would allow for a license in ANY of the UBE states? We all know that law school and law students are highly competitive. It will be interesting to see how this issue manifests itself in the future.
4. Forum Shopping
Imagine, you sit for the UBE in a state where lower tiered law schools reside, based upon your assumption that the graduates will score lower on the exam. Your scores will be scaled with those students, so your score is perhaps higher than it might be in another jurisdiction. You take your passing score to a more advantageous UBE state (where the applicant pool achieved higher scores). Going the other way, you could basically take the bar exam ANYWHERE (UBE is adopted) and then simply look to the other jurisdictions where you actually passed, and get licensed immediately (or right after you pay the necessary score transfer fees).
5. New Exam, New Material
While hopefully not affecting too many law graduates, the idea of failing the bar exam is traumatic enough. Now, if you fail the exam and your state has adopted the UBE the next time the exam is offered, then you are just out of luck! The UBE will test entirely new information. It might not seem like a big deal just to restudy, but let me educate those who do not have any idea of the cost of a bar exam course! It’s astronomical, with some students TAKING OUT NEW LOANS just to pay for it. In fact, being that I have been licensed for a while, I did some research just to determine the current cost of a review course. I was astonished to see that it has risen to a whopping $4,000 (nearly double of what I paid)! Also, taking into account just how long it takes to complete the course, then, you have lost a lot of both time AND money.
6. Additional Costs
While I made note above of a potential for cheaper testing fees with the UBE, I have come across a slew of additional costs. Most notably, most jurisdictions seem to require a “score transfer fee.” No kidding! We knew this was bound to happen! After you pay your huge bar course fee, you’ll be looking at between $250-$1,200-plus for the exam and then an additional fee for more courses and/or score transfer costs $250-$1,200-plus. Even UBE jurisdictions are not uniform with fees. So you may be taking the same exam, on the same day, but you’ll need a chart to determine the costs!
7. UBE Unknowns
The easiest unknown to target is the obvious one that only 31 jurisdictions have adopted the UBE. That leaves many others that are on the fence about this exam. So, does the law graduate just take the UBE and get licensed in one of those states? Will non-UBE jurisdictions take scores from UBE jurisdictions anyway? For a process that claims to be “uniform” and make things easier, things appear to be getting more complicated and still jurisdictionally-specific.
For me, personally, one question that stood out as a huge concern is how this will affect already licensed attorneys. As a practicing attorney, licensed in Massachusetts, I have the option of being “Waived” into many other jurisdictions, just by fulfilling some requirements (including having my license in good standing). How will the UBE affect me and my ability to obtain licenses with reciprocal states? I cannot see this as moving toward a “Uniform License,” but is that the ultimate goal? I still cannot see the states giving up their autonomy so easily. But, maybe I’m getting lost in the weeds here (and into another blog article)!
So, with all my research regarding the UBE, it seemed to generate more questions than answers. Of course, this can be said for many things in the beginning stages. The UBE is relatively new to most jurisdictions, and there will be some time to adjust to the changes. But, with a process as grueling, stressful, time-consuming, and downright expensive as taking the bar exam, there is little room for error. With so much at stake, most notably the bar taker’s future, I hope the UBE process turns out to be an asset to the profession, and not a liability. Or at least, if things are looking bleak in the application of the UBE, perhaps the profession should seek another solution, such as improving reciprocity, in general. Sometimes there is no need to reinvent the wheel; it just needs some adjustment. I guess we’ll find out!
What do you think of the UBE?
*Article reflects recent UBE updates, from original published article...
**Image credit: ABA For Law Students; Before the Bar
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