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Examining the Feasibility of a National Uniform Bar Exam

By Tiffany M. Williams, Litigation News Associate Editor – January 28, 2010

A recent resurgence of interest in a potential national uniform bar exam has sparked debate in the legal community among practitioners, jurists, law students, and bar examiners.


As many as 32 states are reportedly considering changing their existing exam requirements to a uniform national examination.


Currently, 48 states and the District of Columbia utilize the National Conference of Bar Examiners’ Multistate Bar Exam (MBE), made up of 200 multiple choice questions. Two additional components, including the Multistate Essay Exam and the Multistate Performance Test, would comprise the three segments of the proposed national uniform exam.


While most states now use the MBE, they also administer essay portions of the exam that incorporate nuances of their state’s law. Under the proposed uniform exam, it is expected that states would not continue their current practice of assigning various weighting to each exam section. States can still select a minimum pass score for admission eligibility, however.


Pros and Cons
Proponents of a national uniform bar exam champion a uniform approach as a vehicle to providing greater mobility for practicing attorneys. They believe that a national uniform bar exam would eliminate the disparity in weighting and scoring of each section and would also alleviate testing of state law nuances and distinctions.


Particularly during a difficult job market, proponents believe that the portability of scores will enable attorneys and graduating law students to have greater flexibility to relocate and follow jobs in a wider range of geographic regions.


Smaller jurisdictions also find the potential of a national uniform exam economically appealing where resources limit their ability to administer separate tests for the state portion of their respective exams.


Some proponents predict that law school curriculum will normalize and focus less on nuanced subjects with the imposition of a national uniform bar exam.


“The concept of a national bar exam is appealing and national practice is the future,” says JoAnne A. Epps, Philadelphia, Section of Litigation delegate to the ABA House of Delegates and dean of the Temple University Beasley School of Law.


However, “states will need a way to participate in and feel comfortable with what is being tested,” Epps cautions.


Perhaps that most significant criticism of the concept of a national uniform bar exam is the eradication of the ability for states to test the nuances in their respective state laws.


Jurisdictions with large populations tend to sympathize with protecting litigants in their states who are subject to the interpretation of each state’s particularized and varied legal standards.


While agreeing there is some value in a portion of the exam remaining uniform, some practitioners caution against eliminating testing on state specific subjects.


“There are differences in state law and procedures that vary so much from state to state that I am not sure a uniform exam is a good idea,” says Abbe F. Fletman, Philadelphia, codirector of the Section’s Division VI (the Profession) and member of the Special Committee on Jury Innovation.


Examples include family law, probate, trusts and estates, and civil and criminal procedure, Fletman notes.


Critics fear that clients’ interests and the practice of law may be compromised by having attorneys practicing in state courts who are not versed on a state’s legal standards in a given area of law.


Paul Mark Sandler, Baltimore, cochair of Litigation Institute of Trial Training, is not adverse to a portion of a state’s exam being standardized nationally but is concerned that bar exams should still respect a jurisdiction’s right to establish its own rules and procedure.


“Most lawyers today practicing in a state should be required to be familiar with the procedure and practice of that jurisdiction,” says Sandler.


The concept of a national uniform bar exam “is a good idea, but some written exam reflecting state law nuances is necessary,” agrees Paulette Brown, Madison, NJ, Section Council member.


Impact on Multijurisdictional Practice and the Legal Marketplace
Imposition of a national uniform bar exam could result in a greater influx of attorneys taking on a multistate practice, some lawyers predict.


As a result of the ease of transferability of scores, attorneys could readily increase their client base and provide representation throughout the country without the burden of preparing for and taking another state’s bar exam, they note.


The portability of scores from a national uniform exam could also enable attorneys to cross neighboring state lines in search of work in less competitive markets and provide employers a wider net of out-of-state talent.


Others think, however, that multijurisdictional practice may not be significantly affected because attorneys are already admitted pro hac vice routinely in some states, observes Brown.


Predictions on Participation
While no state has formally adopted the uniform test, states such as Colorado, Minnesota, and Missouri are largely on board with converting to the uniform exam by as soon as next year.


Additionally, 22 states already use the three components parts but score them differently and may be in line to make the final step to uniform scoring.


Critics of the national uniform exam predict that larger jurisdictions, like New York, California, District of Columbia, Texas, Illinois, Pennsylvania, and Florida will opt out of a uniform exam. These states are ones with extensive essay topics focusing on nuances of state law.


Keywords: Litigation, bar exam


 
  • February 4, 2010 – This is very interesting. MO is on board for as early as next year.
  • February 4, 2010 – I think a uniform bar exam is a great idea primarily for the mobility it would give attorneys. I have known plenty of attorneys who have gone through great pains to move to and practice in another state; be it for a better job offer or to be with and care for sick family. I can certainly understand an individual states concern about attorneys practicing in areas of law that they are unfamiliar with, however, each attorney owes a duty to their client to be well versed and/or learn the area of law in which they are practicing anyway. If you prove to be incompetent in that area you are subject to malpractice complaints and penalty under the Rules of Professional Conduct. And even when you study and take a state specific bar exam, 80% of the knowledge is forgotten the minute you get the letter stating that you passed and you still have to go and look things up for the first few years. So, generally speaking, I m not sure how a uniform bar exam would change any of that.
  • February 7, 2010 – It will certainly make things easier for the McFirms, but how will the majority of lawyers--smaller firms--really benefit beyond what they can do now by going pro hac?

 

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