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Vol. 44, No. 1

Breaking barriers: In a changing profession, what is the impact of the Uniform Bar Examination?

By Robert J. Derocher

What began less than a decade ago as an agreement between two states—the Uniform Bar Examination, or UBE—has now quickly morphed into a movement encompassing 36 states and two territories. The rapid expansion, some observers say, is now opening a door for state and local bars to solve one of their most vexing challenges: finding and cultivating new members.

Indeed, it seems evident that the UBE has an immediate, direct effect on membership numbers for mandatory bars, perhaps especially in jurisdictions where lawyers find it desirable to have an additional license. For example, according to statistics from the National Conference of Bar Examiners' publication The Bar Examiner, in 2018, the mandatory D.C. Bar gained 431 new members who were admitted via transferred UBE score.  

Even for voluntary bars, for which new admittees do not necessarily mean new members, the UBE may present some opportunities to reach out and market themselves to additional pools of prospective members. This could be especially helpful for those in smaller or more sparsely populated states, allowing these bars to broaden beyond their resident lawyer population. 

The UBE, many say, is part of the latest in a string of evolutionary changes in the legal profession that signal a shift in the training and education of new lawyers. It’s an evolution that looks likely to continue, as more states move toward accepting the UBE. At the same time, the National Conference of Bar Examiners, which coordinates the UBE, is one of several organizations looking at continued changes to the exam and the concept of testing, and how it fits in with the overall mission of ensuring that new lawyers are ready to practice law—wherever they choose to practice.

 “I think bar associations can be helpful in providing a forum for law students to talk about issues [such as] where they want to sit for the exam,” says Marilyn Wellington, executive director of the Massachusetts Board of Bar Examiners, and a former executive director of the Massachusetts Bar Association. “All of these changes might give bar associations more of an opportunity to reach out and provide services.”

And it’s involvement that bars can seek right from the beginning, says retired Arizona Supreme Court Chief Justice Rebecca Berch. “State bar associations should welcome the flexibility and mobility that the UBE provides,” she says. “State bars should also care about the quality of the exam.”

Flexibility, increased opportunity drive UBE

Mounting student debt, declining law school enrollment, recession-related job losses and fewer job opportunities for new graduates have all captured headlines in the last decade. And layering on the requirement of sitting for and taking separate bar exams in every state where a job-hunting student was interested in looking made things just that much more difficult.

“Each time an applicant has to take off time to study for a bar exam, then wait several months for the exam to be graded, that applicant loses several months of productive, paying work,” Berch says. “Many applicants simply can’t afford this.” The stress of multiple bar exams adds to the mental cost to students, Berch and Wellington say.

“A bar exam tests your minimum competence. You shouldn’t have to keep retaking bar exams to re-prove that. It’s hard to show your best work going through three days of nonstop testing,” Wellington says. “[The UBE] will give the students an opportunity to be more marketable for jobs. It gives them more flexibility since they can go to different jurisdictions.”

That flexibility is increasingly important, she says, as the profession becomes more of a “global practice,” providing greater employment opportunities for new lawyers who have multiple jurisdiction admissions.

Those multiple jurisdictions are important, particularly in regions that cut across state lines, such as southern Appalachia, according to Matthew Lyon, a law professor and associate dean for academic affairs at Lincoln Memorial University’s Duncan School of Law in Knoxville, Tenn. The school specializes in providing job opportunities for students interested in practicing in the region, which includes Tennessee, North Carolina, South Carolina, Alabama, Virginia and Georgia. Tennessee administered its first UBE exam this year.

“For us, [the UBE] allows us to recruit students who are going to go back to those areas, particularly in the Carolinas, that have the UBE,” he says. “It allows us to attract students from other states who otherwise may not have wanted to practice in Tennessee. We can tell them, ‘We’ll prepare you for the UBE just as well as a law school in your home state.’”

For many law school students, large debt loads and limited job opportunities remain significant problems, which makes the portability and flexibility provided via the UBE “a step in the right direction,” says Kyle McEntee, executive director of Law School Transparency, a group that has often challenged law school and job placement statistics for law students and new lawyers. “People want the flexibility to go where the jobs are," he explains, "so they can repay that debt and get started on their careers.”

There is anecdotal evidence that the UBE is improving job prospects for graduating law students, McEntee adds, but statistical analysis is needed to determine its impact. This research and analysis would be a useful addition to some of the ongoing research looking at the effectiveness of bar exams as a whole, he says. McEntee is among the leaders of research now being conducted by the Institute for the Advancement of the Legal System via its Building a Better Bar: Capturing Minimum Competence project.

“The evolution that we’re seeing is that minimum competence isn’t the ability to recite a bunch of different laws from memorization, but it has something more to do with your skills and your ability,” he says. “Further recognition of this is going to lead to exams that make sense on a national basis. UBE doesn’t get us there, but it at least provides a framework to get us there in the future.”

One concern that some bar leaders and others have raised is that state-specific courses disappear from the law school curriculum because this content is not tested by the UBE. Some law schools are grappling with how to cover this information; for example, Lyon says, Duncan School of Law is looking into curriculum changes to allow for elective courses that can provide better in-depth background on Tennessee law.

An important role for bar associations

In addition to providing forums for research, opinion and education on the UBE and the exam process, bars may be well positioned to help provide this state-specific practice information. Massachusetts became a UBE state last year, and one area where Wellington sees opportunities for state and local bars to get involved in the new lawyer licensing process is through education. From helping students conduct regional and national job searches to understanding testing and education requirements in other states, bars can make an early and strengthened connection to law students who are looking for help.

In Massachusetts, as in some other UBE states without CLE requirements, a separate but less-involved test on state laws is administered. In Massachusetts, it’s an “open book” test prior to the UBE involving online resources.

“Bar associations can provide services to law students, starting with the pre-exam,” Wellington says. “That’s how you get [students] to be long-term members. If we can start with them in law school, and the UBE can keep that continuum, then I think you can build loyalty.”

Lyon also foresees opportunities for bars to do the same in Tennessee. Meanwhile, in New York, which adopted the UBE in 2015, the New York State Bar Association’s Task Force on the New York Bar Examination will hold hearings beginning this fall to examine the impact of the UBE, along with multiple other aspects of the state’s examination process. One area of focus will be whether the UBE has eroded new lawyers’ skills and knowledge specific to New York state. The task force expects to hear from leading experts in the field, along with the deans of New York’s 15 law schools, says NYSBA President Hank Greenberg.

Bars that have strong connections to the state courts and bar examiners who usually set the exam rules at the state level will also be able to play pivotal roles in the evolution of the UBE—or any other exams developed by the state, according to Dean Barbieri, a former director of bar examinations for the state of California and former dean of the John F. Kennedy University College of Law.

“In some states, they’re the ones in the trenches, and they know better than most what skills are needed in that jurisdiction,” he says.

Bars can also build additional credibility and loyalty that might also help boost membership, Berch adds, by working more closely with new multijurisdictional lawyers.

“Many lawyers like to maintain licensure in more than one jurisdiction,” she says. “The UBE makes it easier for them to do so.”

Adds McEntee, “Our profession is strengthened by informed lawyers being able to make decisions about where they work. Bar associations have a duty to inform prospective members about how UBE works in their jurisdictions and other jurisdictions.

“It comes down to identity. If the voluntary bar looks at its identity as protecting its members, then it won’t grow. But if its identity is to continue to exist with as many people as possible, [it] would want to seek out new members.”

The legal services arena as a whole is changing, McEntee notes; he believes lawyers and bars should stay abreast of those changes, and consider their role in them, rather than pretending they're not happening. 

For bars in states that have adopted the UBE, a primary question may be this one: Will they focus on serving their members who reside within the state, or will they consider lawyers who are admitted via UBE also to be core members or potential members? The answer may vary from one bar to the next, but the trend does seem clear: increased fluidity, and fewer borders.