April 01, 2016

A Focus on Bar Admissions

The Honorable Rebecca White Berch

The Council of the Section of Legal Education and Admissions to the Bar primarily deals with issues related to legal education and the accreditation of law schools. This article focuses on the other part of the Section’s mission: bar admissions. There is a lot happening in this space:

·The Uniform Bar Exam (UBE). Twenty-one jurisdictions have adopted the UBE as their bar exam, and several more have adoption of the test under consideration. The UBE consists of three products many states already use in their state exams:  the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT) problems, and the Multistate Bar Examination (MBE). According to a UBE fact sheet, the exam is “uniformly administered, graded, and scored by user jurisdictions and results in a portable score” that examinees may take to other jurisdictions that have agreed to accept them. States retain the right to test or educate on state-specific material, set their own passing score, grade tests, set character and fitness requirements and make C&F determinations, decide how long UBE scores will remain valid, and, ultimately, determine who should be admitted to practice.

The UBE allows takers to take their exam score to apply for admission in another jurisdiction for the period of time specified by the admitting jurisdiction. It gives new lawyers the flexibility to perhaps take only one bar exam if they must move to another jurisdiction to find work. In these tough economic times, this portability may help new lawyers find and begin work more quickly.

Momentum for this concept is growing, and it has been endorsed by the Council and by other influential groups, such as the Conference of Chief Justices. At the February 2016 Midyear Meeting, the ABA House of Delegates approved a resolution put forth by the Law Student Division calling upon states to “expeditiously” adopt the UBE. The idea is also popular with law deans and faculty, who wish to see their students employed, as well as with students, who may not have to take several tests. For further information on the UBE, visit NCBEX.org and click on the link to the UBE.

·Admission on Motion. Recognizing that much law practice transcends state boundaries, many states now allow admission on motion – without having to pass a state’s bar exam – for those who have practiced a required length of time (usually five of seven years or, more and more commonly, three of five years) without having disciplinary problems. A coming challenge for the future is recognition that law practice is now, in many instances, multi-national or global.

·Apprenticeship programs and “diploma privileges.”  Some states allow admission to the bar by presentation of a portfolio of work performed through an apprenticeship-type program. The Daniel Webster Scholars program in New Hampshire is one such program. In addition, at least one jurisdiction, Wisconsin, permits students from that state’s two ABA-accredited schools to be admitted without taking the state’s bar exam – though it does require an exam from graduates of other ABA-accredited law schools. At least one other state recently studied whether to institute such a rule for graduates of its in-state schools, but rejected the idea. The ABA Council discourages such a procedure, instead providing that every candidate for admission should be "examined by public authority to determine fitness for admission.”  (Preface to ABA Standards for Approval of Law Schools ¶ 1.)

·The 3L February Bar Program. A few jurisdictions – following an experiment launched in Arizona – allow third-year law students who are within a few credits of graduation to sit for the bar exam in February of their third year of law school. The students must complete law school within a specified time, and before admission will be permitted. But if they do so and pass the bar, they may begin working several months earlier than if they had to wait till July to take the exam. Given the law school debt many law students now carry, the extra several months of income – and the chance to get a jump on competition in the job market – provide a great advantage. Thus far, the Arizona experience shows that the applicants pass the bar at a high rate – higher than would be predicted by the takers’ law school grades.

States have the right to impose additional requirements for admission, and, through their supreme or high courts, have always done so. Consider, for example, character and fitness requirements. The requirement of good moral character exists in every jurisdiction. In addition, some states require a test on state law, and even some UBE states administer a separate state-law test or require a state-law course. Still other jurisdictions require new lawyers to complete a professionalism course or do a specified number of hours of pro bono work within a stated time period after admission to the bar. Such regulations are the prerogative of the states.

One new development, however, is concerning:  states imposing requirements that students must fulfill while in law school that exceed requirements imposed by the ABA or the law schools themselves. For example, New York has recently passed a rule asking law school deans to certify, for applicants to the New York bar, that they have received sufficient training in legal skills and, if the dean is unable to do that, asking the students to certify that they have taken at least 15 hours of experiential learning. Such a great amount of experiential learning is not necessarily a bad thing. But the Section’s Council debated adding a similar requirement within the past two years – and rejected it. The Council sent out for public comment a rule that would require students to take either a minimum of 6 or a minimum of 15 hours of clinical or experiential coursework. The resulting comments focused on the cost of such courses and the effect that such a requirement might have on the cost of law school. The second group of comments focused on the students’ needs. They noted that not all will practice law; yet they still might want to be admitted to the bar, and requiring such students to take a higher minimum of experiential learning credits might not be a productive use of time for those students. As a result of these comments, the Council maintained the 6-credit minimum requirement; students desiring more experiential education may always take more such courses.

Until now, it has been the case that graduation from an ABA-approved law school sufficed to academically qualify applicants to sit for the bar exam in any U.S. jurisdiction. If state-by-state proposals to require courses students must take in law school in order to academically qualify for admission in certain jurisdictions continue to multiply, then those jurisdictions – and not the ABA, which has national representation and seeks input from law schools, students, practitioners, judges, and public members – can effectively exert control over the courses that law schools must offer. Creating this patchwork puts the onus on students to figure out well ahead of time where they may wish to practice upon graduation in order to ensure that they take the courses in law school that will qualify them for practice. Until now, taking the few required courses at an ABA-approved law school, supplemented with courses (up to the required minimum) of interest to the student, sufficed to qualify the student to sit for the bar in any U.S. jurisdiction. With the advent of state-by-state determinations of appropriate law school curricula, that state of affairs may be coming to an end.

I encourage our readers to consider whether state imposition of law school requirements should be encouraged, or whether the Council, with its national participation and broad range of input, should continue to set the standards.

As always, there is much happening in legal education and bar admissions. I look forward to your comments on this issue and your ideas for the next Syllabus column.

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The Honorable Rebecca White Berch