ABA push boosts Uniform Bar Exam

One bar exam covering multiple states sounds like a good idea to third-year law student Burnell Grimes Jr.

A single test would remove some of the barriers to finding employment that are hindering today’s graduates. New lawyers would be able to more easily accept jobs in different jurisdictions since they would not have to incur the added cost of taking another test for licensure.

Grimes Jr.

“It’s very appealing because it gives flexibility to practice in different states,” the Indiana University Robert H. McKinney School of Law student said. “While the economy has improved, the legal market still is not the best. People coming out of law school are not securing legal employment.”

Grimes, who chairs the Indianapolis Bar Association’s Law Student Division, is not alone in his support of one bar exam.

During the 2016 American Bar Association Midyear Meeting in early February, the House of Delegates passed a resolution encouraging states to adopt the Uniform Bar Examination. The test, administered by the National Conference of Bar Examiners, has already been adopted in 19 states and the District of Columbia.

Resolution 109, advocating the use of UBE, was pushed by the ABA Law Student Division which supported the measure for the same reasons as Grimes stated. One national test would make the examination process more efficient and lower the expense for the applicants. Also, the exam would allow new lawyers to transport their scores and move for a job opportunity.

Sigmond

However, Carol Sigmond, president of the New York County Lawyers Association, characterized the promises of the UBE as an illusion. The partner at Cohen Seglias Pallas Greenhall & Furman P.C. in New York opposed her state’s move to adopt the test and spoke out against the resolution at the ABA House of Delegates meeting.

Law students, she said, are treating this as a panacea which will allow them to practice anywhere. But they will still have to pay for and pass character and fitness evaluations along with an exam on the laws of the particular state where they want to practice.

Requirements and collaboration

The Indiana Board of Law Examiners is aware of the momentum growing behind the UBE and is monitoring the situation, according to Executive Director Bradley Skolnik. But at this time, the board is focused on implementing the approved modifications to the Indiana Essay Examination set for February 2018.

States that have switched to the UBE are not accepting a completely new product. The Uniform Bar Exam is comprised of parts of tests already offered by the National Conference of Bar Examiners. Specifically, the UBE consists of the Multistate Bar Examination, six Multistate Essay Examination questions and two Multistate Performance Test tasks.

UBE-adopting states each set the score they will accept – for example, New York will only take a score of 266 or higher while Nebraska and Idaho have established minimum scores of 270 and 280, respectively. In addition, the scores have a shelf life. New York limits UBE results to nothing older than three years.

Missouri was the first state to offer the UBE, administering the test in February 2011. Before adoption, the state’s board of law examiners reviewed options for how to test applicants on Missouri laws. It considered adding a third day to the bar exam and then explored offering a continuing legal education class about the state’s laws.

The board finally decided to offer an online exam, the Missouri Educational Component Test. In addition to a test of 33 multiple choice questions, the Internet portal includes outlines of the state laws which can be accessed while taking the exam.

Joseph Figo, executive director of the Missouri Board of Law Examiners, explained the board did not want the state test to be a stumbling block. The goal is to introduce people to the differences between Missouri law and national law rather than be an impediment to practicing in the Show-Me State, he said.

Transferring a UBE score and meeting the state’s requirement for license is not without expense, like Sigmond pointed out. In Missouri, out-of-state applicants are charged $1,240, which includes the cost for the MECT and the character and fitness evaluation.

Notre Dame Law School Dean Nell Jessup Newton supports the UBE and likes Missouri’s approach. Applicants who cram for the bar exam will likely write the correct answers but they probably will not remember the material long term, she said. However, Missouri, with its outlines, tests on the applicants’ ability to look up information and apply it, which is what practicing attorneys have to know how to do.

Although bar associations across the country may not want outside attorneys moving into their jurisdictions, Newton pointed to national trends which show people change jobs more often and are more mobile than in the past. The UBE helps lawyers be flexible and increases the talent available as well as creates competition which, she said, is good for everybody.

The expectation is more and more states will adopt the UBE, especially now that the ABA has endorsed the exam. Yet as states implement the national test, the jurisdictions will have to collaborate to make portability aspect work, Figo said.

When New York became a UBE state, Missouri had to determine how it would handle transfer applications from third-year law students since they are permitted to sit for the bar in the Empire State. Law students are unable to sit for the bar in Missouri. Ultimately, Missouri decided to accept UBE scores earned by law students as long as those students meet the state’s rules for admission.

“I think as more jurisdictions adopt it and the fear of what people expect to happen doesn’t come to fruition, that will make (adoption) easier,” Figo said.

Homogenization

Sigmond said her biggest fear is that through the use of the UBE, unqualified attorneys will be able to get licensed and hang out a shingle – then get into trouble. The purpose of a bar exam is to protect the consumers, she continued, but the Uniform Bar Exam puts the public at risk because the test does not adequately measure knowledge of state laws and practice skills.

Benjamin Fryman, chair of the Indiana State Bar Association Young Lawyers Section, also raised concerns about the UBE and state laws. The national test does not serve citizens because local laws are not included and it puts states at risk losing their independence, he said. He believes if the UBE takes hold, state laws will become more homogenized and the country will move toward nationalism.

Closer to home, the founding partner at Schwerd Fryman Torrenga LLP in Valparaiso thinks the UBE will loosen attorneys’ ties to their local communities. Taking an individual state bar exam engages lawyers to make a commitment to a particular geographic area at the start of their careers. They then are more likely to become involved in civic life while building their practice, Fryman said.

Grimes advocated for a certification system that would ensure attorneys are competent in local laws and rules before they provide legal services. As for himself, even if the UBE were available, he has no plans to leave the Indiana after graduation. Grimes will take the state bar exam in July and will be joining the Indianapolis office of Faegre Baker Daniels LLP. “I love the city and the state,” he said.•