June 16, 2010 – Aiming to open the borders of employment for attorneys, states have begun to consider adopting a Uniform Bar Exam (UBE), which would allow exam takers in one state to transfer scores to other states that administer the UBE rather than sit for multiple bar exams.

Despite concerns that a UBE does not test the particularities of state law, the UBE trend is emerging. In April, Missouri became the first state to adopt a UBE. Kellie Early, outgoing director of the Missouri Board of Bar Examiners, thinks a UBE can properly test lawyer competency and provide other benefits to lawyers that want to access a national job market.

“In considering a UBE, we felt that we could still meet our responsibility for protecting the public by administering a bar exam that verified the knowledge and skills necessary to practice law, while providing our applicants with a portable score,” said Early, who recently took a job with the National Conference of Bar Examiners (NCBE).

The NCBE, based in Madison, is a non-profit corporation that creates standardized bar exam tests, conducts character and fitness investigations, and assists state bar exam authorities in developing and maintaining uniform testing standards. Many jurisdictions, including Wisconsin, use bar exam components developed by the NCBE, which is leading the push for a UBE.

Jane Heymann, assistant dean for career services at the University of Wisconsin Law School, said a UBE would be tremendous for students in terms of moving from state to state without the hurdle of a bar exam, especially when most job postings she sees require the applicant to be licensed in a particular state.

At Marquette University Law School, assistant dean for career planning Paul Katzman said a UBE would greatly facilitate flexibility in searching for a job, but cautioned that such facilitation could increase competition for jobs in destinations popular for lawyers.

“The majority of our graduates prefer to remain in Wisconsin and for those that are motivated to go outside the state … the investment in terms of money and time devoted to exam preparation is a deterrent unless a position has already been secured out-of-state,” said Katzman, who from a career planning perspective, welcomes a UBE.

But some see value in taking multiple bar exams. Milwaukee County Circuit Court Judge Ellen Brostrom – who took four bar exams within a seven-year period – said each bar exam provides an opportunity to “refresh one’s recollection” of the law. Judge Brostrom neither opposes nor supports a UBE, but found benefits in taking more than one.

“It probably wasn’t necessary for me to take four bar exams, but I don’t think it’s a bad thing,” said Judge Brostrom, who graduated from UCLA Law School in 1995, then took the California, Minnesota, and Texas bar exams before taking Wisconsin’s in 2002. “Each exam was a valuable experience that contributed to my knowledge of the law.”

According to Erica Moeser, director of the NCBE, the biggest complaint is that a UBE won’t test state law specifically. The UBE is designed to test laws of general application – majority or uniform law. But Moeser thinks states can ensure state law proficiency in other ways.

“Ensuring state law competency is not an unreasonable concern,” Moeser said. “But a one-day exam can’t test the breadth of someone’s knowledge of state law distinctions. An educational component like the one Missouri will implement ensures that students are exposed to all significant state law distinctions,” she said.

Arguments aside, Missouri isn’t the only state moving in the direction of a UBE. Moeser said 10 to 20 other states are currently considering it. Minnesota is one of them. Wisconsin is not.

According to Jacquelynn Rothstein, director of the Wisconsin Board of Bar Examiners, Wisconsin has not considered a UBE.

After all, in a state where the diploma privilege supports most bar admissions (55 percent in 2009), changing the state’s bar exam structure is not a pressing concern. If neighboring states start adopting one, however, is it possible Wisconsin will consider it?

The traditional bar exam

Currently, 56 jurisdictions administer a state bar exam. The system is designed to test general applications of law and, in many cases, the laws of a particular state.

Many states administer three separate tests produced by the NCBE: a multistate essay exam (MEE), a multistate bar exam (MBE), and a multistate performance test (MPT). Each state decides the relative weight that each test will carry to determine a passing score.

In 2009, 53 of the 56 testing jurisdictions used the MBE, 34 jurisdictions used the MPT, and 23 jurisdictions administered the MEE. Twenty-one jurisdictions – including Wisconsin, Iowa, and Illinois – currently use all three. Thus, many states use the same testing instruments developed by NCBE. Wisconsin has administered the MBE for many years and currently incorporates some MEE and MPT questions into its bar examination.

The MBE consists of 200 multiple choice questions covering six topics: contracts, criminal law and procedure, constitutional law, evidence, real property, and torts. The MPT is a written exercise that gauges fundamental lawyering skills in a realistic situation, using facts and law. Finally, the MEE includes nine 30-minute essay questions covering many areas of law.

The MBE score is portable, meaning test-takers can transfer an MBE score from one state to another if the receiving state allows it. In 2010, 36 jurisdictions, including Wisconsin, will allow MBE transfers. The MPT and MEE scores are non-transferable.

On the MEE, some states, including Wisconsin, require test-takers to apply the law of the state administering the test. Thus, Wisconsin requires test-takers to apply Wisconsin law. This allows states that adopt this approach to ensure that test takers know specific state law.

But states like Missouri are abandoning the idea that knowing state specific law on a bar exam is a prerequisite to practicing law in the state, according to Early.

“We have focused on what we see as the foundations of legal knowledge and skill – that is, an ability to identify the correct issues, analyze those issues, and apply the facts to law. We aren’t necessarily testing that a student know the particularities of state law,” Early said.

Heymann said U.W. Law School tries hard to incorporate Wisconsin law into its courses because of the diploma privilege, but like most law schools across the country, teaching state law is not the focus. And from what she recalls, bar exams don’t stress it.

“I took the Illinois bar exam years ago,” Heymann said. “Afterwards, I don’t remember feeling as though I was tested specifically on Illinois law.”

The resistance, Heymann says, will come from heavy state regulators like California, whose state laws may depart significantly with a majority in certain areas. “It would be a bit presumptuous to think that someone who passes a bar exam in Wisconsin is ready to practice law under the laws of California,” Heymann said.

But Early said law professors and deans have also expressed a desire for a uniform test, which would allow them to better prepare students who are taking bar exams across jurisdictions.

“We hear a lot from professors and deans and others involved in preparing students for the bar exam,” Early said. “Bar exam preparation is difficult because students aren’t necessarily taking the bar exam in the same state they attended law school.”

The Uniform Bar Examination

A proposed UBE, like the one adopted in Missouri, uses all the same testing instruments that many states already use – the MBE, MPT and MEE.

The only difference is that on the MEE portion, a student would apply majority or uniform rules of general application rather than the laws of a specific state.

Moeser said this de-emphasis on state law would allow states to gauge competence using uniform, quality testing instruments. It would also provide greater flexibility in transferring scores to other UBE jurisdictions.

“In terms of employment opportunities, a UBE would promote portability,” Moeser said. “Under the current system, graduates looking for jobs are very restricted. A UBE allows them to transfer scores and open more doors to employment.”

The UBE would especially benefit newer attorneys, who have not reached the reciprocity benchmark to be waived into admission without taking a bar exam, usually five years in most states. Often, attorneys join firms with clients in multiple states and must take more than one bar exam. Under a UBE system, for instance, a successful UBE score in Wisconsin could allow a waiver of the bar exam requirement to become licensed in Illinois, Iowa, and Minnesota.

“The argument is that, okay, I have these marketable services, and I want to move my services somewhere else. Why should I have to pause?” said Judge Brostrom. “At the same time, is it such a bad thing to have to refresh your recollection of the law?”

According to Moeser, critics concerned that a UBE would not test state specific material may be unaware that a UBE does not prevent a state from adding a local section to the UBE or establish educational components to address state law as a requirement for admission.

“Most states are already using these testing instruments,” Moeser said. “Having a uniform test based only on these three testing instruments will increase quality. States can still choose what score is necessary to pass, and create add-ons or educational components to test state law.”

Bucky Askew, the American Bar Association’s consultant on legal education, recently told South Carolina Lawyers Weekly that a UBE “would give states assurance that its applicants would perform at a certain level of the uniform bar exam, regardless of where they take it.”

In terms of assessing state law competency, Missouri is working out the details for an educational component on Missouri-specific law. Applicants for admission will be required to fulfill this educational component before Missouri will admit them to practice, according to Early. Other states are considering similar mechanisms to ensure state law proficiency.

Whatever the benefits or pitfalls of a UBE, the argument is surfacing quickly.