South Carolina Lawyers Weekly
The one thing every attorney has in common is that each has his or her own personal version of a bar exam horror story. Talk to a lawyer long enough, and you’re likely to hear tales of crowded auditoriums, incessant pencil tapping and fellow test-takers who cracked under the pressure. Indeed, many attorneys have more than one bar exam story because they were forced to take the test a second or even a third time after landing a job in a different state early in their career.
But amid a tight job market that has left many young attorneys scrambling to find employment wherever they can, a growing number of states have moved to adopt the Uniform Bar Exam. The UBE promises to eliminate the need for law school graduates to take more than one bar exam for geographic reasons. Recent graduates who take and pass the UBE in one state can use their score to gain approval to practice law in another UBE state. More than 26,800 law graduates have taken the UBE since 2011 and roughly 2,300 have transferred their scores to another UBE jurisdiction.
In January, the South Carolina Supreme Court announced the state would be moving to the UBE in February 2017, making it the 19th state to adopt the test. South Carolina is only the second Deep South state, behind Alabama, to embrace the UBE.
The North Carolina Board of Law Examiners has formed a committee to study whether the Tarheel State should adopt the UBE. The committee will hold its first meeting in April and could make a recommendation as early as later this year.
Robert Wilcox, dean of the University of South Carolina School of Law, says if North Carolina does decide to adopt the UBE, it could be a huge boost to students in both Carolinas who don’t have a job lined up by the time they take the bar exam.
“We’ve always had a lot of students who sit for the South Carolina bar exam but then find a job across the border in Charlotte or Raleigh. Having the ability to carry their scores with them would greatly increase the number of opportunities they are able to pursue,” said Wilcox, who had to take three different bar exams when he was first starting out so he could pursue job opportunities. “It would have saved me a whole lot of trouble if we had the UBE 35 years ago.”
But the new test raises questions about what the Carolinas want to get out of the bar exam process.
Gaining momentum
The UBE first came online five years ago, but it took some time for many states to get over their concerns about the test. Most of the states that agreed to offer the UBE are located west of the Mississippi River.
But when New York announced last May its intent to become a UBE state, it marked a tipping point for the effort to spread the test nationwide. As the home of one of the largest lawyer populations in the country, New York carries a great deal of sway when it comes to new testing procedures. The addition of New York is expected to greatly increase the number of UBE scores earned and transferred annually because the state tests more than 15,000 candidates each year, according to figures from the National Conference of Bar Examiners. Since New York embraced the UBE, Washington, D.C., has signed on, and Massachusetts, New Jersey and Vermont have taken steps toward full adoption. And pressure is growing for California to join the ranks of UBE states.
The UBE got another boost earlier this month, when the American Bar Association’s House of Delegates approved a measure calling for “expeditious” adoption of the UBE across the country.
“Historically, the UBE was thought of as a device for smaller states that couldn’t afford the apparatus for developing their own bar exam, but that has clearly changed,” says Campbell Law School Dean J. Rich Leonard.
The UBE is prepared and coordinated by the NCBE and is composed of several smaller tests, which are uniformly graded. As the ABA House of Delegates noted when it threw its support behind nationwide adoption of the UBE, many of the sub-tests are already being offered in most jurisdictions.
The Multistate Bar Examination, for example, is now offered in 54 states and territories. The other two pieces of the UBE are the Multistate Essay Examination and the Multistate Performance Test, which are offered in 31 and 41 jurisdictions, respectively. “In effect, a common licensing test is already in force,” the ABA’s report said.
Each UBE state retains the right to set its own transfer requirements and has the option of requiring additional state-specific test questions. South Carolina is in the process of setting the rules for how its UBE is administered, including whether there will be a state-specific add-on test.
How the test would be administered in North Carolina is among the issues being studied by the N.C. Board of Law Examiners, says NCBLE Chairwoman Jaye Meyer, a partner in the Raleigh office of Tharrington Smith. Meyer said New York’s decision to go with the UBE was part of the reason her organization began exploring the idea.
“We’re still in the very beginning of the process,” Meyer said. “There’s no timeline for when the recommendations will be made yet.”
Meanwhile, many in North Carolina are waiting to see what the NCBLE recommends before deciding whether to endorse the UBE.
North Carolina State Bar General Counsel Katherine Jean said it was too early to take a position on the test, and Campbell Law’s Leonard said he wanted to “see what all of the evidence says” before giving an opinion.
Real benefits?
Supporters of the UBE argue that making bar exam results portable would provide a number of benefits that go beyond reducing stress on young lawyers.
As the ABA’s House of Delegates noted when it came out in support the UBE, women are much more likely than men to move out of state within the first five years of practice. Going with the UBE would help female law graduates in particular to avoid the time, money and stress that come with taking multiple bar exams, should they have to move for work. That portability could also help to close the access-to-justice gap because it would be easier for new graduates to pursue jobs in underserved communities, the delegates said in a report.
Additionally, the delegates said the UBE would save states a considerable amount of money because they wouldn’t have to devote resources to coming up with a new complete test each year.
But the UBE does have its detractors. When New York was going through the approval process, many members of the legal community said the test would do little to address the structural problems created by the current bar exam process.
They argued the increased reliance on multiple-choice questions might adversely affect those who do not perform as well on those types of tests. The thinking was that students may feel greater pressure to take expensive prep courses, making it harder for low-income students to get a fair shot at becoming lawyers.
Law professors Mary Lynch of Albany Law School and Janet Thompson of the Washburn University School of Law, who serve as co-presidents of the Clinical Legal Education Association, said that pressure could further exacerbate the diversity problem many law schools currently face.
“Thus, CLEA is concerned that the adoption of these proposed changes would have a disparate impact on diversity candidates to law schools in New York; candidates who have the range of personal and professional experiences that would broaden and deepen the education of all law students, but whom law schools would not prioritize when making admissions decisions,” Lynch and Thompson said in a comment letter.
Others said they were concerned the UBE would do little to address the problem of falling bar passage rates many law schools have seen in recent years.
Course correction
Should North Carolina decide to adopt the UBE, law schools in the state might be forced to rethink their course offerings to better prepare students for the test. However, many of those efforts are already underway thanks to recent changes to the ABA’s accreditation standards.
In 2014, the ABA completed a six-year project to update law school accreditation standards, which included a requirement that law schools provide students with more experiential training.
USC’s Wilcox said his law school has already increased its focus on experiential learning, both to comply with the ABA standards and to give employers what they say they want out of law students.
“We want to make sure our students are prepared for employment and that employers do not have to spend as much to train them on practical drafting,” Wilcox said.
That said, Wilcox does not expect that South Carolina’s decision to adopt the UBE will have a significant impact on USC’s curriculum. But it could bring a shift in the courses students choose to take. Wilcox pointed to USC’s insurance law and secure-transactions law courses as examples.
“With the UBE, I would anticipate we will see those courses having more moderate enrollment, rather than the extraordinary enrollment we saw in the past,” Wilcox said.
But until the South Carolina Supreme Court works out the details about what the state’s version of the UBE will look like, Wilcox said he will spend a lot of time answering questions from students about what the change means for them—including those who are graduating before having the option of taking the UBE.
“I’ve heard from students who say they wish the UBE had been adopted a year earlier so they could transfer their scores. We had some question whether they should wait a year to take the test,” Wilcox said. “But in the end, they all seemed to decide it was worth it to go ahead and get the bar exam out of the way.”
Follow Jeff Jeffrey on Twitter at @SCLWJeffrey.
