The bar examination is much less of a check of authorized competence and extra of a Scantron-centric hazing ritual. A 3-year crucible of important studying {and professional} coaching capped off with just a few weeks of rote memorization for the sake of a check on topics the lawyer won’t ever advise a consumer on once more. In the actual world, a time-crunched, doctrinal, reminiscence check on points the place the lawyer has no expertise is known as “malpractice,” however for the summer season earlier than coming into follow we name it “the bar examination” and faux it is sensible.
This week, Utah introduced that it’ll formally introduce an alternate pathway to licensure to permit potential attorneys to skip the bar examination ritual altogether and earn their license by means of a mixture of formal schooling, supervised skilled expertise, and a tailor-made, skill-based examination. Anybody who needs to take the bar examination remains to be welcome to it, however the state now has one other path that isn’t solely enough for vetting competent practitioners… it’s most likely higher.
Utah started its journey towards a bar examination different again in 2020. With COVID locking down the nation, Utah bucked the nation’s hand-wringing bar examiners and pioneered an “emergency diploma privilege plus” admission program moderately than cram regulation grads into an examination corridor and see who coughed first. Spoiler alert: it labored. Legal professionals bought licensed. Purchasers bought represented. The judicial system didn’t collapse.
Whereas the Nationwide Convention of Bar Examiners, the surprisingly financially flush “non-profit” that monetizes this gatekeeping ritual spent the lockdowns ranting that diploma privilege a threat to civilization. With a straight face, they claimed the examination was crucial to guard the general public — and never with no sprint of sexist and racist tropes for taste — despite the fact that the proof weighed fully on the contrary. An ABA research monitoring legal professional self-discipline charges discovered no difference between a diploma privilege jurisdiction and states that cling to the bar exam.
One thing you’d suppose the NCBE would perceive since they’re primarily based in Wisconsin and led by a diploma privilege recipient.
Upon the success of the COVID-era trial program, Utah determined to discover a everlasting possibility. To that finish, the courts arrange a panel that includes a broad spectrum of authorized expertise from judges to professors to practitioners. Importantly, as BYU Regulation Professor Catherine Bramble, who served on the committee, defined the group included different pathway skeptics who joined the group anticipating to reject any transfer away from the bar examination. However after years of conferences with the NCBE, the scholarly analysis on legal professional licensure, and reviewing the empirical outcomes of the COVID experiment, the physique voted unanimously to undertake an alternate.
BYU Regulation Professor Catherine Bramble, who served on that committee after which joined the smaller job drive charged with settling the particulars, defined that the group rose to the problem to “construct a greater approach to license attorneys primarily based on understanding the abilities attorneys want for follow.” The talents-centric method attracts closely on the work finished by Professor Deborah Merritt, whose expansive research of the licensing course of and the sensible wants of attorneys earned a “fake news” shrug from the NCBE.
Unsurprisingly, primarily based on that response, neither the present bar examination — and the a lot ballyhooed NextGen examination — instantly glad the group as an answer assembly the recognized wants of future practitioners.
In keeping with Bramble, the duty drive flagged just a few key areas they wished to emphasise in any different course of. First, a dedication to curriculum studying. Candidates spent three years in regulation faculty… honor that. We’ve talked about that right here at Above the Regulation earlier than. To the extent particular coursework is required, work on ensuring it’s out there. Second, ample supervised sensible work to convey passable achievement. The brand new plan requires 240 hours of supervised work (of which 50 have to be professional bono), which is on prime of the ABA’s requirement that graduates full 6 credit score hours of sensible work. All informed, this quantities to over 500 hours of sensible work.
The ultimate leg of the brand new process is a written examination, although it’s a far cry from the prevailing bar examination. As a substitute, candidates will take a Utah-commissioned examination that gives the examinee a closed universe of supplies and asks them to carry out duties {that a} typical first-year legal professional could be requested to carry out. “Certainly one of our largest issues was that almost all practising attorneys couldn’t go the bar examination right this moment,” Bramble defined. “Both we’re all not competent attorneys, or the bar examination is fatally flawed at measuring competence.”
Keep in mind when Kathleen Sullivan of all people couldn’t pass a bar exam? Yeah, that.
With this in thoughts, the duty drive made it a precedence that the written examination be one thing {that a} practising legal professional might choose up and go proper now primarily based on their information and expertise. It’s not only a waste of time to check candidates on a doctrinal reminiscence check, it skews the entire course of towards candidates with extra assets. If in case you have disposable revenue for a prep course and the luxurious of taking off work, you’re more likely to pass the test. That’s not a helpful indicia of competence, and it closes off the occupation to potential attorneys that the general public wants to deal with mounting entry to justice issues.
That is the type of innovation that should take root throughout the nation. Return to first rules… what’s the purpose of licensure? If it’s attorneys who know find out how to competently and ethically do the job, what provides a state the arrogance that an applicant can deal with that responsibility?
It’s most likely not “cramming for a reminiscence check.”
Joe Patrice is a senior editor at Above the Regulation and co-host of Thinking Like A Lawyer. Be happy to email any ideas, questions, or feedback. Comply with him on Twitter or Bluesky for those who’re interested by regulation, politics, and a wholesome dose of faculty sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.
