Is the Uniform Bar Exam creating underprepared lawyers?

By Martin Pritikin 

After decades of administering its own bar exam, New York joined the growing majority of U.S. states in 2016 and switched to the Uniform Bar Exam (UBE) instead. Last month, however, the New York State Bar Association announced that, in response to “anecdotal evidence that new lawyers don’t understand the rules for practicing in New York courts,” it was forming a task force to determine whether the state’s adoption of the UBE was responsible.

While it is certainly plausible that eliminating state-specific aspects of the licensure exam accounts for new lawyers being less familiar with state-specific rules, it is likely that other factors play a bigger role.

As an initial matter, it is important to understand what the UBE is and how it differs - or doesn’t differ - from state-specific bar exams. Virtually all bar exams administered across the country are two-day affairs, with one day being devoted to multiple choice testing and the other to “issue spotter” essays and performance tests (which include a small file of cases and facts and ask the examinee to draft a research memo or other work product typical for a first-year associate).

The National Conference of Bar Examiners (NCBE) creates and distributes the Multistate Bar Exam (MBE), a 200-question multiple choice test on seven foundational topics that is administered in every U.S. jurisdiction except Louisiana and Puerto Rico, both of which follow a civil law system. States that administer the UBE also utilize the NCBE’s Multistate Essay Exam and Multistate Performance Test (MPT). Other states develop their own essays and performance tests, which may test on state-specific material and/or general principles of law.

The first states adopted the UBE in 2011, and as of this writing, 34 states plus the District of Columbia and the U.S. Virgin Islands administer it, with more states considering it each year. New York is, to my knowledge, the only jurisdiction that has raised alarm bells about how the UBE may be impacting the preparedness of new lawyers.

To be fair, as reported in the New York Law Journal, Alan Scheinkman, Presiding Justice Alan of the Appellate Division, Second Department, who will co-chair the NYSBA’s study group, said: “We don’t approach this from a point of a prejudgment. We’re not certain there is a problem. We’re not certain there isn’t a problem. We’re trying to find out about it.” But there are reasons to be skeptical that the UBE is to blame for new lawyers’ deficiencies.

First, because New York had already been using the MBE and the MPT, that mitigates the impact of the state’s recent shift to the UBE. According to the analysis of one bar review company, “All in all, 70 percent of the UBE is identical to the outgoing NY Bar Exam.”

Second, although New York did jettison the state-specific portions of the bar exam, including 50 multiple-choice questions and five essays on New York law, it also now requires that applicants for licensure not only pass the bar exam but also complete a New York Law Course, which consists of 17 hours of online lectures on “important and unique principles of New York law,” and pass the separate 50 multiple-choice question New York Law Exam.

In other words, rather than eliminate the state-specific multiple choice portion of the New York bar exam altogether, the state has essentially exported it to another setting. So new lawyers must still demonstrate some proficiency with New York law and procedure.

Third, the “anecdotal evidence” of new lawyers’ unpreparedness is telling. The New York Law Journal cited state Supreme Court Justice Barry Ostrager as lamenting that “his law clerks receive half a dozen calls a day from lawyers asking for information that they should know or easily be able to find in the New York Civil Practice Law and Rules.”

I am not disputing that these lawyers are asking about things they should already know. But to me, the bigger question is: if they don’t know them, why are they calling the court’s staff for the answers? The fact that these lawyers would feel comfortable revealing their ignorance to those assisting the judge, and would take up their valuable time rather than research the questions on their own, says more about their baseline levels of professionalism and self-sufficiency than their knowledge of any idiosyncratic New York rules.

Many moons ago, I attended a top tier law school and, like many of my peers, graduated with great analytical skills but not knowing how to actually do any of the tasks lawyers do. I didn’t take a single course focusing on the law in the state in which I practiced (California), and didn’t know any state-specific rules or procedures. (The state’s bar exam did not yet test on California civil procedure, as it does now).

However, I did know that there were rules of court that I could read for myself, and I knew enough to know that I would be responsible for finding the applicable rules, understanding them, and following them. I also knew that there were practice guides that not only included form templates but explained the rules and gave tips on best practices and pitfalls to avoid.

One might counter that I was fortunate to be at a larger firm where there were plenty of partners or senior associates I could look to them for guidance, whereas the economic realities of today’s legal profession force many newer attorneys to open solo practices or join small law firms where such guidance is less readily available. But today’s new lawyers have listservs (not available when I graduated), alumni associations, and plenty of other networking opportunities to connect with mentors who can show them the ropes or at least answer some basic questions.

Calling court clerks would have been my last and least preferred option. In fact, I was loathe to even ask more experienced attorneys questions that would reveal my ignorance on a topic unless I had first researched the issue and tried to find the answer myself.

Law school is only three or four years (some think it should be just two), and there are so many things that need to be accomplished in that short amount of time. It may not be realistic to expect students to internalize all the rules and procedures they will need to know before they graduate, just like they cannot be expected to know the applicable law on every substantive topic they are likely to encounter in practice. But it is fair to expect them to know how to research those questions - and more fundamentally, to understand that they have an obligation to research them and ensure they know the current law governing their issue in their jurisdiction. This sense of obligation is the real meaning of “professional responsibility.”

This is the mindset that new lawyers will need to succeed. Neither the New York Bar Exam, nor the UBE - nor any other standardized test, for that matter - is likely to assess that quality.


Martin Pritikin is the dean of Concord Law School at Purdue University Global (concordlawschool.edu), the nation’s first fully online law school. He can be reached at martin.pritikin@purdueglobal.edu.