Oregon State Bar Bulletin JULY 2015
A Joint Message to the Bar:
Oregon Considers the Unified Bar Exam
By Rich Spier & David F. White
Note from OSB President Rich Spier: I have asked David White, chair of the Oregon Board of Bar Examiners, to be my co-author this month on the important subject of the Uniform Bar Examination.
Representatives from the Oregon Supreme Court, the Oregon State Bar Board of Governors, the Board of Bar Examiners and each of the three Oregon law schools have been meeting for the last year to study the possibility of transitioning to the Uniform Bar Exam (UBE). The exam tests the knowledge and skills that every lawyer should demonstrate before becoming licensed to practice law. Because adopting the uniform exam would be a significant change, we want to hear your thoughts and any concerns about this possible change. Comments may be submitted by Sept. 16.
The Uniform Bar Exam was first administered in 2011. The uniform exam is prepared by the National Conference of Bar Examiners (NCBE) and is administered, graded and scored by participating jurisdictions. Sixteen states, mostly in the western part of the country, and the District of Columbia have adopted the UBE. In May, New York announced plans to implement the UBE in 2016. The NCBE website provides a clear map showing the west-wide trend of adopting states and lists which 16 states are currently UBE jurisdictions. See https://www.ncbex.org/exams/ube.
What is the Uniform Bar Exam?
The UBE consists of three components. The Multistate Bar Examination (MBE) is a six-hour, 200-question multiple-choice examination covering seven subject areas: civil procedure, constitutional law, contracts, criminal law, evidence, property and torts. The Multistate Performance test (MPT) is a writing assignment based on materials and case law provided as part of the exam. The Multi-state Essay Examination (MEE) is comprised of six essay questions testing legal knowledge and reasoning.
The structure of the current Oregon bar exam is identical to the uniform bar exam structure. The current Oregon exam includes the MBE, MPT and six essay questions.
The primary difference between the two examinations is the essay questions’ content; the subject areas tested are not identical. The subject areas currently tested on the Oregon bar exam that are not tested under the Multistate Essay Exam are: administrative law (federal and state); federal income tax; Oregon civil procedure; Oregon ethics; and Oregon evidence. The two subject areas tested by the multistate essay exam that are not currently tested on the Oregon bar exam are conflict of laws and family law.
Impact of Adopting the UBE on Admission
Adopting the UBE provides portability for applicants’ exam results. Law school graduates taking the uniform bar exam in other states could use the test scores for possible admission to the Oregon bar. Applicants taking the uniform bar exam in Oregon could likewise use those test scores for possible admission to the bar in other UBE states.
This is distinct from the current reciprocity rules for admission to the Oregon bar. Reciprocity admission allows lawyers to seek admission by motion — without taking the bar exam — if the lawyer has been admitted in another jurisdiction and has practiced law for at least five years, or three years in Alaska, Idaho, Utah and Washington. Adoption of the UBE would provide a similar portability to recent law school graduates. If an applicant’s UBE test score exceeded the Oregon standard passing score, the applicant would be deemed to have the required knowledge and skill for bar admission.
Oregon (through Board of Bar Examiners recommendations to the Oregon Supreme Court) would continue to have independent authority in the following areas:
Character and fitness. The Oregon Supreme Court and the Board of Bar Examiners review applicants for character and fitness. Under Oregon law, successful applicants must possess “good moral character,” which includes honesty, fairness and respect for others and the law. Conduct that raises a substantial doubt about whether an applicant possesses these qualities is a basis for denying admission. This is a distinct requirement for admission to the bar, separate from passing the bar exam which tests an applicant’s competence to practice law. Adoption of the UBE would not impact this requirement or its administration.
ADA decisions. The Oregon Supreme Court and Board of Bar Examiners would continue to make accommodations decisions under the Americans with Disabilities Act for applicants taking the Oregon UBE exams. Oregon would be bound to recognize UBE scores from other jurisdictions, which may reflect accommodations in testing from the testing jurisdiction.
Pass scores. The Board of Bar Examiners would continue to establish a pass score, which is the test score needed to demonstrate the required competence to practice law in Oregon. Each UBE state retains authority to set its own pass score that applies to each law school graduate taking the UBE, whether in Oregon or in another UBE state.
Local law. States retain the authority to assess candidates’ knowledge of jurisdiction-specific content through a separate test, course or some combination of the two, if the jurisdiction so chooses.
Expiration period for UBE scores. Adoption of the uniform exam provides applicants with portability for UBE scores. Each jurisdiction determines how long it will recognize a UBE score from another UBE jurisdiction. The expiration period in current UBE states ranges from 18 months to five years.
Eligibility. The Oregon Rules for Admission approved by the Oregon Supreme Court state who is eligible to sit for the bar examination. The UBE would have no impact on eligibility requirements.
Grading. The Oregon bar examiners will continue to grade the parts of the exam that require writing — the MEE and the MPT. The multiple choice MBE would continue to be graded by the NCBE.
What About Oregon Topics?
The consensus of the UBE Committee is that, if Oregon transitions to the UBE, then Oregon also should implement a local component or CLE covering the topics listed above that are currently included on the essay component of the Oregon bar exam but that are not included on the multistate essay exam. In addition, the group supports including a course component regarding the distinctive culture of the Oregon bar and the importance of civility and collegiality within the Oregon bar. Finally, the UBE Committee acknowledges that the Oregon law schools and law students would need some time to adjust class planning in light of the new test topics.
Benefits and Potential Impacts
New law graduates would be the prime beneficiaries of a transition to the UBE. With the difficult legal market, new law graduates often do not have employment confirmed when they must register for the bar exam. By the time the employment comes along, it may be in another jurisdiction. The result may be that a new graduate must wait to take a second bar exam in another jurisdiction. This can lead to long delays before a new law graduate can enter the legal profession. This delay impacts not only new law school graduates but also employers and the public.
Putting recent law graduates and their employers in this position might be warranted if bar examinations in different states were significantly different. But that is no longer the case. The Oregon bar exam is substantially the same as the UBE. Any local law differences can be addressed through supplemental testing or a CLE requirement.
Nevertheless, the UBE Committee wants to be sure to consider all relevant effects of transitioning to the UBE. For example, increasing portability for recent law school graduates could result in more lawyers admitted in Oregon. The impact that adoption of the UBE might have on the number of lawyers admitted in Oregon is difficult to predict given the complex variety of factors at play, including the opportunity of Oregon applicants to transfer to other UBE states, the legal markets in UBE states and the fact that Oregon’s standard pass score is among the highest. Nevertheless, any applicant with a UBE score that exceeds the Oregon standard could be admitted in Oregon, subject to passing character and fitness review and satisfying any local law component test or course requirement. The potential increase in the number of lawyers from out of the state could impact the legal practice and culture of our bar.
In addition, implementing a local law course and potential local law exam will increase bar exam-related costs that will need to be included in application fees. The amount of this cost increase and the fee impact will vary depending upon the requirements ultimately adopted and the means of satisfying those requirements (e.g., online or in-person courses).
Finally, adopting the UBE would transfer some control over the bar exam to the National Conference of Bar Examiners. Given the similar structure of our current Oregon bar exam and the UBE, this is unlikely to have an immediate impact. Nevertheless, future changes to the UBE by the NCBE would become part of the Oregon bar exam.
We each recognize that we are privileged to be members of the Oregon bar. We value working with colleagues who are committed to the values of integrity, fairness, diversity and increasing access to justice. We are grateful that Oregon lawyers recognize that the adversarial process requires no compromises in terms of civility, collegiality and a common commitment to fairness and justice. We seek your input because we want to ensure that adoption of the UBE is consistent with — and would not undermine — these foundational values and the nature of our practices in Oregon.
After consideration of your comments, the Board of Bar Examiners will make a recommendation to the Oregon Supreme Court and the court will determine whether to adopt the uniform bar exam. Please submit comments by Sept. 16 to UBEcomments@osbar.org
ABOUT THE AUTHORS
OSB President Rich Spier is a mediator in Portland. David F. White of Portland is chair of the Oregon Board of Bar Examiners.
© 2015 Rich Spier & David F. White