The North Carolina Board of Law Examiners announced in an October 27, 2016 meeting that the Board voted to approve the adoption of the Uniform Bar Exam with the first administration of the exam scheduled for February 2019. For those familiar with the UBE, this news brings about strong opinions of the future of the legal profession in North Carolina. For those unfamiliar with the UBE, the news may seem insignificant. For others, the news will bring about a flood of inquiry. While the Board’s actions are significant, there remain details to be ironed out and the action is still subject to the approval of both the North Carolina State Bar and the Chief Justice of the North Carolina Supreme Court. The information here should—hopefully—shed some light on the possible future of attorney licensing in North Carolina and answer some of the questions people may have about the UBE and what it means for them.
The Uniform Bar Exam is not a new concept. The UBE was conceptualized by the National Conference of Bar Examiners, and the first jurisdiction to administer the UBE was Missouri in February, 2011. Since then, twenty-five jurisdictions have adopted the UBE including: New York, New Jersey, Washington, Colorado, Massachusetts, Connecticut, and Washington D.C.. The idea behind the UBE is a uniform standard of skills and knowledge that a lawyer should be able to demonstrate before licensure. Additionally, the UBE provides a portable score which allows admission to other UBE jurisdictions based on a test taker’s score in one UBE jurisdiction. Though the UBE greatly standardizes the examining process, jurisdictions which adopt the UBE still reserve a great deal of autonomy in admitting lawyers to the bar. Jurisdictions which administer the UBE still make all character and fitness decisions, grade the essay portions of the exam, set the passing multiple choice exam score for that jurisdiction, determine what UBE scores may be imported into the jurisdiction, determine who may sit for the bar exam, and make many other policy decisions.
The exam itself has three main portions: (1) the Multistate Bar Exam (MBE), (2) the Multistate Essay Exam (MEE), and (3) the Multistate Practice Test (MPT). In addition to these exams, many states require an additional state component which ensures the test taker’s competency to practice in the particular jurisdiction. The MBE is the familiar 200 question multiple choice exam testing seven subjects that many jurisdictions—including North Carolina—already use as part of their bar exam. With respect to this part of the UBE, test takers will be on familiar ground. The MEE will be another somewhat familiar portion of the UBE. This portion of the UBE consists of six essay questions which test the knowledge of the law of UBE jurisdictions, but is not state specific. Though the essay prompts will be drafted by the NCBE, each individual jurisdiction is responsible for grading the answers, with guidance from the NCBE. The MPT will be the most unfamiliar portion of the UBE. The MPT is a test of real-life lawyering skills. In the MPT section two closed universe problems are presented which require the test taker to respond with some type of work product such as a will, complaint, brief, or client letter. The MPT is also graded by the individual jurisdiction.
Once a portable score is obtained, that score can be used to obtain admittance to any UBE jurisdiction in which the score earned is a passing score.
In addition to the MBE, MEE, and MPT, at least 9 of the 26 UBE jurisdictions also include a state specific component designed to ensure competency with respect to local laws within the jurisdiction that is not tested by the UBE. These local law components can vary in format from additional state specific essays, a required CLE, to an online course and exam. Missouri, the first state to administer the UBE considered many of these local law alternatives before settling on an online course and exam for bar applicants. New York has required the same type of local component. The NC Board of Law Examiners had indicated that a North Carolina local law component is likely to be included in administering the UBE if adopted. As of now, there is no indication on what format that local component will have.
The hallmark of the UBE is the portable score, which allows a UBE examinee to transfer her score to any UBE jurisdiction and gain admittance to that jurisdiction without having to take another bar exam. An individual’s UBE score is comprised of the MBE score (50%), the MEE score (30%), and the MPT score (20%) for a total UBE score on a scale of 400. Each Jurisdiction assigns it’s own passing score and any additional requirements for admittance to the bar in that jurisdiction. For a score to be portable, the MBE, MEE, and MPT must be taken in the same UBE jurisdiction during the same exam term. Once a portable score is obtained, that score can be used to obtain admittance to any UBE jurisdiction in which the score earned is a passing score. For example, if you sit for the UBE in South Carolina, where the passing score is 266, you could gain admission to any jurisdiction where the passing score is equal to or less than 266, such as Alabama, where the passing score is 260. Of course, other jurisdiction specific requirements must be met as well. If you sit for the UBE in Colorado, where the passing score is 276, but received a portable score of 270, you could not be admitted to the bar in Colorado on that score, but you could transfer that score to a jurisdiction like South Carolina or Alabama.
The portability of UBE scores should decrease the employment gap between graduation and an attorney’s first job as the need for multiple bar exams is eliminated and the options for young attorneys seeking licensure increase.
Score portability is the single greatest benefit for examinees, employers, and the legal profession. Current law students in North Carolina, if the UBE is adopted, will experience the temptation to delay their licensure until the first administration of the UBE in their state. For those who sit for the UBE and obtain a portable score, their job prospects will be greatly increased as the number of jurisdictions in which they can be easily licensed increases. Also, those who decide for the UBE have the ability, because the grades are scaled to each jurisdiction, to essentially forum shop and take the exam in a jurisdiction where they believe they can perform comparatively well and get a higher score. Already licensed attorneys will benefit little from the portability of UBE scores, unless they themselves sit for the UBE as they have not obtained a portable score. Employers’ benefits from the UBE will correspond with those benefits the UBE examinees receive from score portability.
The pool of potential employees will be broadened for those employers within a UBE jurisdiction. The portability of UBE scores should decrease the employment gap between graduation and an attorney’s first job as the need for multiple bar exams is eliminated and the options for young attorneys seeking licensure increase. Generally, the increased adoption of the UBE should standardize the assessment of an individual’s competency to practice and promote a standard expectation of lawyering skills across the country. Finally, the UBE may benefit jurisdictions struggling to maintain a market of competent lawyers within the jurisdiction as the portable score would make it easier for competent lawyers to transfer to those jurisdictions.
Despite the joyous news of score portability, the UBE is not without criticism. On a political level, some have expressed concerns that the implementation of a uniform bar exam does not follow the country’s system of federalism since it removes much of the professional regulation traditionally reserved to the states. Another issue is that the UBE only tests general principles of law, but a substantial portion of the law that will be referenced in practice will be state specific. The UBE does not account for a lawyer’s knowledge of any state specific laws or procedures.
Though the purpose of the UBE is uniformity, individual jurisdictions still vary on many points including how old a transferred score can be for that jurisdiction, what education is required to sit for the UBE in that jurisdiction, what character and fitness is required to sit for the UBE, and what test accommodations may be obtained. Further concerns about the lack of uniformity in the UBE arise from the way the exam is graded. Since each individual jurisdiction grades the written portion of the UBE—and because those are graded according to how well an examinee did compared to others in the same jurisdiction—the same exam could receive different scores depending on the jurisdiction. This means that UBE scores are inaccurate if they are supposed to measure the universal ability of an examinee. Currently, the NC Board of Law Examiners’ vote to adopt the UBE is awaiting approval by the North Carolina State Bar and Chief Justice of the North Carolina Supreme Court.