Does a Uniform Bar Exam Call for a Uniform Regulatory System?

Uniform Bar ExamSlowly but surely, the Uniform Bar Exam is being adopted across our country. In 2018, several state supreme courts, including Illinois with over 94,000 registered attorneys, announced that they would adopt the Uniform Bar Exam (UBE).

We are adopting a national understanding of the minimum acceptable knowledge, skills and competencies of lawyers to be admitted to practice law. Is it reasonable similarly to adopt a more uniform regulatory system of lawyers once they have been admitted to the practice of law? Are we moving toward more national standards for attorney regulation?

Uniformity of State Bar Examinations

The reality is that most jurisdictions have administered portions of the UBE for a number of years.  The UBE is coordinated by the National Conference of Bar Examiners (NCBE). It is composed of several parts that have been variously administered by the 56 different U.S. jurisdictions, in whole or part, for decades.

  • The Multistate Bar Exam (MBE) is a 200 question multiple choice test covering such areas as civil and criminal law and procedure, contracts, constitutional law, evidence, real property and torts. Since 1972, the NCBE has produced this test with the stated purpose to assess how an examinee can apply legal principles and reasoning to analyze fact patterns. According to the NCBE, 54 jurisdictions used the MBE in 2017.
  • The Multistate Essay Exam (MEE), consisting of six thirty-minute essay questions, has been produced by the NCBE since 1988. The purpose is to test examinees’ ability to identify legal issues in a hypothetical situation and present reasoned analyses of the legal principles relevant to solutions. This component differs from the MBE because of its focus on communication in writing. 41 jurisdictions have now adopted this component.
  • The Multistate Performance Test (MPT) consists of two ninety minute task items designed to test an examinee’s ability to use lawyering skills in a realistic setting, such as separating relevant from irrelevant facts, identifying and resolving ethical dilemmas and sorting detailed factual materials. Produced since 1997, 47 jurisdictions have now adopted one or both of the MPT items. (UBE jurisdictions used both and weighted this component at 20%.)

Since 1980, the NCBE also has produced the Multistate Professional Responsibility Exam consisting of 60 multiple choice questions including such topics as regulation of the legal profession, attorney-client relationships, client confidentiality, conflicts of interest, the different roles of attorneys, safe-keeping clients funds, etc.  53 jurisdictions used this test in 2017.

Attorney Mobility and the UBE

The rationales stated by various state supreme courts in announcing the adoption of the UBE are fairly consistent. Often reiterated themes are that the legal field continues to evolve such that multi-jurisdictional or cross-border practice is common and that the UBE results in a “portable score” that lawyers can use to apply for admission in other UBE jurisdictions.  In Illinois, as in other states, all of the UBE components had been utilized as parts of the Illinois Bar Exam for a number of years.  And the state supreme courts recognize that the UBE is a national standard that both protects the public and allows cross-border practice that effectively serves the public.

According to the NCBE’s Bar Examiner magazine, 27 jurisdictions administered the UBE in 2017, resulting in 26,897 UBE scores earned.  In terms of “porting” the scores to another jurisdiction, coincidentally, the same total number of scores were transferred out of UBE jurisdictions and into UBE jurisdictions: 3,776.  In looking at the table of which states “lost” or “gained” examinees to or from another UBE jurisdiction, no discernable trend emerges.  Arizona, Colorado and New York had more scores transferred out than into their states.  Connecticut, Kansas and Washington D.C. had more scores transferred into their jurisdictions than out.

Time will tell whether this mobility will address the issue of attorney under and un-employment or the serious access to legal services gap.

Attorney Employment and Access to Justice Issues also Animate Moves to Amend the Regulatory Rules

A rationale underpinning the growing adoption of the UBE is a recognition that lawyers should be allowed to meet the consumer demand for effective and efficient client service across state borders. Applying this same rationale to the regulation of attorneys following bar admission should lead to more coordination, if not uniformity, among the states as they regulate the ethics of practicing lawyers.  Several examples—pro and con–come to mind.

  • Amendments to the ABA Model Rules affecting lawyer advertising (Model Rules 7.1 through 7.5) have been under consideration for several years. The Association for Professional Responsibility Lawyers came out with a report in 2015 noting the patchwork of different states’ versions of the rules of professional conduct that spawn confusion and attorney complaints against one another but few, if any, public complaints. That report and a supplemental report issued the following year have been the basis for amendments to the state advertising rules in Virginia and similar proposals under consideration in Washington and Oregon.  The ABA Standing Committee on Ethics and Professional Responsibility held hearings and received comments from numerous lawyers about the need for uniformity and easing restrictions in the Rules that practically operate to prohibit lawyers from reaching potential clients.  Rather than developing something bold that will serve as a model for states to follow, in my opinion the Committee put forth a “tweak around the edges” proposal that will be presented to the ABA House of Delegates at the ABA Annual Meeting in August 2018.  Proposed Resolution 101 makes some good changes in streamlining the Model Rules by removing Rules 7.4 and 7.5 from the black letter law and defining and tightening up the solicitation rule.  However, the proposed Resolution fails lawyers and the public by keeping intact the language in Model Rule 7.2 allowing lawyers to pay the charges of not-for-profit organizations for advertising and referrals but failing to address the ethics of lawyers paying for advertising with and accepting referrals from for-profit referral or matching services, such as recently discontinued Avvo Legal Services.
  • In contrast, the Illinois Attorney Registration and Disciplinary Commission on May 30, 2018 issued a comprehensive Client Lawyer Matching Services study (“the Study”). The Study cites research documenting the access to justice challenges in Illinois and across the nation.  It also cites statistics about under and unemployed lawyers and the ABA Commission on the Future of legal Services Report calling on courts to examine the possibility of adopting rules and procedures for “judicially-authorized-and-regulated legal service providers.”  The Study includes a framework to regulate entities that would connect lawyers and clients while preserving lawyer independence and other core values of the profession. Such regulation would acknowledge that online matching services have demonstrated capacity to connect consumers with affordable attorneys and would eliminate ambiguity about whether a lawyer could ethically participate.  Proposed amendments to Rules of Professional Conduct 5.4, 6.3, 7.2 and others are included.  Comments are being welcomed at iardc.org until at least August 31, 2018.
  • In addition, the Association for Professional Responsibility Lawyers, the same group that recommended amendments to the advertising rules, has just put together a “Future of Lawyering” work group. The focus of the group is to look at the Series 5 Model Rules of Professional Conduct, including the proscription against fee-sharing in Model Rule 5.4. Rule 5.4, adopted in the vast majority of jurisdictions, prohibits lawyers from going into business or sharing profits with those who don’t have a J.D. The Rule has been cited by many, considering the advances in technology and globalization, as a barrier to innovation and to providing quality and efficient client service.
  • The State Bar of California, based on the Legal Market Landscape Report prepared by Prof. Bill Henderson of Indiana Maurer School of Law, has formed a Task Force to explore the possibility of allowing non-lawyer ownership of legal services firms. This would be a major regulatory development and I am not holding my breath for this to happen soon. But we all know that current regulations mandating that only lawyers own law firms and forbidding them from sharing fees with those who are not J.D.s hinder their ability to tap into the expertise of professionals with different and helpful skill sets to improve efficiency and access to justice.  And providing access to justice—and legal services—is why we are in this business.
  • A different example has been the grassroots growth of legal professionals seeking reform. As ABA TECHSHOW, highlighting the intersection of lawyers, legal professionals, and technology, gains in popularity, people are talking about bringing the skills of those without a J.D. to bear on the access to legal services gap.  In the run up to ABA TECHSHOW in March 2018, several lawyers and professionals who operate in this space engaged on a “Twitter rant” about the need for innovation and for easing professional conduct rules (such as Rule 5.4) that may be standing in the way of such innovation. At the helm of this grassroots debate emerged Patrick Palace, former Washington State Bar President, who moderated a “summit” of interested people on this topic at TECHSHOW.  Patrick called on his state supreme court justice Barbara Madsen to speak to the participants by phone.  Many who were at or heard about the summit urged Patrick to continue the dialogue, so Patrick convened another summit in conjunction with Avvo’s Lawyernomics conference in May.  He intends to hold another summit in conjunction with the Clio conference in October.  The ultimate goal is to create a working group that will draft amended Model Rules of Professional Conduct.

Conclusion

As the legal landscape evolves, the interest in attorney qualification, admission to the bar, and regulation is growing. The consensus on standards around admission to practice law should lead to more uniformity in attorney regulation generally. This would be good for lawyers, those adjacent to lawyers who are delivering legal information and providing referrals, and those we serve–potential customers and clients. Get involved in this dialogue—in person, by letter or email, or in social media. This profession is at a crossroads. We have a unique opportunity to reshape regulation to better serve our customers and society. It just may lead to having a more rewarding career in the process.

Share this:

Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

Leave a Reply

Your email address will not be published. Required fields are marked *