Lawyers: Have Your Say on Content for the New Bar Exam

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A new bar exam is scheduled to debut in 2026 and it may look a bit different than what we’ve seen before.

The National Conference of Bar Examiners (NCBE) is asking the legal community to weigh in on the initial outlines of the exam content, which will place greater emphasis on essential lawyering skills and decrease the number of tested legal subjects. The NCBE hopes that public input will help identify any oversights in the topics and lawyering tasks slated for assessment.

Legal professionals can provide feedback at nextgenbarexam.ncbex.org/csopc-register/. The public comment period closes on Monday, April 18, 2022.

Proposed changes

The most noticeable changes to the exam are a decrease in the number of subjects tested and a proposed expansion of lawyering skills to be assessed.

Recently, the knowledge, skills, and abilities required for competent entry-level legal practice have shifted in areas like client relationship management and legal research, which have been made more efficient through technology.

For example, in March, Hawaii became the 40th state to adopt a duty of technology competency for lawyers. Illinois adopted the amendment to the competency rule in 2015, the 15th state to do so at the time.

In the proposed exam, the number of subjects tested will decrease from 12 to 8. The exam will still test on civil procedure, contract law (including Article 2 of the Uniform Commercial Code), evidence, torts, business associations (including agency), constitutional law (including proceedings before administrative agencies), criminal law and constitutional protections of accused persons, and real property.

The exam will no longer test conflict of laws, family law, trusts and estates, or secured transactions.

When it comes to lawyering skills, the NCBE proposal expands those tested beyond legal writing, issue spotting, and legal analysis to include legal research, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management.

“Stakeholders have indicated that the bar exam should test fewer subjects in order to focus on testing more lawyering skills,” NCBE President Judith Gundersen said in a press release. “The new bar exam will be administered on computers, which allows us to build more dynamic question sets and test skills beyond those included on the current exam.”

Developing a new bar exam

The proposed changes are the result of an effort to evaluate the bar exam that began in 2018. The process included listening sessions, collaborative input from committees, and a multi-year study of nearly 15,000 practicing lawyers and stakeholders to determine the knowledge and skills necessary for effective practice by newly licensed attorneys.

The NCBE’s Content Scope Committee – a group of 21 legal professionals that included legal educators, law school deans, practicing attorneys, and bar examiners – assisted the NCBE in developing test content specifications for the new bar exam.

When considering the topics to be covered, the Content Scope Committee primarily considered three factors:

  • Frequency: How often is a newly licensed lawyer likely to encounter the topic in general entry-level practice?
  • Universality: How likely is a newly licensed lawyer to encounter the topic in more specialized types of entry-level practice?
  • Risk: How likely is it that there will be serious consequences if a newly licensed lawyer does not have any knowledge of the topic when it arises?

The state of the bar exam

The bar exam has experienced significant challenges during the pandemic, spawning the hashtag #barpocalypse on social media. After jurisdictions scrambled to make accommodations to administer the exam remotely, technology problems plagued many remote examinees.

Illinois and most other states administered the bar exam in person in February, stepping up health protocols for the facilities and exam takers.

Nancy Vincent, Director of Administration for the Illinois Board of Admissions to the Bar (IBAB), commented about the February 2022 exam, “Among other things we do have a mask mandate in place for everyone and an option of proof of full vaccination or a requirement that they produce proof of a negative Covid test with certain parameters. The Board believes in person is a better method of exam administration and believes it can be done safely with precautions in place.”

Illinois had an overall pass rate of 43% in February, down from 67% for the July 2021 exam, which was administered remotely.

IBAB is planning an in-person bar exam in July 2022.

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