Update on Uniform Bar Examination

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By Otto Stockmeyer

A little more than a year ago, The Detroit Legal News published my article on the Uniform Bar Examination (“Will the Uniform Bar Exam Ever Come to Michigan?” on November 26, 2018). It started out:

“On October 29 the Michigan Board of Law Examiners posted the names of 451 law graduates who passed the July 2018 Michigan Bar Examination...

“Wouldn’t it have been nice for these bar passers if Michigan administered the Uniform Bar Examination? The UBE allows new lawyers who pass the exam to transfer their score when applying for admission to another jurisdiction. Thirty-five states and territories have adopted the UBE, including big-ticket states like New York, Illinois, Ohio (beginning in 2020), and—just last month—Texas.”

Since that article appeared, 592 additional law grads passed the Michigan bar exam and thus became eligible to practice law in ... well, Michigan.

Had we adopted the UBE, they could transfer their score to one or more other UBE states and practice there. That’s huge for law students who don’t have a law job lined up by graduation.

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MBE advantages

From my perspective, among the principal advantages of the UBE are these:

(1) Uniformity. Law grads would prepare for and take the same bar exam almost everywhere. "Make the pain the same."

(2) Score portability. Law grads who pass somewhere could seek employment almost anywhere.

(3) Expert drafting of essay questions. And applicants would have 30 minutes per question rather than the present 20.

(4) A performance component that tests applicants' ability to perform routine lawyer tasks.

An expanded version of The Legal News article, in the June 2019 Michigan Bar Journal, identified additional benefits of the UBE. Requiring graduates to be practice-ready would be a boon to employers and reassuring to the consumers of legal services. And knowing these skills will be “on the exam” would spur law students to take increased skills training seriously.
 While the article was under consideration, the bar journal staff asked the Board of Law Examiners for a “counter-point” article or other form of response. The Board declined.

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Progress elsewhere

Illinois implemented the UBE for its July 2019 exam. Ohio will begin administering the UBE this coming July. In December a study commission appointed by the Indiana Supreme Court recommended, with the unanimous support of its Board of Law Examiners, that the UBE be adopted there. At that point Michigan will be the only Great Lakes state holdout except for Wisconsin (a diploma-privilege state) and Pennsylvania (which barely touches Lake Erie).

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Collateral benefits

The UBE would be of particular advantage to women and minority law grads. Women are significantly more likely to move out of state in their first years of practice than men, putting them at a greater disadvantage if their bar scores are not transferrable.

Duplicative, expensive bar exams are a bottleneck in the pipeline for minorities seeking access to the profession. Few states break out passing scores by racial groupings, but one law school found that the passing scores of their African American and Hispanic graduates increased five percentage-points after their state adopted the UBE. It is no wonder that in a nationwide poll of 2016 law grads, more than 90 percent were in favor of the UBE.

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Endorsements

The UBE is sponsored by the National Conference of Bar Examiners. The Conference of Chief Justices, the ABA House of Delegates, and the ABA Law Student Division have endorsed it. It obviously enjoys the support of the highest courts in the 36 states and territories that use it, or have plans to.

Here in Michigan all stakeholders—the courts, the bar, our law schools, and particularly our law students—should welcome a uniform, consistent, and transferrable test of minimum competency to practice law.

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A look at the 2019 Multistate Performance Test

The most innovative component of the Uniform Bar Exam is the Multistate Performance Test. The MPT is a half-day test consisting of two 90-minute, task-related questions. It is designed to test the ability to use lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish, within time constraints, regardless of the area of law involved.

The MPT has been available since 1997. It is currently used in 48 jurisdictions, including the District of Columbia and four U.S. territories. It represents 20 percent of the overall UBE score.

Here is a quick look at the four MPT questions used in 2019:

In February, the first question involved administrative law and civil procedure. A child-care facility faced revocation of its license in seven days. Provided with various documents and authorities, the examinee’s task was to draft a brief in support of a motion for a preliminary injunction to halt the revocation until a trial on the merits.

The second question involved a negligence claim by a motorist against a “Good Samaritan” whose intervention led to the client’s injury when hit by another motorist. Armed with a transcript of the client’s interview, a memo from the firm’s private investigator, and excerpts from the Restatement of Torts, the task was to prepare an objective memorandum analyzing the viability of the client’s claim.

In July, the first question was to predict the likelihood of success in vacating a default judgment entered against a foreign manufacturer arising from an earlier arbitration. The “file” included an e-mail from the client, the court order entering the default judgment, applicable court rules, and cases from two neighboring jurisdictions.

The second question required examinees to evaluate the advantages and disadvantages of two estate-planning approaches (a life estate or a contract to make a will) that the client could take regarding his main asset, a house. Provided were: the client’s interview transcript, an appraisal of the house, excerpts from a treatise on life estates and two cases. 

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Otto Stockmeyer earned emeritus status in 2015 after a 37-year teaching career at Western Michigan University-Cooley Law School. He is a past member of the State Bar of Michigan’s Representative Assembly and Board of Commissioners, and the ABA House of Delegates. His views are his own and do not necessarily reflect those of WMU-Cooley Law School.


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