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ANALYSIS: Three Ways State Bars Could Test Legal Tech Knowledge

Nov. 10, 2021, 7:54 PM

I recently queried whether state bars should formally test legal tech knowledge to mixed reviews. While some lawyers believe it is a good idea, others feel that continuing legal education (CLE) or law school classes would suffice. But opinions aside, if state bars were to actually begin formally testing legal tech knowledge, what would that look like? How would it be done?

It’s clear that the need for technology know-how in the legal industry is growing. According to Bloomberg Law’s 2020 Legal Technology Survey, almost 75% of in-house respondents stated that their legal departments expect outside counsel to increase their use of legal technology in order to be more efficient.

If this challenge is to be addressed by the bar exam, the National Conference of Bar Examiners would first need to determine what elements of legal technology to test. One straightforward way to make this determination would be to use the three main categories of legal technology defined by the Boston Consulting Group and the Bucerius Law School’s 2016 report as a guide: enabler technologies (cybersecurity, etc.), support process solutions (billing, etc.) and substantive law solutions (eDiscovery, etc.).

Essentially, to test skills in these areas, certain elements would either need to be incorporated into the existing exam, or they would need to be implemented as an entirely new test. This could be accomplished through one of three possible format changes.

Three Methods of Testing

The first method adds legal technology as a subject on the bar exam by replacing some of the Multistate Bar Exam (MBE) questions with legal technology questions. It could incorporate issues involving legal technology in the Multistate Essay Exam (MEE) or state-specific essays, or the test creators could weave legal tech into situational fact patterns on the Multistate Performance Test (MPT).

The second method blends legal tech questions into the Multistate Professional Responsibility Exam (MPRE), since, according to the American Bar Association’s (ABA) Model Rule of Professional Conduct dealing with attorney competence, lawyers should stay abreast of the benefits and risks of legal technology.

The third method maintains bar exam and MPRE status quo, and instead institutes a new Multistate Legal Technology Exam (MLTE), similar in format to the MPRE.

With technology playing an increasing role in law practice, the need to ensure the legal tech savvy of future lawyers is clear. Regardless of the formatting method, officially testing legal technology could be a very beneficial approach.

Bloomberg Law subscribers can find related content on our In Focus: Legal Technlogy and Practical Guidance: Legal Technology Glossary pages.

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