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N.Y. Should Withdraw From Uniform Bar Exam, State Bar Group Says

June 14, 2021, 8:41 PM

A New York State Bar Association task force says the state should withdraw from the Uniform Bar Exam, and instead develop its own bar admissions test that focuses more directly on state-specific laws.

The State Bar’s House of Delegates on Saturday “overwhelmingly approved” the Task Force of the New York Bar Exam’s recommendations. A total of 94% of members voted in favor of the changes and 3% opposed, with the rest abstaining, said former Presiding Justice of the Appellate Division, Second Department, Alan Scheinkman, who chaired the panel.

The current state-specific New York Law Exam, now taken by examinees in addition to the two-day Uniform Bar Exam, is too easy: Just 30 out of 50 multiple choice questions need to be answered correctly to pass the open book test. It’s also lent itself to cheating by groups of students taking the exam in the same room and comparing notes, he said.

“This has long been a source of great controversy,” said Scheinkman. “We want to have a rigorous New York Exam.”

he New York law-specific portion of the exam should test “a basic working knowledge of key New York legal principles and concepts,"the task force said in its recommendations.

The task force was prodded by a series of recommendations for a new bar exam made earlier this year by the National Conference of Bar Examiners, which puts together UBE exam materials. The New York group is urging the state’s highest court, the N.Y. Court of Appeals, to ratify its own changes..

The NCBE’s revised test will do away with the separate Uniform Bar Exam components such as the Multistate Bar Exam, the Multistate Performance Test, and the Multistate Essay Exam, replacing them with a format that asks test takers to use legal scenarios and fact patterns to provide answers through multiple choice and short written answers.

The new NCBE test—which will take four to five years to finalize—also mandates that future exams be conducted entirely by computer—even if they’re held in-person. The NCBE will effectively require that its tests be taken on a computer when the new version is released—it doesn’t plan to distribute paper copies.

The New York task force said the mandate could present the state with significant logistical hurdles, and could also harm low-income exam takers who don’t own up-to-date computers.

Forty U.S. jurisdictions have adopted the Uniform Bar Exam, according to the NCBE, including 38 states, the District of Columbia, and the U.S. Virgin Islands.

Pandemic Reforms

The NCBE has defended the UBE as offering “clear benefits” to bar applicants, would-be clients, employers, and law schools in part through increased consistency in the subjects tested on the bar exam across jurisdictions.

“NCBE stands by the efficacy of the current Uniform Bar Examination and continues in its mission to support New York and all U.S. jurisdictions in building a competent, ethical, and diverse legal profession,” spokeswoman Valerie Hickman said Monday in a statement on behalf of the group. “NCBE is committed to working with the New York State Court of Appeals and the New York Board of Law Examiners on any issue related to the UBE.”

The announcement from the New York Bar will need to be ratified by the state’s Court of Appeals before it takes effect, said Scheinkman.ven if that happens relatively quickly, he said a new version of the New York bar exam likely wouldn’t replace the UBE for several years.

The changes offered both by New York State Bar and the NCBE have come at a time of unprecedented upheaval in the way state bar exams are administered. The pandemic spurred many states to hold their tests remotely and online, for the first time, including the largest bars in the country in New York and California.

On June 1, the NCBE announced that bar exam materials for the February 2022 test will be made available to jurisdictions for in-person testing only, unless public health authorities prohibit a jurisdiction from administering that exam in person.

The public health crisis also spurred other demands—made by a growing and politically sophisticated cadre of law school graduate activists and their law professor backers—that state bars think in a broader way about new pathways to licensing attorneys.

Those changes include avenues like provisional licenses through supervised practice, as well as diploma privilege, a less popular concept, so far, through which a handful of states temporarily allowed students to become licensed without passing a bar exam first.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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