States Rethink Measure of Lawyers as Deadline for New Exam Nears

They haven’t passed the bar, but they’ve won bench trials and appellate rulings.

They’ve earned the trust of clients on matters as personal as child custody, guardianship, and eviction defense. Their numbers will grow thanks to a move this month by the California Supreme Court.

But to the California State Bar, those provisionally licensed lawyers aren’t full attorneys. Their ability to practice, granted in 2020, will evaporate if they don’t pass the bar exam by the time the program expires in 2027.

That, and the 2028 deadline for jurisdictions to decide whether to adopt the National Conference of Bar Examiners’ (NCBE) NextGen test, is raising the bigger question of whether prospective lawyers’ abilities should be measured by ways other than the bar exam. At least five states have non-exam licensing and at least six others are considering it. The push began before the Covid-19 pandemic, then surged when people couldn’t take the test.

“Just because we’ve always done something this way doesn’t mean it’s the only way, or that it’s the right way,” said New Mexico Supreme Court Chief Justice C. Shannon Bacon, vice chair of a committee studying admissions reform with the National Center for State Courts.

Lawyers pursuing new non-exam alternatives are filling gaps in rural areas and public interest law in places like Oregon and Arizona, say advocates for alternative licensing, who point to wide disparities in bar exam pass rates along race and class lines. Data from the first two years of California’s experiment show that provisional lawyers faced fewer complaints than other lawyers in their first two years of practice.

These alternatives face resistance among Big Law firms and some judges and lawmakers, such as California state Sen. Tom Umberg (D-Santa Ana.). As chairman of the senate Judiciary Committee, he opposes alternative licensing, which could require a change in state law.

He agrees with Supreme Court judges in his state who have expressed skepticism that non-testing measurements are feasible. The State Bar, he said, has not “come up with a way to ensure that portfolio admission is not problematic in terms of the security, the authenticity, that kind of thing.”

Public Interest Law

A provisionally licensed lawyer, Jessica Juarez, helped Legal Assistance to the Elderly address skyrocketing demand for services after San Francisco established a tenant right to counsel in eviction cases, said Laura Chiera, managing attorney and executive director.

Juarez took on a caseload of seniors--the largest demographic entering homelessness in the state, Chiera said. She recently won a bench trial and an appeal, and community members and social workers know to call Juarez for legal support, Chiera said. At this point, Juarez has mid-range experience for the firm.

“She’s just an excellent oral advocate,” Chiera said. “She’s great in court.”

If her license expires before she passes the bar, “we would lose an experienced attorney, which is not possible to replace, honestly,” Chiera said. “We would have to hire someone right out of law school and then train them up again, and then have two years, three years of experience.”

Several provisionally licensed lawyers interviewed by Bloomberg Law said they’re worried their careers and families will suffer if the program elapses before they pass the test. All of them declined to be named in an article, citing concerns that media involvement would adversely impact their application to the bar.

Around 30% of participants in the University of New Hampshire law school’s practice-based exam alternative work in the public sector, according to program director Courtney Brooks. In California, provisionally licensed lawyers are more than eight times as likely to work in legal aid, compared to the bar statewide, according to Claire Solot, one of the founders of the Legal Services Funders Network.

“The people who tend to struggle with the bar exam are the same people that actually want to go into ‘people law,’” Solot said.

Employer Reception

Arizona, citing “legal deserts,” in 2024 started allowing bar takers within 10 points of passing to be licensed after practicing under supervision for two years in rural or public interest law.

South Dakota this fall will allow nine law school students to practice under supervision with public law firms, submitting a portfolio of work in lieu of a standardized test. State’s attorney and public defender offices in the biggest South Dakota counties have agreed to take on applicants. They’ll need to work in public service full-time for two more years to stay admitted.

“Ten years from now, an interesting question will be, how far are we willing to expand?” University of South Dakota Law School Dean Neil Fulton said.

After Oregon bar applicants were granted licenses after graduating from law school at the start of Covid-19, Willamette University College of Law saw its highest employment rate in about a decade, according to then-dean Brian Gallini.

“The benefit is that they were able to work immediately,” said Gallini, now dean at Quinnipiac University School of Law. He added that employers told him, “‘We didn’t have to wait to see if they had passed, and in the period that they otherwise would have studied for the bar exam, we could really focus on training them, for our practice, for our approach, for our culture.’”

When Oregon started offering an apprenticeship alternative to the bar exam in 2024, it received interest from some of Portland’s biggest law firms and corporate law departments, in addition to public service organizations.

Mai Nako, an attorney with Allstate Insurance, said she was skeptical until she started supervising a provisionally licensed applicant.

“After seeing the amount of work and commitment and dedication you need to complete all the requirements of the program, I was a little bit more reassured that it was a program that would bring about attorneys that would be fit to practice in the state,” Nako said. “It’s not an easy program, by any means.”

The University of New Hampshire’s Daniel Webster Scholar Honors Program has been around since 2005, building two-year programs for cohorts of 24 students around casework for a hypothetical client. A 2015 study found its students outperformed lawyers in their first two years of practice on standardized client interviews.

The students are appealing hires because they can handle a caseload right away and have spent two years learning the rhythm of the work, Brooks said.

“They have to make judgments every day,” said Brooks, who consulted with Oregon and South Dakota to help develop their programs. “They’re developing that sense in law school that often you don’t develop until after you’ve been practicing a couple of years.”

Pushback

Ohio State University law professor Deborah Merritt led a study, published in 2020, that set out to define “lawyer competence” and recommend ways to test it. Based on dozens of focus group interviews with new lawyers and their supervisors, it found new lawyers need 12 basic skills, including an understanding of legal processes; the ability to interact effectively with clients; and the ability to responsibly manage a law-related workload.

Multiple-choice tests, it said, do a poor job of measuring those skills.

It recommended that lawyer licensing assessments rely on multiple choice questions “sparingly, if at all,” rework written components, and require candidates to complete supervised legal work.

Despite the bar exam existing for more than a century, “there has never been an agreed-upon, evidence-based definition of minimum competence,” the study said. “Absent such a definition, it is impossible to know whether the bar exam is a valid measure of the minimum competence needed to practice law or an artificial barrier to entry.”

“If we’re serious about testing competence before we license people, we really need something beyond the current written exam, which has too much memorization, which lawyers don’t need, and too much pressure in terms of speed to answer quickly which again, lawyers don’t need,” Merritt said in an interview.

Advocates for alternative licensing point to wide disparities in bar exam pass rates along race and class lines. Just 66% of Black law graduates passed the bar exam on their first try in 2020, compared with 88% of White candidates. Studies show candidates who can afford expensive prep courses and study full-time without caretaking responsibilities are more likely to pass.

However, opponents say that the components of alternative licensing are also unreliable, and that standardized testing is essential for licensing to be transferable between states.

California Supreme Court justices in 2024 rejected a pilot program that would’ve allowed provisionally licensed lawyers to submit work sample portfolios in lieu of a bar exam. They said supervisors may not be willing to tell graders an applicant incompetently represented clients, because it could implicate them ethically.

Bar associations also lodged letters against the proposal. Attorney Derek Ishikawa, who signed such a letter in 2022 when he was president of the Asian Pacific American Bar Association of Los Angeles County, said he’s worried about easing standards that are currently consistent across the state.

“What that exam represents, maybe we have a discussion about that, but I don’t see apprenticeship replacing the need for a standardized, comprehensive exam,” Ishikawa said, emphasizing he was speaking in his personal capacity and not as a past president of the group.

Sarah Morris, a legal recruiter in Macrae’s San Francisco office, said it’s “incredibly rare” for someone to be hired by a Big Law firm without passing the bar exam. The states with alternative pathways “are not major legal markets, where you see a lot of AmLaw 100 firms,” she said. “There’s some in Washington and Oregon, but those are tiny legal markets in comparison to New York, California.”

‘Cognitive Dissonance’

The NCBE, which coordinates lawyer licensing exams nationwide, says it has spent around eight years preparing to launch a new bar exam meant to focus more on legal skills than memorization, President Judy Gunderson said. It will start rolling out in 2026.

Almost every jurisdiction that’s opted to provide an alternative pathway has also said it’ll use the NextGen exam, Gunderson said.

“The bar exam, as it’s currently constructed requires a graduate to cram, for a period of months, information to take the test that they will never use in practice,” said Bacon, the New Mexico judge. “And so, ‘What are we measuring in terms of the ability to actually go practice law?’ is a real question. The NCBE is working really hard to address that cognitive dissonance.”

Notable standouts that haven’t opted in are California and Nevada.

California developed its own bar exam with an option to test remotely, but it crashed widely on test day, spurring lawsuits and an order from the state Supreme Court to return to the NCBE’s multiple choice questions in July. California Bar Executive Director Leah Wilson announced she’ll retire, and the Supreme Court on June 11 agreed to extend the PLL program through 2027—this time extending invitations to first-time February test takers—after the testing failure.

Nevada will require applicants to complete a written performance test, a period of supervised practice, and a shorter, 100-question multiple choice exam that will be offered four times per year. Applicants will be able to start taking the multiple choice section during law school.

Merritt, the Ohio State professor, said Nevada’s new format is “going partway there and making a very important step.”

Testing every three months, rather than every six, is better to reinforce knowledge, and “if you break up the exam like that and offer it more often, it means that when there’s a problem in an administration, it’s a problem rather than a catastrophe,” she said.

In five to 10 years, Bacon said she expects many states will adopt alternative pathways that co-exist with the bar exam, rather than replacing it.

“I think it’s going to be side-by-side, and some people do both,” Bacon said.