The license to practice law in New York has long been the international gold standard. Bar admission was predicated upon passage of a rigorous test on legal principles relevant to law practice in New York. With the adoption of the Uniform Bar Exam (UBE) in 2016, however, New York admission came based on generic principles of the law of “nowhere.” New York law was relegated to an online, open-book “test” on which 60 was a passing grade. No meaningful knowledge of New York law was required.
The bar exam exists to protect the public by ensuring that those admitted to practice law in New York meet certain basic minimum standards of competency. The New York State Bar Association (NYSBA) established a blue-ribbon Task Force in April 2019 on the New York Bar Exam (the Task Force) to review the impact of the adoption of the UBE on applicants, newly admitted attorneys, members of the bar, employers, the courts, diversity in the profession, and the public.
Members of the Task Force included past and present bar leaders, legal scholars and bar examination experts. It held public hearings, heard from the New York Board of Law Examiners, academic leaders, law students, bar leaders, community activists, and others and issued three reports over the past two years.
The Uniform Bar Tests the ‘Law of Nowhere’
The Task Force found that the UBE, with its reliance on testing the “law of nowhere,” has led to the training of lawyers on matters that bear little relation to the legal issues that they will encounter in New York practice.
Additionally, the Task Force found that the grading and scoring practices are questionable and no independent analysis has been conducted into whether the UBE accurately measures what it purports to assess.
The National Conference of Bar Examiners (NCBE) concedes that the UBE has perpetuated a disparate impact to women and, to some extent, minorities. It also acknowledges that someone taking the UBE in two states and giving the same answers in both could end up with two different scores. The NCBE itself intends to abandon the UBE in four or five years.
The Task Force also found that the New York Law Examination, which is required for admission in New York along with the Uniform Bar Exam, is widely held in disrepute (p.6). The New York part of the examination was designed to expose students to important principles of New York law.
The Task Force indicated that there are reports of cheating, which is compounded by the fact that applicants attest in affirmations that they did not cheat, with no effective means of either policing the administration of the test or confirming the accuracy of the affirmations.
Public Protection Requires Lawyers to Know N.Y. Laws
The Task Force recommends that applicants for admission to practice law in New York be required to demonstrate basic knowledge of New York law.
In addition, a written test may not be the only way to measure competency to practice in New York, therefore, the Task Force urges consideration of two alternative pathways to admission. Under one, students who graduate from law schools accredited by the American Bar Association (the ABA) with enough credits in courses with New York law content, earned with sufficient grades, would not need to take the bar.
Under the other, students who spend significant time during their second and third years of law school in supervised law practice in New York, and whose activities are monitored and graded by law school faculty, could gain admission without examination.
Teaching to the Test
With the NCBE phasing out the UBE, New York has been given what may be its last chance to restore luster to its law license by requiring lawyers who practice here to demonstrate a working knowledge of New York law. The adoption of the UBE rendered applicants less, not more, equipped to meet the challenges of practicing law in New York.
When New York law was dropped from the test, law students stopped taking, and law schools stopped offering, courses in New York law. Law students are incentivized to study that which is most relevant to their most immediate objective—passing the bar exam. Law schools, whose rankings and accreditation may be dependent to a significant degree on their bar passage rate, are incentivized to teach to the bar.
The NCBE’s proposed new test, to be administered remotely, would further deemphasize major aspects of state law—family law, trusts and estates, secured transactions, and conflict of laws. The reduction in state law content is contrary to study findings that new lawyers rely heavily upon state and local law in their formative years of practice.
Yet another reason to depart from the NCBE is its intention to shift to a digital-only test. Scientific studies indicate that reader comprehension is less when reading is done on certain computer screens, as opposed to paper or some other forms. While the use of a digital examination was necessary during the pandemic as an emergency measure, it should not become the routine until the pros and cons are thoroughly considered.
New York needs to act now to develop its own test, working with the law schools to facilitate a transition to a new test that will foster the study of New York law, promote New York law within the broader legal community, and assure that attorneys admitted to practice here are competent to do so.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Hon. Alan D. Scheinkman chairs the New York State Bar Association Task Force on the New York Bar Examination. He was the presiding justice of the Appellate Division, Second judicial Department in Brooklyn, until his retirement last year. He serves as a neutral with National Arbitration and Mediation.
Michael Miller, past president of the New York State Bar Association, is a member of the Task Force on the New York Bar Examination. His practice is focused on estate planning, and he is also a past president of the New York County Lawyers Association.