The Bar in Brief > Reflections on the Bar Exam: The Only Indicator of Competence?

COLUMN > A Note From the WSBA Executive Director

BY TERRA NEVITT

Last month I served as the presiding officer for the Washington State Bar Exam, held (for the first time) in Yakima. Examinees filled the hotels and restaurants surrounding the conference center where the exam was being held and the anxious vibe was even more noticeable to me than the 100-plus-degree temperatures. As I greeted one examinee in the elevator, I told him that I still remembered when I took the bar in both Washington, D.C., and at the Meydenbauer Center in Bellevue. He responded with what I perceived to be sarcasm that he was glad to hear that he would still remember this experience for years to come.

Putting on the bar exam—in the midst of a pandemic no less—is a huge undertaking. It takes months of preparation, the full-time energy of more than 20 staff during the week of the exam, and the support of approximately 40 proctors. It also takes a really big room! Last month we welcomed over 600 applicants to the Yakima Convention Center. As I observed the exam over the course of two days, I often felt overwhelmed with empathy for the folks in the room; sitting for an exam that will impact their ability to begin their legal careers in Washington and—for some—to pay back their law school loans.

Washington is one of 41 jurisdictions that administers the Uniform Bar Exam (UBE) created by the National Conference of Bar Examiners (NCBE). NCBE describes the UBE as being “designed to test knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law.”¹ The WSBA supports the passing of a bar exam prior to licensure as a way to ensure a competent, ethical, and diverse legal profession.² NCBE is currently developing its NextGen bar exam. This project began in 2018 with the creation of a Testing Task Force to engage in a three-year study to identify the foundational knowledge and skills that should be assessed as part of the bar exam. In January 2021, the task force’s recommendations³ were approved by the NCBE Board of Trustees. This new exam is still a few years out, but ultimately it will focus on eight foundational concepts and principles (civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, and real property) and seven foundational skills (legal research, legal writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and management). Overall, the test is said to focus less on memorization and more on legal skills.⁴ The NextGen exam may come with other changes as well, including the possibility of tests being administered at computer testing centers. NCBE also continues to work to eliminate bias in developing the bar exam. All of this is promising in terms of having a fair exam that serves our goal of protecting the public.

But what about the applicants who couldn’t sit for the exam because they tested positive for COVID-19? What about the people whose laptops fail in the middle of the exam? What about the competent, hardworking folks who simply struggle to demonstrate their knowledge through a standardized test?

The bar exam seems to evoke strong feelings for many of us. As I wrote in my June 2021 column, when the Washington Supreme Court granted diploma privilege for the summer 2020 exam in recognition of a global pandemic and national civil unrest, the reaction from the legal community was intense. Many worried that we couldn’t safeguard the public without some sort of competency assessment, while others applauded the decision and questioned whether there is any proof that the bar exam is a reliable indicator of competency. Attorney Jordan Couch, now a member of the WSBA Board of Governors, wrote in 2020 that there is little to no empirical evidence linking bar-exam passage with an individual’s ability to practice law and, worse, “there is substantial data and historical precedent to indicate that the purpose and effect of the bar exam is to prevent people of color, women, and the non-wealthy from entering our profession.”⁵

This impassioned conversation has far outlasted diploma privilege, and it ultimately led the Washington Supreme Court to form the Bar Licensure Task Force⁶ to do a much deeper analysis. This process too is supported by the WSBA. In its “Resolution in Support of a Bar Exam to Ensure a Competent, Ethical and Diverse Legal Profession,” the Board of Governors voiced support for the Bar Licensure Task Force’s work to “examine current and past bar examination methods, passage rates, and alternative licensure methods, assess disproportionate impacts on examinees of color and first generation examinees, consider the need for alternatives to the current bar exam, and analyze those potential alternatives.”⁷ In that resolution, the Board further articulated its support for a bar exam and its disapproval of diploma privilege as an alternative to the bar exam. It also voiced support for review and potential changes to the bar exam to “improve the bar exam as a tool to ensure the competent and ethical practice of law and to ensure there is no discriminatory effect on examinees of color and first- generation examinees.”⁸

What I appreciate about the resolution is the acknowledgement that there may not be one right way to gauge the competency of every bar applicant. There are alternatives out there to examine. For example, there is a skills-course/supervised-practice pathway in Canada⁹ and a performance-based pathway in New Hampshire.¹⁰

Our neighbor to the south, Oregon, is a few years ahead of us on the journey toward alternative exam pathways. The Oregon Supreme Court has approved in concept two additional routes in addition to the traditional bar exam—experience or supervision, in essence.¹¹ The former involves completing an approved, standard curriculum in law school (based on core competencies necessary to provide effective and responsible legal services) with a capstone project/portfolio assessed by the Oregon State Bar Board of Bar Examiners; the latter would involve an applicant to apprentice 1,000 to 1,500 hours with a qualified Oregon-licensed attorney doing a series of qualified legal tasks.

As I have followed closely the work being done in Oregon, I have been impressed by the dual focus on consumer protection and equity in admissions. More diverse pathways to licensure means a more diverse legal community, which mean more people able to find legal services to suit their needs. In a recent CLE, the former chair of Oregon’s Alternatives to the Bar Exam Task Force, Joanna Perini-Abbott, noted that no pathway to licensure is perfect or free from disparate impact, which is why the Oregon task force found it critically important from an equity lens to provide more than one pathway and to let aspiring lawyers decide what is right for them.

Please stay tuned, as I am confident there will be ample opportunities to learn more and weigh in as the court considers how to move forward. And to all those that took the July exam, I’m rooting for your success!