Gateway Evolution: Introducing the ‘NextGen Bar Exam’

The future of legal licensing and what it means for aspiring attorneys in Washington

BY NOEL BRADY

In the realm of legal education and licensure, change is a slow and tortuous process often met with resistance. Nevertheless, evolution—in, for example, the mechanisms by which future attorneys are best assessed and granted entry to the practice—is inevitable. What’s soon to evolve is the bar exam.

The Uniform Bar Exam (UBE), taken by law school graduates¹1 Individuals who complete the APR 6 Law Clerk Program can also sit for the Uniform Bar Exam in Washington state. in Washington and 40 other jurisdictions, has long served as the benchmark for legal competency. Developed by the nonprofit National Conference of Bar Examiners (NCBE), the UBE is uniformly administered and graded with scores that can be used for legal licensing in other UBE states and jurisdictions. Since the exam was introduced in 2011, it has remained largely unchanged, especially regarding format, although there have been some relatively small changes related to content and introduction of new multiple-choice questions. Today, however, after so many advancements in technology, shifting legal demands, and an ever-diversifying and changing profession, many voices have called for a more adaptable and forward-thinking bar exam. Enter what the NCBE calls its “NextGen Bar Exam”—an evolution poised to reshape the way jurisdictions assess legal competence.

Calls for Change

Twenty-first-century technologies such as artificial intelligence and blockchain have changed the way legal services are delivered. Legal issues related to the environment, data privacy, and digital currencies have taken center stage, challenging established norms and demanding a new breed of legal experts. At the same time, the demographics of those entering the legal profession have broadened, bringing fresh perspectives and highlighting the need for a more inclusive and equitable legal system.

First administered in Washington state in July 2013, the existing UBE has come under scrutiny in recent years both for its slowness in adapting to evolving demands for legal services and for its questionable ability to thoroughly assess the competency of candidates seeking to enter legal practice. Critics point out that the UBE does not adequately account for certain skills required of modern lawyers, such as technological competence, cross-cultural communication, and a deep understanding of emerging legal fields. People who have taken the UBE also question its demand for rote memorization of black-letter law when, in the real-world, attorneys research the finer points of law as needed. Finally, the UBE has been criticized for its one-size-fits-all approach that fails to account for regional variations in legal practice.

In response, the NCBE began developing a next generation uniform bar exam in January 2021, after its Board of Trustees adopted recommendations by its Testing Task Force. NCBE will launch the NextGen Bar Exam in July 2026, making it available for use by jurisdictions.

The Washington Bar Licensure Task Force, commissioned by the Washington Supreme Court, in October recommended that the court adopt the new bar exam; however, the task force told the court, work remains to adequately improve the assessment of lawyer competency and representation in Washington. It is now up to the court whether and when it chooses to do that. The court’s only deadline is February 2028, when the final UBE will be administered. Afterward, the NCBE will no longer offer the existing UBE.

“This new exam is going to be an intertwining of the skills and the doctrine, because we’re trying to make this exam much more relatable to the practice of law, much more relatable to what a lawyer is going to face in the first five years of practice,” NCBE’s Chief Strategy and Operations Officer Marilyn Wellington explained at a recent meeting of the WSBA’s Board of Governors. “Our goal is to make sure we’re providing an assessment product that allows people in their jurisdictions to really evaluate the candidates that they have for bar admission, for licensure, in a way to allow them to focus on their role in protecting the public,” she said.

If Washington adopts the NextGen Bar Exam, it will continue to be responsible for determining eligibility for taking the exam; for administering the exam in person, twice a year, in February and July; for reviewing and granting examinees’ testing-accommodation requests; and for setting the state’s own minimum passing score. Scores will continue to be portable for admission to any jurisdiction administering the exam based on that jurisdiction’s minimum passing score.

What’s Changing?

The NextGen Bar Exam is divided into three sessions of three hours each over a day and a half. The existing UBE is 12 hours long over two full days. Each session of the NextGen exam will include two integrated question sets, 40 multiple choice questions and a performance task (similar to the current Multistate Performance Test on the current exam), all asked and answered on a computer. No longer will every examinee receive paper test booklets or be asked to complete a paper scantron answer sheet. NCBE recently released samples of the integrated question sets and multiple-choice questions; they’re available on the NextGen website.²2 https://genbarexam.ncbex.org/nextgen-sample-questions/. NCBE and its partners developed the subjects and skills to be tested through a multi-year, nationwide legal practice analysis focused on the most important knowledge and skills for newly licensed lawyers—that is, lawyers in their first five years in practice. Exam questions are written by diverse teams of law professors and deans, practicing attorneys, and judges drawn from jurisdictions throughout the U.S. and are thoroughly pretested prior to administration to examinees.

According to the NCBE website, the NextGen Bar Exam will balance the skills and knowledge needed in litigation and transactional legal practice. It will reflect many of the key changes that law schools are making to their own curricula, building on the successes of clinical legal education programs, alternative dispute resolution programs, and legal writing and analysis programs. It does away with the current exam’s three separate components—the Multistate Bar Examination, the Multistate Essay Examination, and the Multistate Performance Test—in favor of an exam designed to better integrate knowledge and skills.

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SIDEBAR > Take a sneak peek at sample questions recently published by NCBE. These questions were tested by more than 2,500 law students, bar examinees, and newly licensed lawyers. Several law schools across the country also participated in the testing. www.ncbex.org.

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The new exam will cover nine foundational concepts: civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, family law, and real property. It will no longer test conflict of laws, trusts and estates, or secured transactions, because those areas of law differ by state and are covered in the separate Washington Law Component of the exam. The exam will provide greater emphasis on assessing lawyering skills, including legal writing, issue-spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, and client relationship and client management.

“Another major change is simply moving away from memorization of subject matter rules that can be looked up in practice and moving toward an exam that more realistically resembles real practice,” said WSBA’s Chief Regulatory Counsel Renata de Carvalho Garcia, who has also been involved with the Washington Supreme Court’s Bar Licensure Task Force.

“So far, the feedback from early exam takers has been generally positive,” Garcia said. “I think that people appreciate reducing the number of multiple-choice questions and the memorization component.”

The NextGen Bar Exam tests foundational knowledge that transcends practice areas, skills, and know-how about things like contracts, civil procedure, evidence, and statutory interpretation, said University of Maine Law School professor John Lee, who volunteered to help draft the new exam. The lawyering tasks are narrower in scope than on the UBE. Rather than drafting a complete brief, exam takers may have to edit part of a brief or identify errors that were made. 

Ethical considerations are at the core of the legal profession, and the NextGen Bar Exam reflects this by incorporating an ethics component that goes beyond rote memorization of rules. Candidates will engage with realistic scenarios that raise ethics issues and must make complex, real-world decisions that balance legal, moral, and practical considerations. This approach aims to produce attorneys who are not just knowledgeable but also ethically sound and capable of navigating the often-gray areas of legal practice.

“One new aspect to the NextGen exam is that as part of the integrated assessment, examinees will need to have working knowledge of some of the rules of professional conduct,” Lee said. Included will be rules such as client counseling and client management, but they’ll be tested in connection with particular lawyering tasks.

In drafting the test, Lee said he and his colleagues focused on the skills of lawyering and differentiated between knowing how to spot an issue and work with available sources on the one hand and information a new lawyer must know from memory on the other, the latter being what he considers a deeper level of knowledge.

“Examinees will have to come in with recall knowledge,” Lee said. “In order to ascertain what should be issue-spotting versus what should be recall knowledge, there are a variety of factors: first, the complexity of the topic, second, the context in which it arises, and by that we mean is this the type of issue that a lawyer would be able to think about, have time with, have a week to do research or a day to come back and give an answer, or is this an on-the-spot kind of thing … ? [B]ecause if it’s on-the-spot, that would weigh in favor of recall knowledge.”

Diversity & Inclusion Assessment

To minimize bias for or against a particular group or groups, designers of the NextGen Bar Exam avoided unfamiliar terminology and insensitive phrasing by having questions reviewed by a committee whose members brought multiple perspectives and experiences to the table. Drafters received training and guidelines specifically designed to help them avoid problematic test content.

Once the questions were drafted and sent through a review process, the exam was presented to a battery of pilot- and field-test exam takers. Pilot-test exam takers included third-year law students and recent graduates. Starting in January field-test exam takers will begin with new lawyers in their first three years of practice, said Danette McKinley, NCBE’s Director of Diversity, Fairness, and Inclusion Research. If a subset of test examinees performed significantly worse (or better) on a question than expected, that question went through further review.

“When we’re talking about fairness here, it’s our concern that the test allows the same interpretation about the assessment of competence for everyone who sat through that exam,” McKinley said. “When they get their test results, have we given them equal opportunity to show what they know and what they can do?”  

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SIDEBAR

The 3 Factors

According to the NCBE, the following three factors were considered in determining the breadth of topics to be covered within each concept and skill area in the NextGen Bar Exam:

Frequency > How often is a newly licensed lawyer likely to encounter the topic in general entry-level practice (loosely defined as solo practice or working at a full service law firm)?

Universality > How likely is a newly licensed lawyer to encounter the topic in more specialized types of entry-level practice?

Risk > How likely is it that there will be serious consequences if a newly licensed lawyer does not have any knowledge of the topic when it arises?

NOTES

1. Individuals who complete the APR 6 Law Clerk Program can also sit for the Uniform Bar Exam in Washington state.

2. https://genbarexam.ncbex.org/nextgen-sample-questions/. 

3. www.ncbex.org/about/diversity-fairness-and-inclusion. 

Note: Corrections to this article (with regard to the launch date of the UBE and the NextGen exam format) were made after publication.