New Pathways to Lawyer Licensure

Washington State Supreme Court orders launch change

Staff illustration / source images: © Getty/frender; © Getty/Eoneren

CONTINUING COVERAGE

ask us questions > Send your questions to alternativepathways@wsba.org. Letters to the editor in response to Bar News coverage may be sent to wabarnews@wsba.org.

BACKGROUND

On Nov. 20, 2020, the Washington Supreme Court issued an order to create the Washington Bar Licensure Task Force (“Task Force”) “to assess the efficacy of the Washington state bar exam and related requirements for licensing competent lawyers.” The Task Force was directed 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.”

See the November 2023 issue of Washington State Bar News for full coverage of the work of the Task Force and its recommendations, including a Q&A with the Task Force co-chairs and a Q&A with the deans of Washington’s three law schools, plus an in-depth look at what the National Conference of Bar Examiners (NCBE) calls its NextGen Bar Exam. 

Via Orders entered on March 15, the Washington Supreme Court took the following actions pursuant to its inherent power over admission to practice law:

  • Adopted the NextGen Bar Exam, with first administration to be in July 2026.
  • Lowered the minimum passing score from 270 to 266 for lawyer bar examinations administered in Washington state retroactively from July 2020 through the implementation of the NextGen Bar Exam in July 2026. 
  • Adopted in concept Task Force recommendations to implement a graduate apprenticeship, a law school experiential pathway, and an APR 6 apprenticeship as additional pathways to attorney licensure; alternative assessments and interventions throughout an attorney’s career; and a change to the required years of practice for admission by motion for out-of-state licensed attorneys. See Sidebar No. 1 below.

SIDEBAR No. 1

Changes to Attorney Pathways to Licensure Approved In Concept by Washington Supreme Court—Now In Implementation Phase*

  • Graduate Apprenticeship: Drawing on the tutoring and licensing requirements already codified in APR 6 (Law Clerk Program) and APR 9 (Licensed Legal Intern Program), law school graduates who successfully complete a six-month program consisting of practice under the guidance and supervision of a qualified attorney plus completion of standardized APR 6 coursework would be able to waive out of the bar exam.
  • Law School Experiential Pathway: Law students who wish to graduate practice-ready and waive out of the bar exam would be required to complete 12 qualifying skills credits and 500 hours of work as an APR 9 licensed legal intern or equivalent providing legal services to actual clients. As part of their bar application, law students would be required to submit a portfolio representing work done during their 500 hours.
  • Admission and Practice Rule (APR) 6 Apprenticeship: The APR 6 Law Clerk Program already accomplishes the goal of training individuals in the experiential side of the practice of law; APR 6 clerks are also required to complete and be assessed on coursework. In order to waive out of the bar exam, they would have to complete additional standardized education materials and benchmarks under the guidance and supervision of their tutors. They would also be required to satisfy the same 500-hour requirement of providing legal services to actual clients as an APR 9 intern required for the Law School Experiential Pathway.
  • Alternative Assessments and Interventions: With a focus on protection of the public, the Task Force recommended that the WSBA, with support from the Washington Supreme Court, begin investigating and implementing assessments and data collection that can help ensure that lawyers remain competent throughout their careers. The Law School Admission Council has previously studied what traits, qualities, and skills make an effective lawyer and has identified a number of assessments that were highly effective in predicting who would be a good lawyer. Data from these assessments, together with data on lawyer discipline and recidivism in lawyer discipline, will identify which programs are most effective in ensuring lawyer competence and strengthening the legal profession.
  • Reciprocity: The Task Force recommended reducing the required years of practice for out-of-state licensed attorneys to be eligible for admission by motion in Washington to one year. Proposed amendments implementing this recommendation have been submitted to the Washington Supreme Court.
  • *Watch for continuing coverage in future issues of Bar News.

CURRENT STATUS: IMPLEMENTATION PHASE

The changes to attorney pathways to licensure recommended by the Task Force must still be implemented. The Washington Supreme Court has directed the WSBA to convene a Pathways to Licensure Steering Committee to propose rule changes and identify next steps necessary to implement the recommendations. The Steering Committee will be composed of 18 people drawn from many of the entities and communities impacted by new pathways to lawyer licensing in Washington state. The role of the Steering Committee is to provide high-level direction and decision-making for the implementation process. See www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/pathways-to-licensure-steering-committee. 

CONTINUING COVERAGE IN BAR NEWS

Bar News will provide continuing coverage of the ongoing work to implement the changes to attorney pathways to licensure, with a focus on questions received from WSBA members. 

This issue of Bar News will focus on changes to the attorney bar exam. Questions answered in this issue were submitted during the free May 14 CLE, “Alternative Pathways to Licensure,” presented by members of the Task Force. The recording of that CLE is available for free at www.mywsba.org/PersonifyEbusiness/CLEStore/Alternative-Pathways-to-Licensure/ProductDetail/24784026. Or go to www.wsbacle.org, select On-Demand Seminars, and search “pathways.”

Future issues of Bar News will cover in more depth the new pathways to licensure, in addition to the bar exam, recommended by the Task Force and adopted in concept by the Washington Supreme Court. See Sidebar No. 1 above.

Here’s one member’s question submitted during the May 14 CLE that relates broadly to the entirety of the court’s March 15 Orders:

Q. Should WSBA members have been allowed to vote on this shift in policy?

A. The Washington Supreme Court Orders of March 15, were issued “pursuant to the Court’s inherent power over admission to practice law[.]” See GR 12 (“The Washington Supreme Court has inherent and plenary authority to regulate the practice of law in Washington.”).

WSBA members did, however, have an opportunity to comment on the Task Force’s recommendations. The court invited comments, which could be submitted by emailing an address that the WSBA monitored. The comment period began on Oct. 11, 2023, and concluded on Jan. 11, 2024. Seventy-three comments were received from sources including attorneys practicing in Washington, current or past APR 6 law clerks, law students and recent graduates, legal aid and volunteer legal services representatives, and law professors. The WSBA made the comments available to the Task Force and provided a brief summary of the comments for the Task Force’s review. In addition, the WSBA Board of Governors held an interactive listening session on January 8 to hear directly from members. The Board gathered that feedback and used it to make their own recommendation to the Supreme Court to support the Task Force’s recommendations. On Feb. 28, 2024, the Task Force submitted A Proposal for the Future of WA State Bar Admissions Updated Following Public Comment.

PART 1

THE BAR EXAM: PAST, PRESENT & FUTURE

Q. Is Washington doing away with the bar exam?

A. No. The Task Force’s Proposal recommended that the court continue to offer a bar exam as a pathway (and likely the primary pathway) to attorney licensure. The WSBA expects that many applicants for licensure will continue to take the bar exam for a variety of reasons, including the portability of the bar exam score for people who may want to move between states.

THE PAST 

Some sort of exam has been part of bar licensure since Washington’s inception: WSBA records indicate that examination for possession of the “requisite qualifications and learning” has been on the books since Washington’s territorial laws of 1863. How the “requisite qualifications and learning” have been tested, however, has continued to evolve. See “History of the Bar Exam in Washington” sidebar at right. The Task Force studied the history of licensing attorneys in Washington and nationally and noted that “[w]ritten examinations were historically offered alongside other paths to licensure—including diploma privilege, oral examination, and apprenticeships—to ensure diverse routes to practice.” Task Force Report at 5.

Looking at the history of the bar exam more broadly across the nation, the Task Force observed: “The creation of the bar exam coincided with the first Civil Rights Act in 1875. After three Black lawyers were unintentionally granted membership in the ABA in 1914, their membership was revoked and a meeting was convened to discuss keeping the profession ‘pure.’ A mandatory bar exam was part of the proposed solution.” Task Force Report at 3 n.2. Citing numerous studies and collected data, the Task Force concluded:

The best available data indicates that the bar exam disproportionately and unnecessarily blocks historically marginalized groups from entering the practice of law. In addition to the racism and classism written into the test itself the time and financial costs of the test reinforce historical inequities in our profession. 

Task Force Report at 3-4 (footnotes omitted).

In addition to issues of equity and disparate impact, the Task Force cited other studies in stating that “data indicates that the bar exam is at best minimally effective for ensuring competent lawyers.” Task Force Report at 4 (footnote omitted).

THE PRESENT

In 2013, the Washington Supreme Court adopted the Uniform Bar Exam (UBE) developed by the National Conference of Bar Examiners (NCBE); the UBE will continue to be administered in Washington until July 2026. The UBE represented a significant change from the prior WSBA-developed, all-essay bar exam. 

The UBE is currently comprised of three components: (i) the Multistate Essay Exam, consisting of six individual essay questions; (ii) the Multistate Performance Test, consisting of two longer, practical questions (draft a legal memo, draft a client letter, etc.); and (iii) the Multistate Bar Exam, consisting of 200 multiple-choice questions. The UBE is administered over two days. See examples of bar exam questions in Sidebar No. 2 below.

Criticisms of the UBE have included that “it bears little resemblance to the actual practice,” “encourages rote memorization and focuses on doctrinal questions,” and “tends to simply restate the same results already provided by law school grades.” Task Force Report at 4 (footnote omitted); Memo to the Chief Justice re Adoption of NextGen Bar Exam (Dec. 4, 2023).

With respect to the next evolution of the bar exam in Washington, the NextGen Bar Exam (discussed in detail in the following section) “[i]nformation the Task Force has received from the NCBE so far suggests that the NextGen Exam will address some, though not all, of the race-equity concerns with the current version of the UBE.” Task Force Report at 8.

The NextGen Exam is better positioned to assess the competencies practitioners are looking for in newly licensed lawyers. The NextGen Exam will cut back on the number of topics tested, and within the topics, it will cut back on the amount of highly detailed information that graduates will need to memorize. In a departure from the current emphasis on multiple-choice questions, the NextGen Exam will utilize an integrated question format that includes a range of question styles, including essay, short answer, and multiple-choice questions, on related areas of law. On some topics, the NextGen Exam will provide legal material to the candidate and ask the candidate to synthesize the information and apply it to a novel fact situation. The NextGen Exam will assess some of the skills newly licensed lawyers should possess, such as client counseling and advising and the ability to engage in legal research. And the NCBE has stated that the NextGen Exam will not be a “speeded” exam, which requires candidates to rapidly move through questions. 

Task Force Report at 8-9 (footnote omitted).

THE FUTURE

In 2018, NCBE commissioned a comprehensive three-year study of the bar exam. After conducting listening sessions with hundreds of stakeholders from bar admission agencies, supreme courts, the legal academy, and attorneys from across the country, NCBE’s Testing Task Force performed a nationwide practice analysis involving nearly 15,000 lawyers who provided data on the work performed by newly licensed lawyers and the knowledge and skills required for early-career competence. 

The NCBE began developing a next generation uniform bar exam in 2021, based on the results of its study and the recommendations of its Testing Task Force. The resulting NextGen Bar Exam will be available for use by jurisdictions in July 2026, which is when Washington will first administer it.

As of June 2024, 20 U.S. jurisdictions have adopted the NextGen Bar Exam.  Connecticut, Guam, Maryland, Missouri, and Oregon will join Washington in first administering the exam in July 2026.

The nine-hour NextGen Bar Exam, administered over 1.5 days, will assess the following nine foundational concepts and seven foundational skills, using the integrated exam structure (essay, short answer, and multiple-choice questions):

  • Foundational concepts and principles: civil procedure, contract law, evidence, torts, business associations, constitutional law, criminal law, real property. (Starting in July 2028, family law will be included.)
  • Foundational lawyering skills: legal research, legal writing, issue spotting and analysis, investigation and evaluation, client counseling and advising, negotiation and dispute resolution, client relationship and management.

See examples of bar exam questions in Sidebar No. 2 below. For more information on the NextGen Bar Exam, including more sample questions, go to https://nextgenbarexam.ncbex.org/nextgen-sample-questions/. 

Q. At the same time these alternative pathways were approved, the bar exam pass rate was lowered from 270 to 266. What is the meaning of that number and why was this decision made? 

A. The Washington Supreme Court temporarily reduced the cut score to 266 for lawyer bar exams administered during the pandemic (2020, 2021, and 2022). Currently, jurisdictions across the country use cut scores ranging from 260 to 272 with a median of 268 and an average of 267 (scores are reported on a 400-point scale). Of the 39 states currently using the UBE, six have set their cut scores at 260.

The deans of Washington’s three law schools asked the Washington Supreme Court to adopt a cut score of 260, consistent with the “overwhelming research on fairness and access to the profession.” March 1, 2024, Memo from Chief Justice to Justices re Law Deans’ Bar Exam Cut Score Recommendation En Banc Case Conference, March 6, 2024. This memo cites evidence “that the bar exam disproportionately burdens BIPOC and low-income examinees” and that “[t]here is a statistically significant negative relationship between the percentage of Black and Latinx students in a law school’s student body and the bar passage rates of that school’s graduates, indicating that the bar exam is a more significant barrier to practice for students of color than their white peers.” Looking specifically at Utah’s experience (bar cut score set at 260 in 2023), the chief justice’s memo cites to and includes the full text of public comment from the deans and faculty of Utah law schools attesting that “the most important factor in bar passage is the ability to devote oneself to exclusive study (usually correlated with affluence) and that the bar exam disproportionately ‘burdens and disadvantages women, racialized minorities, and low-income earners.’” Memo at 2 & Appendix 2.

A recent study examining the California bar exam, cited by the Washington Task Force, demonstrated that lowering the cut score for passing the bar exam had a valuable impact on reducing the equity gap in lawyer licensing without risk of harm to the public (no measurable impact on complaints, charges, or disciplinary action taken against lawyers). Task Force Report at 13 (footnotes omitted).

The Washington Supreme Court’s March 15, Order sets the lawyer bar exam cut score at 266, to be applied retroactively to the July 2020 exam. From the summer 2020 through the winter 2024 bar exams, 118 additional candidates for admission passed the bar exam due to the reduction of the cut score to 266. The cut score of 266 will remain in effect until the NextGen Bar Exam is administered in July 2026. In addition, the cut score of 266 will continue to be accepted for UBE score transfers until 40 months after the administration of the exam in which the score was earned. 

More information > Links to all of the documents cited in this article can be found at www.courts.wa.gov/appellate_trial_courts/Supreme Court/?fa=supremecourt.LicensureTaskForce. 

SIDEBAR No. 2

Examples of Bar Exam Questions

past

Washington State Bar Exam

All-essay exam, including professional responsibility essay questions, administered July 1977 through February 2013.

SAMPLE WSBA-DEVELOPED ESSAY QUESTION (from 1991) > Attorney Art met with clients, Becky and Clyde. They advised Art their business was being sued. Becky and Clyde told Art they were in the middle of a business deal and did not want the lawsuit to destroy it. Art assured them he could win the suit and would gain them two years by asserting every counterclaim he could think of and dragging out discovery as far as the court would allow. Months later Art was contacted by Bank wanting to retain him to evaluate the effect of the litigation against Becky and Clyde for their business financing. Art advised Bank that he had always felt Becky and Clyde were at significant risk of losing their business in the litigation. He told Bank he did not have the heart to tell them yet. A year later a substantial judgement was entered against Becky and Clyde as partners. Becky’s and Clyde’s business folded. They began arguing about how to divide business liabilities. Art suggested that he act as a go-between to settle their partnership liabilities. Art told Becky he would continue to represent Clyde if negotiations failed. Discuss the issues raised under the Washington Rules of Professional Conduct.

present

Uniform Bar Exam (UBE)

200 multiple choice questions, six essay questions, and two performance tasks; administered July 2013 to present.

SAMPLE UBE MULTIPLE-CHOICE QUESTION > A man sued a railroad for personal injuries suffered when his car was struck by a train at an unguarded crossing. A major issue is whether the train sounded its whistle before arriving at the crossing. The railroad has offered the testimony of a resident who has lived near the crossing for 15 years. Although she was not present on the occasion in question, she will testify that, whenever she is home, the train always sounds its whistle before arriving at the crossing. Is the resident’s testimony admissible?

  • A. No, due to the resident’s lack of personal knowledge regarding the incident in question.
  • B. No, because habit evidence is limited to the conduct of persons, not businesses.
  • C. Yes, as evidence of a routine practice.
  • D. Yes, as a summary of her present sense impressions.

( Answer is C )

future

NextGen Bar Exam

Nine hours total over two days—six hours on the first day and three hours on the second day; three sessions of three hours each, with each session containing about 40 multiple choice questions, two integrated question sets, and one performance task; administered beginning in July 2026.

SAMPLE NextGen MULTIPLE-CHOICE QUESTION > Your client, a state college, hired a tennis coach at a salary of $60,000 per year. The parties orally agreed on a start date but did not discuss a contract duration. Seven months after the coach started, the client now wants to fire the coach without holding a hearing because of budget cuts to the college’s athletic department. The client has asked for your advice about the potential legal repercussions of firing the coach. Which of the following legal topics are the most important for you to research before advising the client? Select two.

  • A. Employment at will.
  • B. Parol evidence.
  • C. Procedural due process.
  • D. Substantial performance.
  • E. Substantive due process.
  • F. Takings clause.

( Answers are A and C )

NextGen INTEGRATED QUESTION SETS > https://nextgenbarexam.ncbex.org/integrated-question-sets/

NextGen PERFORMANCE TASKS > https://nextgenbarexam.ncbex.org/performance-task/