A look at what the Minnesota State Board of Law Examiners is doing in its two-year study of the bar exam—and what other jurisdictions are considering.
By Leanne Fuith
Much has been written about the bar exam—our traditional means of measuring minimum competence or fitness to practice law. But as we emerge from the covid-19 pandemic, a period that called into question the administration of bar exams, an increasing number of jurisdictions are evaluating new ways to license lawyers, Minnesota among them.
In this process of evaluation, it is necessary to ask: What is minimum competence to practice law? And what is the best way to measure it?
The current bar exam does not effectively measure minimum competence
Critics argue that the bar exam continues to disproportionately limit, or even exclude, the entry of the historically underrepresented and economically disadvantaged into the legal profession. It is, some assert, a test of economic resources—with the advantage going to those who can afford the cost of expensive bar exam preparation materials and tutoring or who can take a significant time away from work or caregiving responsibilities to focus solely on studying for an exam.
In addition to the concerns about its exclusionary nature, the effectiveness of the bar exam in measuring competence or fitness to practice law has been a longstanding source of concern. In daily practice, lawyers need the knowledge, skills, and ability to understand their clients’ concerns, consult relevant law, and assist clients and other parties in solving problems. The bar exam does not effectively measure all of these.
Most would agree that we need some type of assessment of new lawyers to protect the public and ensure the integrity of the legal profession. In fact, the American public still overwhelmingly supports the requirement that law school graduates pass a bar examination before being allowed to practice law.6 But the current bar exam does not fully reflect the realities of practice.
In a profession focused on becoming more diverse and inclusive and ensuring access to justice on a broad scale, these are compelling concerns. The pandemic shed a new light on questions that had been posed for decades about the efficacy of the bar exam, how it is administered, and whether it actually evaluates minimum competence to practice law. And the legal profession is responding to those questions.
Minnesota embarks on comprehensive two-year competency study
The Minnesota State Board of Law Examiners (MBLE) stepped forward to consider exactly those questions in June 2021 when it launched a comprehensive two-year study of the bar examination and pathways to evaluating minimum competence to practice law.1 The study, which seeks broad input from the bench and bar, is expected to be completed no later than June 1, 2023 and will conclude with a report and recommendation to the Minnesota Supreme Court.2
The MBLE developed the following baseline evaluation criteria for the study:3
- Ensure that members of the bar are worthy of public trust with regard to their professional competence.
- Evaluate applicant’s ability to satisfy the essential eligibility requirements under Rule 5A of the Rules for Admission to the Bar, including:
- an understanding of threshold knowledge in core subjects;
- an understanding of legal processes and sources of law;
- the ability to reason, recall complex factual information, and integrate that information with complex legal theories;
- the ability to determine the importance of the information to the overall client matter;
- the ability to communicate with a high degree of clarity and organization;
- the ability to interact effectively with clients; and
- the ability to conduct legal research.
- Account for diversity in the age, race, ethnicity, gender, geographic location, and practices of applicants and the clients who rely on Minnesota lawyers for their legal needs.
- Ensure equal access to the practice of law and work to eliminate inequitable barriers to the practice of law on the basis of socio-economic status, race, gender, disability status, etc.
- Ensure law student and lawyer well-being.
- Evaluate feasibility in terms of scalability, flexibility, and costs and resources required for implementation: e.g., to applicants, law schools, administration, the bar, regulators, MBLE staff, etc.
- Ability of law schools to implement, the flexibility of curriculum, and any ABA accreditation concerns.
- Reliability of standards to determine meaningful, objective, and consistent results.
- Available data regarding prior use of method/particular model.
- Other considerations raised by key stakeholders.
The Minnesota State Bar Association is also actively supporting the MBLE’s competency study by providing financial resources to the MBLE for process and strategic management guidance and by supporting efforts to establish a transparent process through means such as hosting CLEs and other opportunities for soliciting input from MSBA membership and Minnesota’s affinity bars on the MBLE’s work.
Defining minimum competence
The equity and efficacy of the bar exam or any system of evaluating fitness to practice law require a clear definition of what minimum competence means when it comes to the practice of law.
In October 2020, the Institute for the Advancement of the American Legal System (IAALS), in partnership with Professor Deborah Merritt at The Ohio State University Moritz College of Law and AccessLex Institute, released the results of a study outlining a set of 12 “building blocks” that define minimum competence in the practice of law.4
These building blocks distill insights into the knowledge, skills, and judgment minimally competent lawyers need to serve clients when they begin to practice law—as articulated by the new lawyers and their supervisors participating in the study, which included women, lawyers of color, rural lawyers, and solo practitioners.5
The Building a Better Bar study identified the following 12 interlocking components or building blocks that define minimum competence:6
- The ability to act professionally and in accordance with the rules of professional conduct.
- An understanding of legal processes and sources of law.
- An understanding of threshold concepts in many subjects.
- The ability to interpret legal materials.
- The ability to interact effectively with clients.
- The ability to identify legal issues.
- The ability to conduct research.
- The ability to communicate as a lawyer.
- The ability to see the “big picture” of client matters.
- The ability to manage a law-related workload responsibly.
- The ability to cope with the stresses of legal practice.
- The ability to pursue self-directed learning.
The current bar exam is a method of evaluation that places great weight on the ability to take a closed-book exam under significant time constraints and using, at least in part, multiple-choice questions to assess knowledge and understanding.
The data from the Building a Better Bar study also revealed several key insights about appropriately and accurately assessing minimum competence. Specifically, the study showed that closed-book exams offer a poor measure of minimum competence to practice law and that the time constraints of exams similarly distort assessment of minimum competence.7 It also confirmed that using multiple choice questions to assess minimum competence to practice law bears little relationship to the actual cognitive skills that lawyers use in practice.8
The current bar exam is a method of evaluation that places great weight on the ability to take a close-book exam under significant time constraints and using, at least partially, some multiple- choice questions to assess knowledge and understanding.
In contrast, the Building a Better Bar study showed that written performance tests are more likely to resemble many of the tasks that new lawyers perform. Further, practice-based assessments, such as ones based on clinical performance, may also offer promising possibilities for evaluating minimum competence.9
MBLE working groups evaluate pathways to measure minimum competence
Early in its two-year competency study, the MBLE established three working groups made up of individuals representing a broad set of interests and divergent viewpoints. The working groups were charged with reviewing three models or pathways to determining competency to practice law:10
- An examination at the conclusion of law school.
- A method of evaluation based on clinical or experiential programs during law school.
- A method of evaluation based on supervised practice following law school.
In developing its working group structure and pathways of evaluation, the MBLE looked to work being done in other jurisdictions to study lawyer competency, including Oregon—where, in June 2021, after months of study, the Oregon State Bar Board of Bar Examiners adopted a task force report suggesting supervised practice or law school experiential-learning programs as bar exam alternatives.11 Similar to Minnesota, the Oregon task force focused on public protection and equity in evaluating alternatives to the bar exam and considered the results of the Building a Better Bar study to outline the building blocks of minimum competence.12
Working groups submit recommendations to MBLE
In Spring 2022, MBLE’s working groups researched and evaluated the three proposed models or pathways to determining competency, talked to experts, and discussed preliminary framework criteria. The three working groups provided reports to the MBLE, and those reports are available for public review on the
MBLE website.
Briefly summarized, the recommendations of the working groups are as follows:13
Working Group 1: Examination Pathway
Working Group 1 evaluated the method of an examination at the conclusion of law school. Working Group 1 recommended that Minnesota adopt the National Conference of Bar Examiners’ (NCBE) redesigned NextGen bar exam as one pathway to licensure in Minnesota, based on what is known to date about the NextGen bar exam, which is still in development by the NCBE.14 Working Group 1 also noted in its report that while the proposed changes to the NextGen bar exam appear to be positive in testing foundational skills, the NextGen bar exam remains a standardized test and a broad spectrum of lawyering abilities are difficult to measure in a standardized test. Therefore, Working Group 1 also supports Minnesota adopting multiple pathways to licensure and not relying solely on an exam at the conclusion of law school. Working Group 1 noted that a benefit of adopting the NextGen bar exam is that it will continue to allow portability into other jurisdictions.
Working Group 2: Clinical Experiential Pathway
Working Group 2 evaluated and recommended developing a curricular, experiential pathway as an additional pathway to licensing in Minnesota. A proposed curricular pathway would allow law students to meet the competency component of licensure upon graduation from law school through coursework and participation in experiential programs like clinics and externships. Working Group 2 noted that a curricular pathway would best prepare students for their first year of practice and set them on a course for success and competence in the law without creating any artificial barriers—thereby reducing inequity in bar licensure, increasing the diversity of the profession, and better maintaining the well-being of new lawyers. Working Group 2 recommended that the pathway include creating minimum competence standards to certify curricular and experiential pathways at each of the Minnesota law schools.
Working Group 3: Supervised Practice Pathway
Working Group 3 evaluated and recommended the development of the Minnesota Supervised Practice Pathway as an additional pathway for licensing in Minnesota. Under this program, applicants for licensure would complete lawyering tasks under the supervision of a licensed lawyer for a specified number of hours of practice and submit documentation of those tasks through a portfolio of work to the MBLE to demonstrate minimum competence. Working Group 3 notes that a supervised practice pathway provides the opportunity to evaluate applicants’ actual performance of the skills that lawyers use in practice, much as professions such as medicine and architecture have long required demonstration of skills. Additionally, Working Group 3 suggests that a supervised practice pathway would protect consumers of legal services by ensuring that a newly licensed lawyer has gained meaningful practical experience through having a licensed, practicing lawyer supervise the applicant’s work prior to their admission to the practicing bar.
MBLE to solicit public comment on proposed pathways
Over the next year, the MBLE will continue to study the minimum competencies necessary to practice law and the best models or pathways for evaluating achievement of those competencies. Using the research and recommendations of the three working groups as a foundation, the MBLE plans to develop additional questions about the three proposed pathways to licensure currently being explored in Minnesota and will make those questions available for public comment in November-December 2022.15
In early 2023, the MBLE will refine the recommendations based on public comment and make those refined recommendations available for additional public comment in April 2023. Final recommendations for how to measure competence to practice law in Minnesota will be submitted to the Minnesota Supreme Court for consideration and decision in June 2023.
Click here for more information about the Minnesota State Board of Law Examiners Competency Study, including matters of process, findings, timeline, and opportunities to provide input.
NOTES
2 Id.
3 Id.
5
National Survey Finds Support for Bar Exam, National Conference of Bar Examiners (9/30/2020). In a recent survey, 60 percent of Americans supported a supervised in-person bar exam with masks, social distancing, and compliance with all other local health guidelines during the covid-19 pandemic. When survey respondents were asked about the post-pandemic environment, support for the in-person bar exam increased to 70 percent.
6 Cornett and Merritt, Building a Better Bar: The Twelve Building Blocks of Minimum Competence (Institute for the Advancement of the American Legal System, October 2020)
7 Id.
8 Id.
9 Id.
11 Oregon State Bar Board of Bar Examiners Recommendations of the Alternatives to the Bar Exam
Taskforce Report (6/18/2021).
12 Id.
14 The National Conference of Bar Examiners is in the process of implementing a next generation of the bar exam which was approved by NCBE’s Board of Trustees at the end of January 2021. The NCBE suggests that the new NextGen bar exam will measure both knowledge and skills holistically through a refined and focused list of Foundational Concepts and Principles and Foundational Skills. The NextGen bar exam will take five years to develop and implement and is expected to be available in 2026. More information about the NextGen bar exam is available
here. Working Group 1 recommends adopting the NextGen bar exam for use in Minnesota based on the information available about the Next-Gen bar exam as of the date of the working group’s report. Working Group 1 further notes that much is still unknown about the NextGen bar exam and that the exam does present some concerns, so Working Group 1 supports multiple pathways to licensure in Minnesota.
Minnesota State Board of Law Examiners WebsiteJurisdictions outside MN advance bar licensure reforms
Minnesota is not the only place where conversations about bar licensure reform are taking place. In states around the country as well as internationally, courts, bar examiners, and members of the legal profession are considering how to more effectively train, evaluate, and license attorneys. The following is a preview of just a few.
OREGON
During the early months of the pandemic, Oregon was one of five states that adopted some form of temporary diploma privilege for examinees sitting for the bar exam.1 Oregon eventually returned to administering the bar exam but has continued to explore the idea of long-term alternatives.
In June 2021, after months of study, the Oregon State Bar Board of Bar Examiners adopted a task force report suggesting supervised practice or law school experiential-learning programs as bar exam alternatives for attorney licensure. The board then submitted the report to the Oregon Supreme Court for consideration.2 The task force focused on consumer protection and equity in evaluating alternative models to the bar exam and looked to a two-year study published in October 2020 by the Institute for the Advancement of the American Legal System, which outlined the building blocks of minimum competence to practice law.3 Early indications are that the Oregon State Bar’s report and recommendations were well-received.
In January 2022, the Oregon Supreme Court “approved in concept” an Oregon State Bar proposal that would allow law graduates to become licensed after working under the supervision of an experienced attorney for 1,000 to 1,500 hours (the Supervised Practice Pathway), and another proposal under which Oregon law students would spend their last two years of law school completing a body of practice-based coursework and a capstone portfolio (the Oregon Experiential Pathway).4 These bar exam alternatives would be available to law students and lawyers within and outside the state of Oregon.5
There is much more work to be done before these alternative pathways are approved in Oregon and become available to applicants for attorney licensure, but Oregon’s work and the comprehensiveness of its task force report have generated momentum around bar exam reform across the nation. As of their January 2022 announcement, Oregon was just the third state to propose licensing attorneys through some means outside of the bar exam.6 Since then, the work of the Oregon State Board of Bar Examiners has generated interest from bar exam reformers nationwide and has become a model for other states considering reform, including Minnesota.
CALIFORNIA
In 2018, the California State Bar Board of Trustees created the California Attorney Practice Analysis (CAPA) Working Group to take a fresh look at the knowledge, skills, and abilities needed by entry-level attorneys in California to practice ethically and competently.7 To evaluate the recommendations raised by the CAPA Working Group as well as additional policy questions regarding the California bar exam’s format and pass score, the California Supreme Court and the Board of Trustees established the joint Blue Ribbon Commission on the Future of the California Bar Exam.8
The commission is charged with considering whether a bar exam is the correct tool to determine minimum competence for the practice of law and what specifications should come with alternatives to the bar exam to ensure competency.9 Recommendations will also address whether to make changes (and if so, what changes) to the California Bar Exam.10 The commission consists of 19 members appointed by the Supreme Court and reflecting the state’s demographic and geographic diversity and diversity in attorney practice sectors and settings.11 The commission began its work in the second quarter of 2021 and is scheduled to present a final report on its findings and recommendations later in 2022.12
UTAH
In 2020, Utah was among the first jurisdictions to implement diploma privilege during the pandemic, allowing graduates to become licensed after completing law school and working a certain number of hours under a licensed attorney.13 Since then, Utah has also returned to administering the bar exam, but has continued to evaluate longstanding questions about the bar exam and how well it measures a graduate’s competency.14
Now, a task force of legal experts from Utah and around the country is looking at alternatives to the state’s bar exam. The Utah task force is focused on identifying better ways to evaluate law student knowledge and performance, particularly with respect to the skills attorneys regularly use in day-to-day work, without imposing unnecessary barriers such as a lack of time or money to fully prepare for the bar exam—barriers that often end up serving those with more privilege.15
FLORIDA
In June 2022, the Florida Board of Bar Examiners (FBBE) released the results of a comprehensive, multi-year practice analysis study designed to determine the knowledge, skills, and abilities critical for newly licensed Florida attorneys to have at the time of admission to the Florida bar.16
FBBE’s practice analysis study identified broad areas of responsibility that attorneys are expected to master across the range of settings and areas of practice, including research and analysis, oral and written communication, strategy development and implementation, practice management, professionalism and ethics, and the attorney/client relationship. It also identified a number of subject areas in which attorneys must be knowledgeable as they enter the profession. The study gives the FBBE an empirical understanding of the common activities that attorneys perform and what they must know as they practice early in their career.
With the practice analysis study concluded, the FBBE will use the study’s data to analyze what content should be tested on the Florida bar examination and how that content should be tested–including what subject areas to test, the frequency of testing subject areas, whether changes to the FBBE’s current test are necessary, and alternatives to the current exam’s design.
CANADA
In June 2020, in the early days of the pandemic, four Canadian provinces launched an alternative to the bar exam called the Practice Readiness Education Program (PREP).17 A nine-month program from the Canadian Centre for Professional Legal Education, PREP became available to 800 licensing candidates in Alberta, Manitoba, Nova Scotia, and Saskatchewan on June 1, 2020. PREP’s online learning model uses the format of a virtual law firm and allows new lawyers to see how a law firm operates.
The PREP program, which is carried out in concert with a candidate’s articling placement,18 doesn’t re-test candidates on information they have already learned in law school. It instead helps them to develop the competencies required to be admitted to the bar as an entry-level lawyer. The program includes four phases involving interactions, transactions, and simulations; it promotes competencies such as professional ethics and practice management.19 Most complaints faced by early-career lawyers are based on practice management issues (not substantive legal issues) and the PREP program teaches candidates how to interview clients, manage files, use practice management software, and handle trust accounts, among other skills.
NOTES
2 Oregon State Bar Board of Bar Examiners Recommendations of the Alternatives to the Bar Exam
Taskforce Report (6/18/2021).
3 Id.
5 Id.
6 Id. Only two other states, Wisconsin and New Hampshire, currently allow law school graduates to receive a license without the bar exam. Wisconsin’s “diploma privilege” permits graduates from the two Wisconsin law schools to be licensed in Wisconsin without sitting for the bar exam. New Hampshire also permits a small group of law students each year who have completed a specialized two-year curriculum as part of the Daniel Webster Scholar Honors Program to become licensed in New Hampshire without sitting for the bar exam. See
Daniel Webster Scholar Honors Program at the University of New Hampshire.
8 Id.
10 Id.
12 Id.
14 Id.
15 Id.
18 Articling is the last step in a law student’s formal legal education in most Canadian provinces and consists of working under the supervision of a qualified, licensed lawyer for a period of time after graduation from a Juris Doctor (JD) or Bachelor of Laws (LLB) program. Regulation of the legal profession in Canada: overview (Thomson Reuters PracticalLaw, 6/1/2021).
19 Goodwin, Gary, Never let a good crisis go to waste (Canadian Lawyer, April 2020).
Leanne Fuith is a professor of law at Mitchell Hamline School of Law, where she teaches courses in business formation and management and lawyer and law student professional identity formation. She is a member of the MSBA Assembly and Council and a working group participant in the Minnesota State Board of Law Examiners’ competency study of the bar exam. She previously practiced business law, employment law, and commercial and employment litigation and is admitted to practice in the state of Minnesota.