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Does the adoption of the uniform bar exam foreshadow uniform regulation?

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Jayne Reardon

Jayne Reardon

We have reached a tipping point—finally—on the admission of attorneys to the practice of law in this country. In 2018, several state supreme courts, including Illinois with more than 94,000 registered attorneys, announced that they would adopt the Uniform Bar Exam. Thirty-three jurisdictions have now adopted the UBE. Only a handful of them also require a state-specific component as a requirement of admission.

If most jurisdictions acknowledge a shared understanding of the minimum acceptable knowledge, skills and competencies of lawyers to be admitted to practice law, it seems a reasonable extrapolation to wonder whether, when, and how there will be more uniform regulation of lawyers once they have been admitted to the practice of law. Are we moving toward more national standards for attorney regulation?

UNIFORMITY OF STATE BAR EXAMINATIONS

Most jurisdictions have administered portions of the UBE for several years. The UBE is coordinated by the National Conference of Bar Examiners, and is composed of several parts that have been variously administered by the 56 different U.S. jurisdictions, in whole or part, for decades.

• The Multistate Bar Exam is a 200-question, multiple-choice test covering such areas as civil and criminal law and procedure, contracts, constitutional law, evidence, real property and torts. Since 1972, the NCBE has produced this test with the stated purpose to assess how an examinee can apply legal principles and reasoning to analyze fact patterns. According to the NCBE, 54 jurisdictions used the MBE in 2017.

• The Multistate Essay Exam, consisting of six 30-minute essay questions, has been produced by the NCBE since 1988. The purpose is to test examinees’ ability to identify legal issues in a hypothetical situation and present reasoned analyses of the legal principles relevant to solutions. This component differs from the MBE because of its focus on communication in writing. Forty-one jurisdictions have now adopted the Multistate Essay Exam.

• The Multistate Performance Test consists of two 90-minute task items designed to test an examinee’s ability to use lawyering skills in a realistic setting, such as separating relevant from irrelevant facts, identifying and resolving ethical dilemmas and sorting detailed factual materials. Produced since 1997, 47 jurisdictions have now adopted one or both of the MPT items in 2017. (UBE jurisdictions used both and weighted this component at 20 percent.)

Since 1980, the NCBE also has produced the Multistate Professional Responsibility Exam consisting of 60 multiple-choice questions including such topics as regulation of the legal profession, attorney-client relationships, client confidentiality, conflicts of interest, the different roles of attorneys, and safe-keeping clients funds. Fifty-three jurisdictions have now adopted this test.

ATTORNEY MOBILITY AND THE UBE

The rationales stated by various state supreme courts in announcing the adoption of the UBE are fairly consistent. Often reiterated themes are that the legal field continues to evolve such that multijurisdictional or cross-border practice is common, and that the UBE results in a “portable score” that lawyers can use to apply for admission in other UBE jurisdictions. In Illinois, as in other states, all of the UBE components had been used as parts of the Illinois Bar Exam for a number of years. And the state supreme courts recognize that the UBE is a national standard that both protects the public and allows cross-border practice that effectively serves the public.

According to the NCBE’s Bar Examiner magazine, 27 jurisdictions administered the UBE in 2017, resulting in 26,897 UBE scores earned. In terms of “porting” the scores to another jurisdiction, coincidentally, the same total number of scores were transferred out of UBE jurisdictions and into UBE jurisdictions: 3,776. In looking at the table of which states lost or gained examinees to or from another UBE jurisdiction, no discernible trend emerges. Arizona, Colorado and New York had more scores transferred out of than into their states. Connecticut, Kansas and Washington D.C. had more scores transferred into their jurisdictions than out.

Time will tell whether this mobility will address the issue of attorney underemployment and unemployment, or the serious access to legal services gap.

ANIMATING MOVES TO AMEND REGULATORY RULES

A rationale underpinning the growing adoption of the UBE is a recognition that lawyers should be allowed to meet the consumer demand for effective and efficient client service across state borders. Applying this same rationale to the regulation of attorneys following bar admission should lead to more coordination, if not uniformity, among the states as they regulate the ethics of practicing lawyers. Several examples—pro and con–come to mind.

Amendments to the ABA Model Rules affecting lawyer advertising (Model Rules 7.1 through 7.5) have been under consideration for several years. An Association of Professional Responsibility Lawyers report in 2015 notes the patchwork of different states’ versions of the rules of professional conduct that spawn confusion and attorney complaints against one another but few, if any, public complaints. That report and a supplemental report issued the following year have been the basis for amendments to the state advertising rules in Virginia and similar proposals under consideration in Washington and Oregon.

The ABA Standing Committee on Ethics and Professional Responsibility held hearings and received comments from numerous lawyers about the need for uniformity and easing restrictions in the rules that practically operate to prohibit lawyers from reaching potential clients. Rather than developing something bold that will serve as a model for states, in my opinion the committee put forth a “tweak around the edges” proposal that will go to the ABA House of Delegates at the Annual Meeting in August. (An ABA Journal story discusses the measure here.) Proposed Resolution 101 makes some good changes in streamlining the Model Rules by removing Rules 7.4 and 7.5 from the black letter law and defining and tightening up the solicitation rule. However, the proposal fails lawyers and the public by keeping intact the language in Model Rule 7.2, allowing lawyers to pay the charges of not-for-profit organizations for advertising and referrals but failing to address the ethics of lawyers paying for advertising with and accepting referrals from for-profit referral or matching services, such as Avvo.

In contrast, the Illinois Attorney Registration and Disciplinary Commission has issued a comprehensive Client Lawyer Matching Services Study. The study cites research documenting the access to justice challenges in Illinois and across the nation. It also cites statistics about under- and unemployed lawyers and the ABA Commission on the Future of Legal Services report calling on courts to examine the possibility of adopting rules and procedures for “judicially-authorized-and-regulated legal service providers.”

The study includes a framework to regulate entities that would connect lawyers and clients while preserving lawyer independence and other core values of the profession. Such regulation would acknowledge that online matching services have demonstrated capacity to connect consumers with affordable attorneys and would eliminate ambiguity about whether a lawyer could ethically participate. Proposed amendments to Rules of Professional Conduct 5.4, 6.3, 7.2 and others are included. Comments are being welcomed at until at least Aug. 31.

In addition, the Association for Professional Responsibility Lawyers has just put together a Future of Lawyering committee. The focus of the committee is to look at the Series 5 Model Rules of Professional Conduct, including the proscription against fee-sharing in Model Rule 5.4. Rule 5.4, adopted in the vast majority of jurisdictions, prohibits lawyers from going into business or sharing profits with those who don’t have a JD. The rule has been cited by many, considering the advances in technology and globalization, as a barrier to innovation and to providing quality and efficient client service.

A different example has been the grassroots growth of legal professionals seeking reform. As ABA Techshow—which highlights the intersection of lawyers, legal professionals and technology—gains in popularity, people are talking about bringing the skills of those without JDs to bear on the access to legal services gap. In the run-up to Techshow 2018 last March, several lawyers and professionals who operate in this space engaged in a “Twitter rant” about the need for innovation and for easing professional conduct rules (such as Rule 5.4) that may be standing in the way of such innovation.

At the helm of this grassroots debate emerged Patrick Palace, former Washington State Bar Association president, who moderated a summit of interested people on this topic at Techshow. Patrick called on his State Supreme Court Justice Barbara Madsen to speak to the participants by phone. Many who were at or heard about the summit urged Patrick to continue the dialogue, so he convened another summit in conjunction with Avvo’s Lawyernomics conference in May, and he intends to hold another summit in conjunction with the Clio conference in October. The ultimate goal is to create a working group that will draft amended Model Rules of Professional Conduct.

As the legal landscape evolves, the interest in attorney qualification, admission to the bar, and regulation is growing. The consensus on standards around admission to practice law should lead to more uniformity in attorney regulation generally. This would be good for lawyers, those adjacent to lawyers who are delivering legal information and providing referrals, and those we serve: potential customers and clients. Get involved in this dialogue—in person, by letter or email, or in social media. This profession is at a crossroads. We have a unique opportunity to reshape regulation to better serve our customers and society. It just may lead to having a more rewarding career in the process.


Jayne Reardon is the executive director of the Illinois Supreme Court Commission on Professionalism. She oversees programs and initiatives to increase the civility and professionalism of attorneys and judges, create inclusiveness in the profession, and promote increased service to the public. She developed the commission’s statewide Lawyer-to-Lawyer Mentoring Program, which focuses on activities designed to explore ethics, professionalism, civility, diversity, and wellness in practice settings. Her prior experience includes practice as a trial lawyer, committee work on diversity and recruiting issues, and handling attorney discipline cases as counsel to the Illinois Attorney Registration and Disciplinary Commission Review Board.


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