Paul L. Caron

Thursday, July 23, 2020

Portability Of The UBE: Where Is It When You Need It?

TaxProf Blog op-ed:  Portability Of The UBE: Where Is It When You Need It? (full manuscript), by Suzanne Darrow-Kleinhaus (Touro):

49Nothing is going right for this year’s law school graduates and all others planning to take the bar exam this summer. Living with COVID-19 is stressful. Preparing for the bar exam is stressful. Now put the two together and add the uncertainty that no one really knows when, where, or even if, there will be a bar exam to take.  Still, there is another factor adding to the anxiety for Uniform Bar Exam (UBE) [1] candidates: just when “portability” was needed so they could sit for the bar exam in one UBE jurisdiction and transport that UBE score to their home jurisdiction for licensure, the door slammed shut.

Although far from a New York problem, probably no candidates have been more deeply affected than those in New York. This is because New York tests more candidates than any other state with over 14,000 bar candidates annually and over 10,000 for the July bar exam alone. In 2019, a total of 14,200 candidates sat for the bar exam in New York: 10,071 candidates sat for the July bar exam and 6,536 sat for the February bar exam.[2]  New York’s inclusive policies attract candidates from other jurisdictions, including a large number of foreign educated and L.L.M. applicants. In 2019, a total of 5445 foreign educated candidates sat for the bar exam in New York.[3] This number far exceeds any other jurisdiction.

In New York, the problem became evident when bar exam re-takers followed the advice that they were given by New York’s Court of Appeals and Board of Law Examiners. In a letter to New York’s law school deans, the Honorable Janet DiFiore, Chief Judge of the Court of Appeals, recommended that because it would be possible to seat only a fraction of the over 10,000 candidates that typically sit for its bar exam in the summer, “all candidates are encouraged to consider sitting for the UBE at a later date or in other jurisdictions that may be better positioned to accommodate them at this time.” [4] Confident in making this recommendation, Judge DiFiore noted that “[t]he primary advantage of the UBE is portability – candidates can take the UBE anywhere in the United States and transfer that score to support admission to the bar in New York.”[5] New York’s Board of Law Examiners (BOLE) reiterated this advice on its website.[6]

Taking New York at its word, candidates who failed to qualify for seating under its “temporary priority seating protocol”[7] sought out other UBE jurisdictions. Instead of finding a seat for the bar exam, they found barriers: closed application periods, seating for only in-state law school graduates or other preferential considerations,[8] and burdensome application processes with exorbitant fees, even from “courtesy seating” jurisdictions.[9] 

This is problematic for a UBE jurisdiction since taking the UBE in any particular jurisdiction should not require a commitment to practice in the testing jurisdiction.  It goes to the basic premise of a UBE score and the intent of jurisdictions in becoming UBE jurisdictions.

The mobility of scores is inherently antithetical to barriers in achieving those scores. A major selling point to join the UBE network was its portability and with it the ease of movement between jurisdictions. The New York Board of Law Examiners clearly thought so when it encouraged candidates to pursue this option during the current crisis. While this raises federalism issues and constitutional constraints on states under Article IV’s Privileges and Immunities Claus and the Dormant Commerce Clause, this discussion is limited to the mobility question under the UBE because UBE jurisdictions are supposedly bound by a common undertaking: the mobility of bar exam scores between them.

While every jurisdiction and every UBE jurisdiction should remain autonomous in its requirements for licensure, there is an issue as to whether a UBE jurisdiction should be able to place different requirements on candidates who are sitting for a UBE score. Sitting for an exam as part of a licensure process is not the same as licensure itself. If the UBE is truly "portable," then part of that portability would be consistency in not just the exam components but the requirements for taking the UBE to acquire a score. In answering the question, “What is the UBE?”, NCBE answered, “It is a uniformly administered, graded, and scored bar examination that results in a portable score, not a portable status.”[10] If taking the UBE is only to acquire a “score”, then UBE jurisdictions should not be able to place different requirements on candidates who are just there to sit for a score.

These limitations to portability might have gone unnoticed but for the emergency created by COVID-19 and the imposition of seating limitations. But we know it now and it raises a very thorny issue: given the crisis of the pandemic and the genuine need to mitigate risks to health and safety by restricting the size of public gatherings, are some jurisdictions using the pretext of the pandemic to disproportionately limit the number of candidates it will seat for their bar exam. It raises a further issue of whether UBE jurisdictions have a duty to seat candidates from UBE jurisdictions beyond what they might otherwise provide to candidates from non-UBE jurisdictions.

These issues arise because seating limitations are not limited to the larger jurisdictions but have been imposed in jurisdictions of all sizes, even the smallest. North Dakota is limiting the number of examinees to 85.[11]

The question becomes whether the UBE is even needed. Non-UBE jurisdictions are in a much better position than UBE jurisdictions because they did not give up control over their bar exam. They are not restricted to a common set of questions that are created, coordinated, and controlled by NCBE. Instead, they have the freedom to decide what type of exam to give, when to give it, and what form it will take.  They have the flexibility to respond to the needs of their candidates and all those involved in the exam process during this period of crisis.  And they did.  For example, as of May 20, 2020, the Nevada Board of Law Examiners announced a completely re-configured online bar exam and using only a written exam. [12]  As of July 16, 2020, New York still does not have a plan for its bar exam.[13] Maybe New York would have a plan if it was not tied to the UBE.

The COVID-19 pandemic has exposed serious limitations and vulnerabilities to the UBE, even beyond its questionable scoring and equating practices that can lead to the preposterous result that “a candidate might receive different scores in two different UBE jurisdictions.”[14] NCBE is being challenged by calls for a diploma privilege while non-UBE jurisdictions are creating their own bar exams and not including the MBE. Even UBE jurisdictions are creating their own reciprocity agreements in adopting NCBE’s remote October 2020 bar exam since the score earned would not qualify as a portable UBE score.[15]  As of July 8, Massachusetts, Maryland, and the District of Columbia, all UBE jurisdictions, entered into reciprocal agreements for the portability of scores earned on the remotely-administered October 2020 Bar Examination.[16] More are sure to follow.

If the UBE is not particularly useful during a pandemic when you might need it to sit for the bar exam in one UBE jurisdiction and transfer that score, then perhaps its value lies solely in its use for career portability. This was the strongest argument made to support its adoption.[17] However, according to the findings of the New York State Bar Association Task Force on the New York State Bar Examination (“Task Force”), “portability provides only a small benefit to only a minority of test takers.”[18]  Relying on data supplied by the BOLE, the Task Force reported that “the overwhelming majority of New York UBE score earners do not transfer the scores to other UBE jurisdictions.”[19] With respect to the value of portability for New York score earners, the Report concluded “that no meaningful “portability” benefit enures to most law school graduates who take the bar examination in New York to gain admission here.”[20] 

NCBE must be very uneasy about the Task Force’s findings. If New York received no discernible benefit for its attorneys in portability “out” of New York or “in” to New York, and no benefit to portability when faced with an urgent need for its candidates to be seated in another UBE jurisdiction, then the logical question is whether there is any benefit at all to remaining a UBE jurisdiction. Moreover, it is unlikely that New York is alone in questioning the viability of the UBE — other jurisdictions must be doing the same, especially those creating, administering, and grading their own bar exams this year without NCBE’s assistance.

In the race to adopt the UBE, much was overlooked. It may be true that there was a difference between what UBE jurisdictions expected when they joined the UBE community and what they were entitled to receive, but that is of little consequence now. The pandemic exposed critical limitations to the UBE’s portability that cannot be ignored. When combined with the evidence that the UBE’s scaling and scoring practices may make its score unreliable so as to achieve its primary purpose of assessing minimum competency, [21] there is no choice but to reconsider using the UBE.

As a result of such scrutiny, it is very likely that jurisdictions will leave the UBE and prospective jurisdictions will place their plans to join the UBE on hold. There will be many changes in the wake of COVID-19 and no doubt the UBE will be one of them. The current situation is extremely fluid with daily changes in jurisdictions’ plans for administration of their bar exam in light of the changing health crisis.  No matter what is eventually decided for bar exam day, it will not change the fact that when portability of the UBE was truly needed, it was not there.

[1]UBE: Uniform Bar Examination, National Conference of Bar Examiners, (last visited July 3, 2020). The UBE is a two-day, law licensing exam that is used across multiple jurisdictions and is coordinated by NCBE. Every UBE jurisdiction uses the same essay questions, the same performance tasks, and the same grading guidelines. As long as the candidate sits for all portions of the UBE in the same UBE jurisdiction and in the same administration, a “portable UBE score is earned that can then be transferred to other states that have joined the UBE network. In short, the UBE allows a candidate to sit for one bar exam and use that score to gain admission in other states without having to take another bar exam.  It is important to note, however, that a candidate must still meet the passing standards set by the other UBE jurisdiction and any state-specific licensure requirements.

[2] See 2019 Statistics, The Bar Examiner, National Conference of Bar Examiners, (last visited July 1, 2020).

[3] Letter from New York State Board of Law Examiners to Presiding Justice Alan D. Scheinkman at 13 (Dec. 16, 2019) [hereinafter “BOLE Letter”] Exhibit A in  Report of the New York State Bar Association Task Force on the New York Bar Examination, New York State Bar Association, (April 2020) [hereinafter Task Force] The report is dated May 5, 2020 and was approved by House of delegates on April 4, 2020.

[4] Letter from Judge Janet DiFiore, Chief Judge of the State of New York Court of Appeals, to Deans of New York Law Schools (April 30, 2020) [hereinafter Letter from Judge DiFiore] (on file with author).

[5] Id.

[6] See *New June 17, 2020* Fourth Application Period For The September 2020 Bar Examination, BOLE, (last visited June 19, 2020).

[7] See Letter from Judge DiFiore, supra note 4.

[8] See Announcements, UPDATE (4/28/2020) Information about Bar Admissions and COVID-19, Missouri Board of Law Examiners, (last visited June 20, 2020). Typically, priority is given to graduates of law schools in the jurisdiction who are first-time takers. Candidates outside the jurisdiction and repeat takers are lower down on the list. The lower down on the list one goes, the less the likelihood of an available seat. As an example, consider Missouri’s directions to applicants: 

Pursuant to the authority provided in the Court’s order, the board is limiting the number of July 2020 exam applications that will be accepted for filing, effective April 30. The Board will accept no more than 760 applications, and if the maximum number is reached prior to the June 1 application deadline, the registration period for the July 2020 exam will be closed.  At this time, the July 2020 exam registration period is open and the deadline remains June 1. Applications properly filed on or after April 30 will be accepted in the order received, up to the maximum number, with priority afforded equally to Missouri residents, graduates of ABA-approved law schools located in Missouri or a contiguous state, licensed attorneys for an employer located in Missouri, and recipients of an offer of employment as a licensed attorney for an employer located in Missouri.  No application to retake the exam will be accepted for filing on or after April 30 if the applicant has sat for four or more prior administrations of the Missouri bar exam.

[9] See Bar Examination Application Instructions, Uniform Bar Examination (UBE) Courtesy Seating, New Mexico Board of Law Examiners, (last visited July 3, 2020). “Examinees who only wish to sit in New Mexico in order to transfer their scores to other states must submit all required items listed under ‘The following documents must be submitted by the filing deadline’ and ‘The following documents must be submitted before you can be approved to sit for the exam,’ found on the website, except for those items that are explicitly listed as not necessary for UBE Courtesy Seating.”

[10] Id.

[11] See Bar Exam Application,  Policy – July 2020 Bar Exam, North Dakota Board of Law Examiners, (last visited July 11, 2020).  North Dakota has limited its examinees for the July 2020 exam to 85 with its own schedule of priority seating and it may even need to be less. How North Dakota would settle on such a number is not without a basis. According to the ABA Standard 509 Information Report, North Dakota enrolled 71 students for the first- year class in 2017, the class which is to sit for this July’s bar exam.  North Dakota, University of – 2017 509 Information Report, (last visited July 11, 2020).

[12] Nevada Supreme Court Approves Modified Bar Exam for July 2020, State Bar of Nevada (May 21, 2020), (last visited July 11, 2020). See also Order Approving Modified July 2020 Nevada Bar Examination, Supreme Court  of Nevada, In re Matter of the July 2020 Nevada State Bar Examination, ADKT 0558, May 20, 2020,[hereinafter Nevada Court Order]

[13] See *New July 16, 2020* Update Regarding the September 2020 Bar Examination, BOLE, (last visited July 22, 2020).

[14] BOLE Letter, supra note 3, at 16. 

[15] See NCBE Update: NCBE to Provide Additional Support for Jurisdictions During COVID-19 Crisis, National Conference of Bar Examiners, (June 1, 2020,  4:00 PM) “This remote testing option will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.” 

[16] See FAQs Related to October 2020 Examination for Admission to Massachusetts Bar, (last visited July 22, 2020). Maryland State Board of Law Examiners COVID-19 Emergency Response ( 7/8/2020), Maryland Courts, {hereinafter Maryland State Board of Law Examiners] Committee on Admissions, Important Notices, Notice to October 20202 Remote Bar Exam Applicants,  (July 7, 2020), District of Columbia Courts, [hereinafter Committee on Admissions, District of Columbia]

[17] See Task Force supra note 3, at 65. 

[18] Id

[19] Id. at 66. 

[20] Id

[21] Task Force, supra note 3, at 47.

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