McMaster examines the practicality of the Uniform Bar Examination

Aug. 2, 2019
President’s Message By Lori McMaster

“To UBE or not to UBE? That is the question.” I’m writing this message as recent law school graduates in Pittsburgh and throughout the U.S. are getting ready to take the July bar exam. Please breathe deeply as your own visceral, gut-wrenching memories of that time return to you. Just keep repeating: “I already passed the bar. I already passed the bar.”

As we approach the bar exam, I can tell you that a central issue on many people’s mind is whether Pennsylvania will eventually adopt the Uniform Bar Exam (UBE). The UBE is a test, prepared by the National Conference of Bar Examiners and administered (or adopted for future administrations) in 36 U.S. jurisdictions. It consists solely of the Multistate Bar Examination (MBE), the Multistate Essay Examination (MEE), and the Multistate Performance Test (MPT), and offers portability of scores across state lines. The American Bar Association has resolved to encourage the adoption of the UBE. The Pennsylvania Supreme Court is not currently moving towards adoption of the UBE, in part due to the potential financial impact to bar applicants in the form of additional licensing fees.

As Pennsylvania has not yet adopted the UBE, attorneys may not seek admission in Pennsylvania based on a transferred UBE Score. New York, Ohio, West Virginia and Maryland have adopted the UBE, therefore Pennsylvania is now an island (with the exception of Delaware) as to the UBE.

The question of whether Pennsylvania should adopt the UBE is a critical one for law students, legal educators, legal employers, and the legal profession generally. Proponents of the UBE cite the need to facilitate lawyer mobility, the demands of modern multijurisdictional practice, and the fact that law is the only major profession that has not adopted a uniform licensing exam. While counseling law students, I am frequently asked whether they should sit for the bar exam in Pennsylvania or sit for the UBE.

One can’t just “take the UBE.” Examinees must apply for admission in a state that has adopted the UBE. Once you do take the UBE, you earn a score. Each state that has adopted the UBE has adopted a minimum passing score. Once the score is released, that score becomes “portable” and can be used to gain admission by transferred UBE score in any other jurisdiction where the score is sufficiently high to gain admission. However, it’s not an automatic admission; an examinee still must apply and meet all character and fitness qualifications of the second jurisdiction.

A passing bar exam score in Pennsylvania limits an applicant to admission in Pennsylvania. This creates difficulty for law school graduates who want to practice in the Philadelphia area, where many law firms also serve clients in southern New Jersey. In fact, prior to New Jersey becoming a UBE state, it was virtually a requirement for Philadelphia-based lawyers to be admitted in both Pennsylvania and New Jersey. The New Jersey bar used to be administered on Wednesday and Thursday so that an examinee could sit in Pennsylvania for the PA essays and Multi-State Exam on Tuesday and Wednesday, and then sit for the New Jersey essays on Thursday. Those graduates could be admitted in two jurisdictions in one bar exam sitting. As the UBE requires participating jurisdictions to administer the UBE on Tuesday/Wednesday, there are no longer any states where one could sit concurrently with Pennsylvania and get admitted.

While Pennsylvania does participate in reciprocity with many U.S. jurisdictions, one must have practiced in Pennsylvania for five years immediately preceding the date of filing the application for admission. That is little comfort for recent graduates seeking to have geographically diverse practice options.

Opinions differ among individuals serving in student services roles within law schools regarding the UBE. Dean Amy Wildermuth of the University of Pittsburgh School of Law is mindful of the UBE’s impact on her graduates’ job opportunities.

“There are certainly drawbacks and shortcomings to the UBE as the Pennsylvania Bar Examiners have wisely pointed out. The difficulty is that, with so many other states adopting it, we must begin to worry about whether we are disadvantaged by not adopting it,” she said.

Lauren Hartley, the Recruitment Coordinator in the Career Services Office of Dickinson Law, believes that “the fact that Pennsylvania does not use the UBE, while being surrounded by states that do, puts Pennsylvania at a competitive disadvantage and encourages graduates who are not committed to sitting for the PA bar or are undecided about where to practice to go sit for the UBE. At Penn State Law in particular, a higher and higher percentage of the student body is coming from out of state. In the long run, firms may have more difficulty attracting laterals from other states.”

Richard Gaffney, Jr., Director of Bar Studies at Duquesne University School of Law notes “whether the benefits of the UBE offset the negative financial impact vary by student. The majority of Duquesne graduates take only the Pennsylvania bar examination and do not plan to practice in other jurisdictions. For them, the potential benefit of admission to multiple jurisdictions based on their UBE score is not important, and the increase in application fees would be a net-negative. For a growing number of Duquesne graduates who are either required by their employer to obtain license in other jurisdictions (notably, West Virginia or New Jersey), or who want the flexibility to find employment in a different state, the UBE would provide a significant benefit and the additional application fees would be worth it.”

Robert Wible, Director of Academic Success and Bar Exam Services at the University of Pittsburgh School of Law believes there is a lot to like about the Pennsylvania Bar Exam. “The Pennsylvania Board of Law Examiners takes its mission of “…protecting all individuals seeking legal representation from unethical or incompetent lawyers” very seriously. My belief, absent any other consideration, is that to be minimally competent in the Commonwealth you should know our laws. There are significant differences in the laws of Pennsylvania – three degrees of murder, quirky operation of our co-tenancies, and unique Rules of Civil Procedure.” Mr. Wible also notes that the Pennsylvania essay exams are more forgiving than the UBE essays, which typically cover a single-subject, and therefore leave little wiggle room for an examinee. In contrast, each Pennsylvania essay question is balanced among several subjects, with no more than approximately 50% of any one question being dependent upon any single subject. Mr. Wible likes the fact that, “if a question tests Torts, PA Civil Procedure, and PA Evidence, and the examinee blanks on the particular rule of evidence, they can still obtain the majority of points for that particular essay.” While Mr. Wible appreciates the benefits of the UBE in terms of increased portability for graduates, he doesn’t believe that any of them outweigh the Board of Law Examiners’ charge to protect the quality of legal representation in the Commonwealth.

Additional pressing concerns for law school graduates (and law students) are the financial and emotional pressures of preparing for, and taking the bar exam, while managing their student loan debt. This is an issue of equal importance to law students and legal employers alike. The total cost of taking the Pennsylvania bar exam, if one’s application is timely filed, is $788. The cost of a commercial bar preparation courses is $2,200 – $3,800, bringing the total cost of preparing for and sitting for the Pennsylvania bar exam to $4,000. In addition to the above fixed costs, law students are advised to not work during the approximate 10 weeks of bar preparation and instead devote a minimum of 50-60 hours per week to their bar exam study. Personal financial obligations in the form of rent, food, car payments, and insurance all continue during this study period. There are bar exam loans available, but at higher interest rates than regular student loans. Anecdotally, many law students are rejected by lenders because, by that juncture in their legal education, students typically don’t have the creditworthiness on their own and their families are either unable or unwilling to co-sign for a bar exam loan. I feel my own anxiety increasing just by writing this paragraph; imagine how a law student feels grappling with these multiple issues while contemplating their future student loan repayment obligations and conducting their post graduate job search!

Law schools are continuing to innovate to provide a strong return on investment for their graduates, however student debt loans continue to be daunting. The following are the average law school debts reported by US News & World Report for regional 2016-2017 graduates: Duquesne Law ($103,633); Pitt Law ($97,239); Penn State-Main Campus ($93,406); Drexel ($91,744); Villanova ($87,786); Dickinson ($81,718); and Temple ($73,589). Such levels of debt impose a huge burden on graduates and also pose a challenge for the legal profession and the public that the profession serves. Many small law firms are unable to pay the salaries new attorneys need to manage their student loan debt, which can lead to attorney turnover and the loss of monies expended by law firms in training junior associates. Law students who would prefer to seek government or public interest positions may feel less able to accept such positions in light of their student loans.

I therefore encourage employers to consider how they might ease the burden of their newly hired junior level attorneys. Whether by offering to pay some or all of the $4,000 cost of preparing for the bar exam, or providing a stipend for living expenses while studying for the bar, such offers would go a long way in building employee loyalty while alleviating the significant financial burdens associated with sitting for the bar exam.