Illinois is among the states now using all three test components. But according to Neil K. Quinn, president of the Illinois Board of Admissions to the Bar, his state is not on board with the uniform test at the moment. "We don't have enough information," he said, but officials are "continuing to examine" the idea.
The District of Columbia also is hesitating. Mark S. Carlin, an NCBE trustee and chairman of the Committee on Admissions of the District of Columbia Court of Appeals, said that a stumbling block in the District is how to reconcile the bulk, three-component score that the uniform test will provide with D.C.'s practice of considering just the multiple-choice test score for admitting out-of-District applicants.
Under the plan for a uniform test, each state could still set its own minimum pass score, or "cut score," but the score would represent the applicant's performance on all three components. Currently, the scoring scales applied to tests and the weights given to different subjects or types of questions vary across jurisdictions. The uniform test would eliminate those differences. States still could require some state law component for admission to the bar, but, under the uniform system, the state portion would not figure into the portable uniform exam score and would not present a significant hindrance to licensing in a state.
Moving toward one test will create notable changes in legal education and the practice of law, said Jerome Hafter, chair of the American Bar Association Section of Legal Education and Admissions to the Bar. The greatest benefit, he said, will be the portability of scores for new graduates. In recent years, more jurisdictions have admitted out-of-state attorneys to practice by a motion to a state court; a portable score is part of a trend toward the nationalization -- if not globalization -- of legal practice, Hafter said. He personally supports the uniform test, although the ABA legal education section has no official position on the issue.
It is important for states to be able set their own pass scores, Hafter said, but he expects that most eventually will settle on the same score, the equivalent of 135 out of 200 on the Multistate Bar Exam.
As more states move toward one test, Hafter expects a normalization of law school curriculum, to focus on the core subjects covered on the test. Law schools would not feel the pressure to cover "niche" subjects such as workers' compensation or oil and gas law, since those subjects would not be included.
Eliminating those niche subjects from a bar exam is exactly why Pennsylvania is not adopting the uniform test, said Mark Dows, executive director of the Pennsylvania Board of Law Examiners. Dows' board has not ruled out a uniform test in the future; it already uses the NCBE's multiple-choice test, he said. But for now, Pennsylvania wants to retain control over its exam, including the essay portion, which covers 15 state-law subjects. Dows worries that his state would lack input on a uniform test. The Pennsylvania Board of Law Examiners has an annual budget of about $2 million.
"We don't have any say with the [uniform] test questions," Dows said. At present, "we have control of what we write."
Neither Dows nor other state bar exam officials interviewed for this article criticized the quality of the NCBE's tests, but some echoed Dows' concerns that ceding control of the state portion of their bar exams would harm the profession and the public. The concern is that attorneys need to demonstrate an understanding of state law, which is critical to local practices.
A related concern is that too much power in attorney licensing would rest with the NCBE, a private corporation and, as Dows put it, a "vendor." The organization sells its tests to the states. "Attorneys are officers of the court, and some think that it should be handled by a government agency instead of a private company," said one bar examiner, who requested anonymity in order to speak candidly.
The nonprofit NCBE reported $9.8 million in revenue and $47.7 million in assets for the tax year that ended in June 2009. Moeser's annual salary was $277,179. In 2008, the organization reported $13.1 million in total revenue and $52.1 million in assets. Moeser's salary that year was $265,020. Moeser attributed the decline in revenue from 2008 to 2009 to lower returns on investments.
The NCBE board of trustees comprises 12 volunteer members, all of whom are active or former bar examiners from various states. Attorneys, judges and law professors, usually from respectable but not top-tier schools, serve on test-drafting committees and generally receive $6,000 each year for their work. In February 2008, the NCBE moved into new headquarters, a $10 million building in Madison, Wis.
The impetus for establishing the uniform exam is to improve the profession, Moeser said. "The [Uniform Bar Exam] was never conceived as a revenue producer. It is viewed as a good idea, the time for which has finally arrived in a world that has seen multijurisdictional practice grow on the national and international level," she said. "If anything, candidates will take fewer of our tests because they will have score portability."
Moeser was unaware of concern about handing over power to a private company. "It is unclear to me how the fact that attorneys are officers of the court relates to the need to have licensing decisions made via the fairest high-quality tests available," she said. "Every profession deserves this, and all that the UBE does is bring law into line with other professions in having a uniform licensing test." Indeed, medicine and accounting have standardized licensing.
The NCBE has not determined how much the uniform test will cost. The price per test-taker of the three components, which require two days of testing, will be $96 in 2011, Moeser said. The NCBE sells about 69,000 each year at $52 each.
"We expect no increase just because states use the three tests as components of the UBE."
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