Sitting for the bar exam may soon be trickier for the thousands of foreign-trained attorneys who take the test each year.
The New York Court of Appeals in April adopted stricter requirements for master of laws (LL.M.) programs, which help foreign lawyers gain eligibility to take the bar. The new rules focus primarily on the content of LL.M. programs, which many foreign attorneys use as an entry point into the domestic legal market.
At the same time, the American Bar Association's Section of Legal Education and Admissions to the Bar has proposed specific curriculum requirements for LL.M. programs geared toward foreign-trained lawyers. Individual states that adopt the proposed model rule would let graduates of those programs sit for their bar exams. That may result in an expansion of states admitting foreign attorneys, since few states beyond New York and California currently allow the LL.M.-to-bar exam path.
If approved, the ABA initiative would represent a significant policy shift. For decades, LL.M. programs have been left largely unregulated -- the ABA demands only that they not detract from a law school's J.D. program. The New York and ABA rules would impose detailed curriculum guidelines and credit-hour requirements, although neither would bestow formal accreditation on any LL.M. program.
"We've seen an increase over the past 10 years in the number of foreign attorneys sitting for the bar, and we see ourselves as performing a consumer protection role," said Margaret Wood, the attorney who oversees professional matters for the New York Court of Appeals, the state's high court. "Even though the bar is a test intended to determine legal competency, the court still wants to ensure that foreign lawyers who pass are adequately prepared to practice law in New York."
The changes are of keen interest to law school administrators. Law schools have been rapidly expanding LL.M. offerings to draw more students and tuition money, and the number of LL.M. degrees conferred by ABA-approved law schools grew by 65 percent between 1999 and 2009.
"We've been following the proposed changes quite closely," said Nan Hunter, associate dean for graduate programs at Georgetown University Law Center. "I think the requirements increasing the number of credit hours and the subjects students must take will probably make the option of taking the New York bar less appealing to our students."
OPENING A DOOR
On the other hand, the ABA proposal could prompt states that don't allow foreign-trained attorneys to sit for their bar exams to rethink that policy, said Stephen Presser, who oversees domestic LL.M. programs at Northwestern University School of Law. That school's regular LL.M. program enrolls about 80 foreign-trained attorneys each year, more than half of whom sit for the bar in New York.
"It sounds to me like students would be able to take the bar in other states, which is great for us," Presser said. "But I think the curriculum requirements would piss off a lot of our students who want to take more advanced courses like corporate finance" rather than the introductory courses that the ABA would require.
Wood stressed that the New York Court of Appeals was motivated by a desire to ensure better preparation for foreign-trained attorneys and to protect consumers of legal services. The ABA, on the other hand, hopes to assist state court judges who have struggled to develop a comprehensive policy regarding the admission of foreign attorneys, said Hulett "Bucky" Askew, top administrator in the ABA's Section of Legal Education and Admissions to the Bar.
The Conference of Chief Judges in 2007 passed a resolution asking the ABA to develop a program to "certify the quality of legal education offered by universities in other common-law countries." States set their own requirements for admission to practice, but the states' chief justices asked for more guidance and uniformity.
In response, the ABA formed a committee on international legal education, which developed the LL.M. proposal. "It would be a departure for us, and a departure for law schools," Askew said. "The whole idea is to make sure [foreign] students have a good grounding in American law and ethics."
Low bar-passage rates among foreign-trained attorneys had raised red flags for regulators. Nearly 6,000 foreign-trained attorneys took bar exams in the United States last year, according the National Conference of Bar Examiners -- the vast majority, 4,596, in New York and another 724 in California. Their passage rate was 31 percent, significantly lower than the 74 percent among graduates of ABA-accredited law schools. Legal educators attributed that showing to language challenges, a lack of background in common-law systems and the difficulty of the New York and California exams relative to other states'.
New York has the most foreign-trained exam takers, in part because its rules are among the most liberal. Foreign-trained attorneys can take the test if they had completed 20 credit hours of coursework at a U.S. law school. An LL.M. program or certificate program could meet that criterion.
The New York rules, which went into effect on May 18, make several key changes:
• Bar takers must complete an LL.M. program with a minimum 24 credit hours during no fewer than two semesters of 13 weeks each. Coursework must be completed within two years. Certificate programs no longer count.
• The LL.M. program cannot be completed exclusively during a summer term and must be completed in the United States. Online or correspondence courses do not qualify.
• Students must take at least two credit hours on the history of the American legal profession; at least two credit hours in legal research and writing; and at least two credit hours on constitutional law, civil procedure or another course designed to introduce students to the U.S. legal system. They may not take more than four credit hours in a clinical course.
The new rules are in effect, but some changes, including the 24-credit-hour requirement and the specific courses required, won't be implemented until the 2012-13 academic year.
The ABA's proposal is similar to the New York rules, but goes a step further. Foreign students in certified LL.M. programs would have to take a minimum of 26 credit hours with a course load similar to the typical 1L curriculum: constitutional law, civil procedure, the history of the U.S. legal system, legal writing and research. They would have to take most courses during the regular school year and must be taught by full-time or emeritus faculty. The programs could not be done overseas. Law schools would have to publicize their LL.M. students' bar-passage rates.
The proposal would apply only to LL.M. programs intended for foreign-trained attorneys, not the specialized programs geared toward graduates of U.S. law schools. The ABA would certify LL.M. programs that meet those criteria. States that adopt the proposed model rule would allow those graduates to take their bar exams. The proposal could result in more foreign-trained attorneys taking the bar somewhere in the United States, though Askew said that is unlikely.
"The numbers of foreign lawyers taking the bar might not go up, but the distribution of where they are taking it may change," Askew said.
Of course, the LL.M. question is part of a larger dilemma for the ABA -- whether to evaluate foreign law schools and allow graduates of institutions that meet basic requirements to practice in the United States. "This was a difficult debate," said Dennis Lynch, a professor at the University of Miami School of Law and chair of the ABA Legal Education Section's committee on international legal education. "There was some push to accredit LL.M. programs, but to accredit programs only for foreign attorneys was something we didn't want to get into."
The 26-credit-hour requirement proved quite controversial, Lynch said. State supreme court judges and bar examiners generally wanted a higher requirement, while legal educators to wanted to match New York's 24-credit-hour minimum. The committee settled in the middle. The required publication of bar-passage rates was another topic of hot debate among committee members, Lynch said.
The ABA is seeking feedback on the proposal, which would have to win final approval by the House of Delegates. That is unlikely to happen before February 2012, Askew said. Law schools have yet to offer much reaction to the proposal.
Presser said he was still grappling with what the changes could mean for Northwestern, which runs various LL.M. programs for foreign lawyers both at its Chicago law campus and overseas.
"We already have in place many of the things that New York is requiring," he said. "What's going to get particularly interesting is what will happen with our executive programs in various locations around the world, and our executive program that takes place over the summer. We may have to make clear that those students won't be able to sit for the bar. The effect, I think, is going to be strong."
A slight majority of the 200 foreign students in Georgetown's LL.M. program never sit for a bar exam in the United States, Hunter said -- they merely want the credential to take back to their home countries. In fact, most foreign students are primarily interested in advanced, specialized courses relevant to their particular practice, Hunter said. "Many of the foreign students I have surveyed said they don't want to spend a year taking basic U.S. law courses," she said. "That said, we're going to have to look at our course offerings to make sure they satisfy the new requirements."
Opening the door for foreign-trained attorneys to take the bar exam in additional states could raise questions from other excluded groups, said Erica Moeser, president of the National Conference of Bar Examiners. Graduates of unaccredited law schools, correspondence law schools, online law schools and those who "read law" cannot take the bar exam in most states.
"It will take a nanosecond for someone who went to an unaccredited law school in the U.S. to say, 'Hey, what about me?'" Moeser said. "I don't think all the aspects of this have been thoroughly explored."