Responding to anecdotal evidence that new lawyers don’t understand the rules for practicing in New York courts, the state bar association is announcing Monday that it’s creating a task force to study whether the adoption of the Uniform Bar Exam is responsible.
Presiding Justice Alan Scheinkman of the Appellate Division, Second Department, and Eileen Millett, former co-chair of NYSBA’s committee on legal education and admission to the bar, will chair the study group.
“We don’t approach this from a point of a prejudgment,” Scheinkman said. ”We’re not certain there is a problem. We’re not certain there isn’t a problem. We’re trying to find out about it.”
What is clear is this: Nearly three years after the test debuted, some judges, lawyers and educators are bemoaning the impact. In meetings and lectures, judges are talking openly about the lack of knowledge possessed by lawyers appearing before them.
No one knows whether the perceived deficiencies are caused by the lack of rigor of the Uniform Bar Exam itself, deficiencies in the 50 multiple choice question open-book test on New York law that accompanies the multistate test, or the precipitous drop in the percentage of students studying New York practice.
At one time, 80 to 90 percent of students at some New York law schools would take a course in New York practice; some law schools say that number has declined to less than 20 percent.
Earlier this month during a lecture at Fordham School of Law, state Supreme Court Justice Barry Ostrager of the commercial division said he was shocked by the situation.
“To me, it is unfathomable that practitioners who plan to practice in New York would start their careers without the most basic knowledge of the rules that govern almost every aspect of practice in the New York state courts, he said.
“By contrast, courses on Federal Practice and Federal Jurisdiction are very popular in law school. But, a much higher percentage of the cases that New York practitioners handle are venued in New York Supreme Court, not federal court,” he said.
He said his law clerks receive half a dozen calls a day from lawyers asking for information that they should know or easily be able to find in the New York Civil Practice Law and Rules. These new lawyers don’t know, for instance, not to serve both a bill of particulars and a set of interrogatories on their adversaries, he said.
“If students are no longer taking NY practice, then we really have lost something of value,” said Millett, who added that knowledge of New York law is necessary for the state courts to remain a pre-eminent destination for settling international commercial transactions.
Millett, a partner at Phillips Nizer, added that the changing economics of the profession is also having an impact on the lack of preparation judges are encountering. With more students going to law school, the competition has intensified and some can’t find jobs in the kinds of firms that train beginning lawyers before sending them to court.
“We’ve had concerns right from the get-go,” said New York State Bar Association president Michael Miller. “The state bar had recommended that the UBE not be instituted as proposed and that there be a two-year study since it would be a historic departure.”
When the proposal to adopt the Uniform Bar Exam was made in 2014, the state bar expressed concern that the change might worsen the disparity between how students of different races performed. The association was also concerned right from the start about the impact of the switch on knowledge of New York law and professional practice.
“There are nuances in New York practice that are the difference between being ready and having to learn some pretty elementary things when you come out of law school,” he said.
St. John’s University School of Law Dean Michael Simons said that changing what you test has had a significant impact on what law school students study.
“Students want to pass the bar exam and they are rational consumers and it’s to be expected that students will arrange their academic program to best prepare themselves for the bar,” he said. “There’s no question there’s a relationship between what students will be asked to demonstrate on the licensing exam and what they’re going put their energy into in law school.”