NCBE’s Testing Task Force and the Bar Exam of the Future

In the United States, the authority to regulate the legal profession belongs to individual jurisdictions; each U.S. state or territory sets its own rules and makes its own decisions about legal licensure. For  licensure examinations, most jurisdictions use one or more of the bar exam components produced by the National Conference of Bar Examiners (NCBE), a nonprofit organization based in Madison, Wisconsin. Thirty-six jurisdictions have adopted NCBE’s Uniform Bar Exam, which is comprised of three NCBE exam components: the Multistate Bar Examination (MBE), Multistate Performance Test (MPT), and Multistate Essay Examination (MEE).  The UBE is a uniformly administered, graded, and scored bar examination that results in a portable score.

At NCBE, we are proud of the high quality, validity, and reliability of our exams, which help jurisdictions protect the public by ensuring that only competent candidates are licensed to practice law.  The legal profession in the U.S. is changing rapidly, and we realize the importance of assuring the bar exam reflects those changes. To that end, in 2018 NCBE appointed a Testing Task Force charged with undertaking a three-year study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing profession.

The Task Force’s study is currently in the second of three phases. In the first phase, extensive feedback was solicited in a series of listening sessions with stakeholders from across the profession—bar admission administrators, legal educators, and practicing attorneys and judges. (A report summarizing these sessions is available on the Task Force’s website.) Currently, the Task Force is conducting a nationwide practice analysis survey of lawyers as phase two of the process. This survey will provide valuable and comprehensive information about the knowledge, skills, abilities, and other characteristics that new lawyers must have to practice effectively and ethically. The conclusions drawn from the first two phases of the study will  help inform the study’s final phase, which will consider options for designing the bar exam of the future.

The work being done by the Testing Task Force is important and timely; we are proud of this study and excited to learn all we can from it. Please visit the NCBE Testing Task Force website and sign up to receive updates as this historic study progresses.

Article provided by ICLR member, Judith A. Gundersen, President, National Conference of Bar Examiners

Encouraging the Development of ‘Low Bono’ Law Practices

For decades, the discussion about access to justice has primarily focused on the ability of low–income individuals to obtain free representation by lawyers. Lawyer representation is the “gold star” of the legal profession and advocates of legal services for the poor have fought difficult battles to ensure the most disadvantaged in our country have access to these professionals. As a result, legal aid programs and pro bono services that assist the most economically disadvantaged in our country are now common in our legal service delivery system.

Despite those important efforts, only 50% of those eligible for free legal services actually receive them. Traditional access to justice platforms, while critical for offering legal assistance to a segment of the poor, have not been funded at levels that allow them to serve all those who need and qualify for their services. In lieu of lawyers, members of the legal profession have created self–help tools and substitutes for attorneys in the form of general advice hotlines, online document automation programs, and self–help law centers. If the profession correlates justice with lawyer representation, then the majority of average income Americans and a significant segment of the poor, are without it. In 2011 the United States ranked 50th out of 66 developed nations in providing accessibility to its civil justice system to its citizens.

In order to address the unmet legal needs of individuals in our country, the legal profession must advance an affordable legal services agenda that includes lawyers who provide competent legal services at reduced or “low bono” rates. Increased funding to help the poor and efforts to provide greater accessibility through the use of technology are efforts that can help bridge our justice gap. However, such efforts are limited in their scope. To make additional gains into providing more access to law, we need to devote attention to a segment of our society that currently receives no support and can potentially also benefit the near poor who go in and out of poverty. According to the research of an expert on U.S. poverty, “nearly 40 percent of Americans between the ages of 25 and 60 will experience at least one year below the official poverty line during that period and 54 percent will spend a year in poverty or near poverty (below 150 percent of the poverty line).” These figures reveal that a larger segment of the population requires a legal system that understands the fluidity of poverty and their financial instability. A lower–cost legal service delivery system must exist for those priced out of free services who need lawyers to get them back into a more stable financial reality.

Law practices that offer services at low bono rates offer a lawyer alternative to the more than 81.4 million households that earned less than the median income of $51,017 in 2012. Many of these individuals make less than $25 per hour but make too much to qualify for free legal services. Like the poor, Americans of average means need lawyers to advise them about legal issues that arise in their everyday lives but many of them cannot afford lawyers who charge hourly rates that exceed $300 per hour. This chapter explores the need to build the framework that encourages the development of low bono law practices.

Part I helps us understand low bono and why it is a necessary component of a broader legal service delivery system. Part II discusses the challenges that lawyers face in building and maintaining low bono practices. It addresses the financial challenges of running low bono practices and identifies the necessary components for developing viable low bono business plans. Part III outlines the framework the legal profession can and should build to support low bono law practices. It addresses the assumption that an affordable legal fee necessitates a lower quality service. It calls law schools, bar associations and courts to devote resources to build the necessary infrastructure for the delivery of legal services to average means Americans. The chapter concludes with a brief reflection of why lawyers may choose to build a career as a low bono lawyer.

Download full paper

Citation: Herrera, Luz E., Encouraging the Development of ‘Low Bono’ Law Practices (May 2014). University of Maryland Law Journal of Race, Religion, Gender & Class, Vol. 14, No. 1, pp. 1-49, 2014.

Training Lawyer-Entrepreneurs

The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Large law firms are laying-off lawyers, bringing in smaller first year associate classes, hiring more contract and experienced lateral attorneys. Government entities and public interest organizations have suffered furloughs, and hiring freezes, and are relying more on volunteers than on new employees to get the work done. To complicate matters, the baby boomer generation of lawyers is retiring later and contributing to a lack of new job opportunities. As a result, a large number of recent law graduates are unemployed, under-employed, or are working in settings that do not require a bar license. James G. Leipold, executive director of the National Association for Law Placement (NALP), reported that “members of the law school graduating classes of 2009 and 2010 have faced the worst entry-level legal employment market in 50 years and perhaps ever, and the market for the classes of 2011 and those that will follow is likely forever changed.” The latest figures released by 198 of the 201 law schools accredited by the American Bar Association (ABA) confirm Leipold’s prediction. Only 55% of law students graduating in 2011 reported having full-time, long-term jobs requiring a law degree, at nine months after graduation. The change in the job market masks a long standing but rarely recognized reality. Law jobs, particularly for new attorneys, have never been abundant.

Historically, most attorneys in the United States have created their own jobs by establishing solo and small law firms. The latest ABA market research indicates that about three-fourths of all attorneys work in private practice. Of those attorneys, almost half identify as solo practitioners and approximately 14% work in small law offices with five or less lawyers. ABA market research found that in 2005, only 16% of attorneys in private practice work in law firms of more than 100 attorneys. In fact, the number of lawyers in private practice working in law firms of more than 50 attorneys has never accounted for even one-fifth of the private bar. Attorney demographics confirm that the majority of lawyers in private practice are self-employed. Regardless of the large number of lawyers in solo practice, few law graduates enter the profession understanding the opportunities and challenges of starting their own law firms.

The reality of self-employment has not been well-received by many new graduates. Fewer opportunities in the job market have spawned blogs, editorials, articles and letters from and about angry and greatly disappointed new lawyers who viewed law school as their ticket to a six-figure salary upon graduation, but instead found poor job prospects and student debt equivalent to a home mortgage. A group of law graduates initiated lawsuits against their law schools alleging, among other things, misrepresentation and fraud. Although the particular claims of the lawsuits vary, all of them accuse law schools of reporting exaggerated employment statistics in order to lure prospective students into law schools. As a result of the public dissatisfaction of recent law graduates and the high cost of legal education, the number of applications to ABA accredited law schools declined in 2011. In December 2012, the Law School Admissions Council reported an additional decline of 22%.

The future of the legal profession is uncertain. Some predict that large law firms are unlikely to rebound to pre-recession hiring. It is also not anticipated that government, academic, and public interest sectors will represent more than a small fraction of available law jobs. The most consistent and largest employment sector for lawyers will continue to be solo practice. If the largest segment of our law students will eventually work for themselves, then law schools should provide direction about what it means to be a self-employed lawyer. Like their predecessors, the self-employed lawyer of the twenty-first century must learn how to think like a lawyer and find a niche within the business of law. However, to make a living in an increasingly complex and competitive legal market, self-employed lawyers must also become lawyer-entrepreneurs.

This Article does not offer a comprehensive understanding of the study of entrepreneurship. Nor does it engage the discussion of the tension between professionalism standards and personal gain. Instead, this piece focuses on what law schools can do to help the thousands of self-employed lawyers who must embrace entrepreneurial models to survive in a competitive market. Part I of this Article considers how technology and the need for more affordable legal services require the transformation of solo attorneys into lawyer-entrepreneurs. It explores how technology and client preferences are impacting the practice of law for self-employed lawyers that address personal legal services. Part II summarizes the findings of several empirical studies that help us understand what it means to be a self-employed lawyer. It considers the challenges and opportunities of lawyers as entrepreneurs. Part III posits that Millennial generation lawyers are good candidates to become lawyer-entrepreneurs. It contemplates a future where Millennial lawyer-entrepreneurs, if properly supported, can exploit technology to increase access to justice and achieve their personal goals. Part IV documents a sample of existing and emerging efforts by law schools to train self-employed lawyers. This section focuses specifically on the emergence of networks supporting solo and small firm lawyers, attorney incubator programs and post-graduate residencies. Part V offers recommendations for law schools committed to advancing the training of lawyer-entrepreneurs. The perspective offered here is informed by my experience launching a solo practice in 2002, my involvement in a national conversation about the lack of affordable legal services, as a mentor to lawyers starting their law practices, and is supported by empirical research.

Download full paper

Citation: Herrera, Luz E., Training Lawyer-Entrepreneurs (August 2012). Denver University Law Review, Vol. 89, No. 4, 2012.

Proposal to eliminate standardised test requirement for US law schools

The requirement that American Bar Association-approved law schools require applicants to submit a standardised law school admissions test as part of their application could soon become optional.

The Standards Review Committee of the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar advanced a proposal to eliminate the requirement that law schools order applicants to submit a standardised admission test score as part of their application.

This discussion of the current ABA requirement that law school applications include a “valid and reliable test” has been growing in recent years.  For more than fifty years, the Law School Admission Test, or LSAT, has been the only test used by schools.

It is likely that law schools will continue to require an admissions test score from applicants, even if the formal requirement that they do so is removed. However, removing the requirement, proponents of the change argue, will open opportunities for law schools to innovate with respect to putting together an entering class that serves well the programme and missions of schools.

Read more about this proposal