January 2017 • Volume 105 • Number 1 • Page 14
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ISBA Board, Assembly recommend adoption of the Uniform Bar Exam
The ISBA has approved a committee recommendation that the Illinois Supreme Court adopt the UBE, which is used by 25 jurisdictions, including Missouri and Iowa.
ISBA President Vincent Cornelius tasked the ISBA Legal Education, Admission and Competence Committee with reviewing the Uniform Bar Exam ("UBE") and making a recommendation as to whether Illinois should adopt it. After several months of study, which included reviewing written and oral comments from members of the legal community, the Committee recommended that the Illinois Supreme Court adopt the UBE. See https://www.isba.org/sites/default/files/committees/2016-10-07%20ISBA%20LEAC%20Final%20UBE%20Report.pdf. The Committee's report and recommendations were approved by the ISBA Board of Governors on October 7 and by the ISBA Assembly on December 10.
The UBE has been adopted in 25 jurisdictions, including the District of Columbia. It is a three-part examination. It consists of the Multistate Bar Examination ("MBE"), which is a 200 question multiple-choice exam; the Multistate Essay Examination ("MEE"), which includes six 30-minute essay questions; and the Multistate Performance Test ("MPT"), which consists of two 90-minute performance essays that test a candidate's practice-readiness. The candidate's UBE score is portable to other jurisdictions - as long as it satisfies the jurisdiction's passing score.
Illinois's current passing score of 266 (increasing to 268 in 2017) would not change unless the Illinois Supreme Court elects to do so. A candidate who took the UBE in the District of Columbia would still need to meet or exceed Illinois' passing score to be admitted based on their UBE results.
The Committee found that adopting the UBE would have several benefits such as creating a more flexible job market, lowering the cost of bar admission, and enhancing the exam's focus on ensuring that candidates are practice-ready. The UBE also allows states to adopt their own state-specific requirements for admission, allowing Illinois to ensure that candidates are knowledgeable about Illinois law and procedure.
A focus on practice-readiness
Daniel Thies of Sidley Austin LLP is a member of the Committee. He says that after considering the various objections to adopting the UBE, the Committee ultimately concluded they weren't persuasive.
For example, one concern was that the UBE would create a job drain, sending talented lawyers from Illinois to other UBE jurisdictions. According to Thies, a previous ISBA task force on law school debt had found a geographic and practice area shortage of attorneys, particularly in rural Illinois and in areas like tax and ERISA, among others. The Committee found that the UBE might help alleviate this shortage, allowing attorneys from adjacent states like Iowa and Missouri to fill those gaps.
Thies says that the Committee had to consider the purpose of the bar exam in its analysis. It concluded that the exam is designed to ensure that lawyers meet a certain level of competence to practice. It is not a protectionist measure designed to prevent out-of-state lawyers from practicing in Illinois.
The Committee also compared the UBE to the existing Illinois Bar Exam. The current exam is very similar to the UBE - its only difference is that one MPT section is removed to allow for the administration of the Illinois Essay Exam ("IEE"), which consists of three 30-minute Illinois-specific essays. The Final Report notes that the IEE is only one-eighth of the test. A candidate could score zero points on the IEE and still pass the bar exam. "Under the current system, nothing guarantees that candidates are knowledgeable about Illinois-specific law." See Final Report at p. 2.
The committee found that removing the IEE would put more focus on practice-readiness via the addition of an additional MPT section. What's more, Illinois would be able to adopt its own, more rigorous state-specific requirements for admission in addition to the UBE. This would help ensure that each candidate has exposure to, and knowledge of, Illinois law and procedure.
One objection to the adoption of the UBE that the Committee was unable to fully address was that it may have a negative impact on minority candidates. The Final Report notes that "current data suggests that minority students perform disproportionately worse on the bar exam as it currently exists." See Final Report at p. 23. "Little data currently exists about the impact of adopting the UBE on minority passing rates." Id.
The Committee recommended that Illinois collect more data on the subject after adopting the UBE. Factors to be studied would be 1) bar passage rates by race, ethnicity, and gender; 2) performance by candidate credentials such as LSAT scores, law school GPA, and other indicators; and 3) statistics related to first-time takers versus repeated attempts.