This page summarizes steps that jurisdictions have taken to explore or implement new methods of assessing minimum competence.
Current Status: The California State Bar's Board of Trustees has recommended that the California Supreme Court create a pilot Portfolio Bar Examination. The Court is expected to act on the recommendation in February 2024.
Background: The California Supreme Court and State Bar of California jointly established a Blue Ribbon Commission on the Future of the Bar Exam. The Commission was "charged with developing recommendations concerning whether and what changes to make to the California Bar Exam, and whether to adopt alternative or additional testing or tools to ensure minimum competence to practice law." The Commission began work during the second quarter of 2021 and submitted its final report to the State Bar Board of Trustees in May 2023.
The final report recommended that California continue to offer a written bar exam to assess minimum competence, but that the state develop its own exam rather than relying upon content develop by NCBE. The report also noted that the Commission had considered numerous other methods for assessing minimum competence, but could not agree on whether to recommend continued exploration of those methods.
The State Bar's Board of Trustees accepted the Commission's report in May 2023 and voted to transmit the recommendations about the written bar exam to the California Supreme Court. The Board, however, suggested that it would like to review a detailed proposal for an alternative means of assessing minimum competence. Former members of the Blue Ribbon Commission who had supported an alternative pathway convened as an informal working group to create such a proposal. The working group delivered its report, recommending a Portfolio Bar Exam rooted in postgraduate supervised practice, to the Board in September 2023. The Board posted the report for a 30-day comment period, which elicited more than 2,800 comments.
State Bar staff reviewed those comments and prepared a memorandum for the Board. The memo recommended that the Board forward a proposal for a pilot Portfolio Bar Examination to the California Supreme Court and, if the Court approves that proposal, that State Bar staff work with outside experts and representatives of the Committee of Bar Examiners to finalize requirements for the pilot. The memo also recommended including "an additional objective assessment component to the Portfolio Bar Examination of up to two performance tests."
On November 16, 2023, the Board of Trustees accepted the staff's recommendation. The Board's resolution is available here and package transmitted to the Court is here. The Court could consider the proposal as early as the third week of January, when it holds an administrative conference. If the Court does not consider the proposal then, it likely will do so at its February administrative conference.
The members of the working group also submitted a letter to the Supreme Court in which they urged the Court to approve the proposed pilot Portfolio Bar Exam without the inclusion of any timed and proctored performance tests. The addition of these tests, the working group explained, would complicate administration of the pilot and undermine key aspects of the proposed licensing path.
California already allows a select group of candidates to demonstrate their competence through supervised practice. After the California Supreme Court lowered the passing score for the state's written exam from 1440 through 1390, it offered provisional licenses to candidates who had failed the exam during the previous five years but met the new passing score during that time. Candidates who complete 300 hours of supervised practice using those licenses, and who obtain a positive recommendation from their supervisor(s), are eligible for admission to the bar without retaking the bar exam. The State Bar website includes more details about this Pathway Program.
Although the Pathway Program relies upon supervised practice to establish minimum competence, it targets a limited group of candidates who have already demonstrated proficiency on the written bar exam. As a result, it lacks the portfolio requirement and other features of the Portfolio Bar Exam described above.
A scholarly article written by Deborah Jones Merritt, Andrea Anne Curcio, and Eileen R. Kaufman analyzes the results of a survey administered to candidates and supervisors who participated in California's two provisional licensure programs, including the Pathway Program described above.
During the pandemic, the District of Columbia Court of Appeals (the highest court in that jurisdiction) granted an "emergency examination waiver" to 2019-2020 graduates of ABA-accredited law schools who met the conditions specified in the court's order. Those graduates were allowed to practice for three years under the supervision of a licensed DC attorney. At the end of that time, the graduates' licenses will mature into unrestricted ones.
The Georgia Supreme Court appointed a Lawyer Competency Task Force in March 2021. The Task Force published their report two years later. The Task Force endorsed continued use of a written bar exam, but also encouraged the Supreme Court to consider appointing a committee to explore creation of a "Georgia Scholar Program" modeled on New Hampshire's Daniel Webster Scholar Honors Program. An appendix to the Task Force's report outlines the possible contours of a Georgia Scholar Program but stops short of recommending adoption of the program. Although a committee within the Task Force recommended that the Supreme Court approve a pilot Georgia Scholar Program, the full Task Force only encouraged "further study" of this concept.
During the pandemic, the Massachusetts Supreme Judicial Court appointed a committee to consider changes to the state's licensing system. After meeting and conducting research, the committee suggested that the court consider both a curricular licensing path and one that would occur during postgraduate supervised practice. In May 2023, the court indicated that it was not enthusiastic about a postgraduate path but that it was open to considering a curricular one. Work continues on that possibility.
Current Status: The Minnesota Supreme Court is considering a recommendation from the Board of Law Examiners to create an "implementation committee" to create a curricular licensing path rooted in experiential education. The Court is also considering suggestions from several members of the public to authorize the implementation committee to consider both a curricular licensing path and a post-graduate path.
Background: In June 2021, the Minnesota Board of Law Examiners announced a comprehensive two-year study of the bar exam. The Board created three working groups to study (1) whether to adopt the NextGen bar exam as one pathway to licensure in Minnesota; (2) whether to create a curricular pathway to licensure; and (3) whether to create a pathway to licensure based on post-graduate supervised practice. The groups produced reports recommending all three options.
The Board published tentative recommendations, based on these reports, in November 2022. After a period of public comment, the Board published a set of final recommendations in March 2023 and invited further public comment. After reviewing those comments, the Board delivered a final report to the Minnesota Supreme Court on June 1, 2023, along with appendices incorporating all the working group reports and public comments.
The Minnesota Board's recommendations propose (1) adopting the NextGen exam for Minnesota; (2) participating in a standard-setting exercise to determine the cut score for that exam; and (3) creating an Implementation Committee "for the purpose of further exploring and developing an alternative assessment to the bar examination for adoption by the Court that could be completed while in law school." The Board expressed ongoing interest in a second alternative assessment that could be completed after law school, but deferred further consideration of that option while an Implementation Committee focuses on a curricular pathway.
The Minnesota Supreme Court invited public comment on the Board's proposal, with comments due by September 11, 2023. The written comments submitted to the Court are available on the Court's public docket under case number ADM10-8008. The Court also held a public hearing on the proposal on October 25, 2023.
Current Status: Two task forces are developing the design for a licensing system that would include a multiple-choice test of foundational knowledge, completion of several performance tests, and a short period of supervised practice. This system would apply to all candidates who have not previously been admitted to any bar.
Background: The Nevada Supreme Court established a Commission to Study the Administration of the Bar Exam and the Licensing of Attorneys in March 2022. The Commission delivered its report on March 30, 2023, and recommended that the Court: (1) Retain its character and fitness inquiries; (2) continue to require candidates to pass the MPRE; (3) require all candidates to demonstrate their foundational knowledge in core subjects; (4) require all candidates to pass a test consisting of exercises like those on the Multistate Performance Test; and (5) consider whether all candidates should demonstrate their competence through a period of supervised practice during law school or after graduation.
The Commission recommended that the Court appoint two task forces to explore recommendations (3) through (5). The first task force would develop plans for implementing both a test of foundational knowledge and one based on performance exercises. This task force would also consider whether some graduates could satisfy the foundational knowledge requirement by completing coursework at law schools certified by the Court as providing sufficient instruction in those foundational subjects. The second task force would consider whether supervised practice should be required before bar admission and, if so, how that requirement should be implemented.
The Nevada Supreme Court accepted the Commission's recommendations and appointed the two task forces described above. The task forces must make recommendations to the Court by April 1, 2024.
New Hampshire was the first state in modern times to develop an innovative method of assessing competence: the Daniel Webster Scholar Honors Program. Students in the program, which is housed at the University of New Hampshire Franklin Pierce School of Law, complete a rigorous program of experiential and doctrinal classes during their second and third years of law school. Through these classes they collect portfolios of work product that are reviewed by members of the New Hampshire Board of Bar Examiners. Students that the Board deems minimally competent are sworn into the New Hampshire bar the day before they graduate from law school. They do not need to take a written bar exam to demonstrate their competence.
IAALS (the Institute for the Advancement of the American Legal System) evaluated the Daniel Webster program several years after it was founded and concluded that program graduates performed more capably in practice than peers who had passed the written bar exam. "In focus groups," the researchers reported, "members of the profession and alumni said they believe that students who graduate from the program are a step ahead of new law school graduates." (p. 1) Equally impressive, "When evaluated based on standardized client interviews, students in the program outperformed lawyers who had been admitted to practice within the last two years." Id. "The only significant predictor of standardized client interview performance," finally, "was whether or not the interviewer participated in the Daniel Webster Scholar Honors Program. Neither LSAT scores nor class rank was significantly predictive of interview performance." Id.
In 2020 and 2021, the New York State Bar Association's Task Force on the New York Bar Examination issued three reports that raised serious concerns about the UBE and recommended a new, rigorous, New York based exam. The reports also recommended consideration of other pathways to licensure, including one based on a New York centric curriculum and another based on supervised practice. The final report called on the Court of Appeals to establish a working group to work with the NY Board of Law Examiners to develop the new test and to design the two proposed alternative pathways.
The Chief Judge appointed a Working Group, chaired by retired Court of Appeals Judge Howard Levine, that sought input on a number of questions. These included (1) whether New York should continue to rely on the UBE, (2) the best methods for formulating an exclusively New York Law Exam, and (3) potential alternative pathways to bar admission. A change in the leadership of the Court interrupted the Working Group's process, but the group had before it a proposal for a New York exam that de-emphasized rote learning and assessed important skills like legal research. The Task Force also had before it a proposal for a Lawyers' Justice Corps. The LJC is a supervised practice pathway for lawyers in public interest practice, designed to be an alternative form of admission as well as to address the access to justice crisis.
Current Status: The Oregon Supreme Court has approved a Supervised Practice Portfolio Exam that law school graduates may pursue in lieu of the UBE. The pathway will be in place for May 2024 graduates. The Licensure Pathway Development Committee continues work on a companion pathway that would allow licensure based on portfolios of work compiled while in law school.
Background: The Oregon Supreme Court created an "Alternatives to the Bar Exam Task Force" to consider new ways to assess lawyer competence. The Task Force issued a report in June 2021 that recommended two new assessment methods: one based on completion of an experiential education curriculum and the other rooted in postgraduate supervised practice. In both of these pathways, candidates would compile portfolios of work product that would be scored by bar examiners. These two pathways would provide alternatives to the bar exam: candidates could choose among three options to show their competence.
After a period of public comment, the Task Force issued a supplemental report offering more detail about the proposals. In January 2022, the Oregon Supreme Court approved the proposed pathways "in concept," and appointed a Licensure Pathway Development Committee to develop a regulatory framework for the two non-exam pathways. That Committee maintains a website with frequent updates about its work.
In March 2023, the Committee published proposed rules for the Supervised Practice Portfolio Examination (SPPE), a pathway to licensure based on postgraduate supervised practice. The Committee also published a set of explanatory notes and a letter offering an overview of the proposed pathway. The Committee sought public comments on its proposal; that comment period ended on May 12, 2023.
The Committee adjusted its proposal in light of the public comments and fowarded a final set of the proposed SPPE Rules and explanatory comments to the Board of Bar Examiners in August 2023. The Committee also composed a lengthy cover letter explaining the context for the proposal, the public comments received, and the Committee's response to the comments. The Board of Bar Examiners unanimously approved the proposed SPPE Rules and forwarded them to the Oregon Supreme Court. The Court requested minor modifications in the rule language after a September 2023 hearing, and the Committee provided language embodying those changes in early November 2023. The Court unanimously approved the amended rules on November 7, 2023. The Oregon Board of Bar Examiners will implement this new pathway to licensure by May 2024. The final rules governing the program are available here.
The Committee continues to work on the second pathway, the Oregon Experiential Portfolio Examination, and will publish a proposed set of rules when they are ready.
Meanwhile, Oregon has already implemented a supervised-practice pathway for a small group of candidates who failed the February 2022 bar exam. The exam venue lost heat during that exam, and the Supreme Court offered failing test-takers the opportunity to demonstrate their competence through supervised practice. That program, known as Oregon's "Provisional Licensing Program," began operation in late 2022. The program's format and rules served as a model for the more permenant SPPE that has been proposed, but the two programs differ in some important ways.
Oregon's website for the Provisional Licensing Program includes the rules governing the program, rubrics that supervisors and bar examiners use to score candidates' work, videos explaining the program, and other resources.
In November 2022, the South Dakota Supreme Court appointed a committee to assess the state's bar admissions process. The committee has been considering creation of new licensing paths that would allow candidates to choose among several options for demonstrating their minimum competence. Those options might include a specialized curricular pathway (such as New Hampshire's Daniel Webster Scholars Program) and/or a pathway rooted in postgraduate supervised practice. The committee is expected to issue its report in fall 2023, although any recommendations for change would have to be implemented through the Supreme Court's rulemaking process.
In 2020, the Utah Supreme Court created an emergency path to licensure for candidates who had registered to take the July 2020 bar exam. Rather than forcing candidates to take the bar exam during a pandemic, the Court allowed graduates of some schools to demonstrate their competence by completing 360 hours of supervised practice under a licensed attorney. The emergency pathway expired in December 2020, but the Court created a Bar Admissions Working Group to consider this question: “Is the current, single path to licensure the only, or the best, way to assure that those admitted to practice have the requisite skill to practice law?”
The Working Group completed its report in the summer of 2023 and presented a proposal for an alternative pathway to the Utah Supreme Court. The proposal draws heavily on the twelve building blocks of minimum competence described in the Building a Better Bar study. To demonstrate their possession of those twelve elements, candididates must (1) complete a selection of designated doctrinal and legal writing courses in law school; (2) pass the Multistate Professional Responsibility Exam; (3) pass a written exam consisting of a 3-hour performance test focused on a single client problem; (4) complete six credits of experiential work during law school; (5) complete 240 hours of postgraduate supervised practice that includes 50 hours of pro bono service, 40 hours of legal research, and 20 hours of client-facing work; (6) complete six hours of training in well-being; (7) attend a training session focused on self-directed learning; and (8) complete a survey reporting their experiences with the pathway.
The Working Group is sharing its recommendations with stakeholders in Utah and licensing experts nationally. The Group hopes for further action from the Supreme Court in spring 2024.
The Washington Supreme Court established the Washington Bar Licensure Task Force in November 2020 and charged the Task Force to “evaluate & assess the efficacy of the Washington state bar licensure requirements for licensing lawyers and whether the [WA State Supreme Court] should consider alternatives to the current licensure requirements, and to analyze those potential alternatives.” The Task Force delivered two reports to the Court on October 11, 2023.
In the first report, the Task Force makes seven recommendations related to the assessment of lawyering competence:
In the second report, the Task Force's Subcommittee on Ethics/Character Fitness recommends numerous changes to the state's process for determining a candidate's character and fitness. The report first recommends amending Washington State Court Admission and Practice Rules 21 and 24.1 as follows:
In addition, the report recommends:
The Task Force is seeking feedback on both reports. Comments may be submitted through firstname.lastname@example.org.