The Future of the Bar Exam: Q&A with Associate Professor Leanne Fuith

What are some of the concerns that have been raised about the bar exam?

The effectiveness of the bar exam in measuring attorney competence to practice law has long been the source of concern. In daily practice, attorneys need the knowledge, skills, and ability to understand their clients’ issues, consult relevant law, and assist clients and other parties in solving problems. The format of the bar exam does not fully reflect the realities of practice.

Critics have also raised concerns that the bar exam has served to gatekeep who can become a lawyer and that it works to exclude individuals along race, class, and gender lines. This is of particular concern in a profession that desperately needs to become more diverse and inclusive to ensure access to justice for our clients. The significant amounts of debt that law students incur while attending law school is also a major hurdle. For many, passing the bar exam is not just a requirement to fulfilling their dream to become a lawyer. It is also a requirement for their financial survival.

Most would agree that we need some type of assessment of new lawyers to protect the public and ensure the integrity of the legal profession. In fact, the American public still overwhelmingly supports the requirement that law school graduates pass a bar examination before being allowed to practice law.i The question is what should we evaluate for and how can we do it in a way that is both accurate and rigorous and accessible and inclusive? It is imperative that we find a better way of assessing attorney competence.

Changes to the bar exam were announced earlier this year. What were those about and will they solve the problem?

In January 2018, the National Conference of Bar Examiners convened a task force to evaluate whether the bar exam continues to test the knowledge, skills, and abilities required of lawyers in a rapidly changing legal profession. Earlier this year, after three years of study, the Board of Trustees of the National Conference of Bar Examiners approved the NCBE Testing Task Force’s recommendations for building a better bar exam.ii

The NCBE has estimated that the changes proposed by the Testing Task Force will take 4-5 years to implement. The changes are expected to include, among other things, drafting new exam questions that test both knowledge and skills in an integrated way, ensuring examination accessibility for all candidates including those with disabilities, analyzing and reviewing the exam format to ensure fairness for candidates of diverse backgrounds, and studying options for administering the exam in-person and online.iii

The NCBE’s proposed changes to the bar exam are a good place to start the discussion but the concerns about the bar exam are complicated and run deep. Change that will make a real difference will likely require much more.

How have states handled administering the bar exam during the COVID-19 pandemic?

The past year has been challenging in so many ways and the impact of the pandemic on our new law graduates seeking to sit for the bar exam has been absolutely crushing. Amidst a global health crisis that has forced us into our homes, isolated us from our communities, and caused us to daily confront increasing health risks for ourselves and our families, our new law graduates have also had to navigate preparing for the bar exam before they can enter the legal profession.

States have handled administering the bar exam differently and that has been challenging as well. States like Minnesota have administered the exam in-person taking as many precautions as possible to protect examinees. Other states have attempted to administer the bar exam online with mixed success and others have scheduled, rescheduled, deferred, or cancelled the bar exam. Change and uncertainty has been the only constant.

Notes: In a recent survey, 60% of Americans supported a supervised in-person bar exam with masks, social distancing, and compliance with all other local health guidelines during the COVID-19 pandemic.

Leanne Fuith is an Associate Professor at Mitchell Hamline School of Law and the Dean of the Career of Professional Development. She is also co-chair of the RCBA CLE Oversight Committee.