Co-chairing the UBE Committee: A Labor of Love

This article originally appeared in The Bar Examiner print edition, September 2016 (Vol. 85, No. 3), pp 24–26.

By Gregory G. Murphy and Rebecca S. Thiem

When we were asked to write a short essay for the Bar Examiner with our observations and reflections on the Uniform Bar Examination (UBE), we jumped at the chance. As opposed to composing a difficult brief for a client in a tough spot, writing an essay on the UBE, one of our favorite subjects, would be easy. We have chaired or co-chaired NCBE’s Special Committee on the Uniform Bar Examination (the “UBE Committee”) at the pleasure of succeeding chairs of the NCBE Board of Trustees for the last decade—with Becky serving as the committee’s first chair when it was formed in 2006, and Greg joining as co-chair the following year—and it has been a labor of love.

With the longtime acceptance of the Multistate Bar Examination (MBE) as the anchor to bar examinations across the country and the ever-widening adoption of the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT), NCBE President Erica Moeser in consultation with other NCBE leadership proposed the concept of the UBE—bringing momentum to and putting into concrete terms an idea that had once been viewed as radical. Many jurisdictions were already employing all three components of the proposed UBE (the MBE, MEE, and MPT), and the obvious question arose: If applicants are taking essentially the same battery of tests examining them on the same knowledge and skills, what public protection purpose is truly served by requiring them to retake the same examination in order to be admitted in another jurisdiction, assuming that minimum competence is demonstrated by their performance on the MBE, MEE, and MPT? A bar examination is intended to provide a measure of protection to the public, not to raise an unreasonable barrier to entry into the profession or to protect those already admitted against competition.

The early years of UBE development were devoted largely to raising the flag of the UBE to see if the bar admissions community across the country would cheer. The flag was first hoisted at two meetings in 2009 for jurisdictions interested in discussing and moving forward with the UBE, followed by three regional conferences around the country in 2010–2011. While no votes were taken, it was apparent that there was enough support to move forward. It also became apparent that in bar examining as in other things, “all politics is local.” As a result, the regional conferences fell away, to be replaced by individual visits to jurisdictions interested in adopting the UBE.

Some jurisdiction had to be first. In a delicious irony, Missouri, the “Show Me State,” stepped forward before any other and adopted the UBE in 2010. Missouri also led the way in developing a separate state-specific component, an option available to all UBE jurisdictions that wish to assess candidate knowledge of state-specific law prior to admission. Its Missouri Educational Component Test, an open-book, online, multiple-choice test, ensures that newly admitted lawyers are aware of features of Missouri law that the bench and bar thought important for Missouri lawyers to know. As Judge Zel Fischer of the Missouri Supreme Court put it, the idea is to make newly licensed lawyers in Missouri aware of significant distinctions in Missouri law to help them avoid “backing into a buzz saw.” What a great idea, and what a practical way to help protect the public!

While the first innovator is obviously critical, a movement will never go anywhere without the first follower, who is every bit as critical to the success of the movement as the innovator. North Dakota joined later the same year, and it decided that no separate state-specific component was needed. Washington and Alabama were the next jurisdictions to adopt the UBE, with Washington establishing its Washington Law Component for its first UBE administration in 2013, and Alabama, which was the third jurisdiction after Missouri and North Dakota to administer the UBE in 2011, later developing its online Course on Alabama Law.1 These decisions by the jurisdictions regarding whether or not to require a state-specific component demonstrate an aspect of the UBE that had often been emphasized by NCBE—that jurisdictions would retain much important control of the bar admissions process. The federal system survives.

After Alabama, the UBE spread steadily in 2011–2012 to states primarily in the West, including Greg’s home state of Montana in 2012. Frankly, we feared that the well-known western culture of independence might stymie the UBE’s spread in that region. We were gratified to see our fear easily allayed.

Missouri’s idea about a state-specific component of some kind found favor in other jurisdictions, such as Arizona, which developed its online Course on Arizona Law, and Montana, which created the Montana Law Seminar. Variations on these themes developed in other jurisdictions and are covered in detail elsewhere in this publication.2 Suffice it to say that as chairs of the UBE Committee, we came to appreciate even more how the UBE could be a catalyst for better serving the public by prompting the participation of lawyers and members of the legal academy in the creation of these state-specific components.

It was not lost on anyone that the first states to adopt the UBE were states with large geographic areas and relatively smaller populations. Indeed, the relatively few antagonists of the UBE would sometimes be heard to say, “See, the UBE is only for smaller jurisdictions.” That argument fell when New York adopted the UBE in 2015. As the old saw goes, “That was a game changer.” Then−Chief Judge Jonathan Lippman of the New York Court of Appeals had appointed an Advisory Committee chaired by Associate Judge Jenny Rivera to conduct a thorough study of the UBE and to make a recommendation to the Court regarding a proposal to adopt the UBE. After an exhaustive process, including a number of hearings on the record, the Advisory Committee recommended adoption of the UBE, and New York came aboard. New York would not have seen the light if the chair of the New York Board of Law Examiners, Diane Bosse, had not become convinced that the UBE is the right thing for the public and for applicants.

When New York adopted the UBE, everyone in bar examining stood up and took notice. It came as no surprise to us that states near New York soon joined. (We should note that New Hampshire preceded New York with its UBE adoption in 2013, making it the first UBE state in New England.) Vermont followed, then New Jersey, Connecticut, and—most recently, in July 2016—Massachusetts.

Endorsements of the UBE flowed from the Law Student and Young Lawyers Divisions of the American Bar Association, and eventually from the ABA House of Delegates itself, which adopted a resolution in early 2016 urging jurisdictions to adopt the UBE.3 The Conference of Chief Justices adopted a similar resolution at about the same time urging jurisdictions to consider adopting the UBE.4 The merits of the UBE had clearly become widely apparent. As we write this, 25 jurisdictions have adopted the UBE, and we have good reason to believe that others will soon follow.

The composition of the UBE Committee, whose members are appointed each year by the chair of the NCBE Board of Trustees, has changed over time. Originally, the committee was composed of representatives from jurisdictions that might be interested in the UBE, and it focused on spreading the good word. As the UBE gained greater acceptance, the committee became more focused on addressing issues of policy and implementation that would inevitably arise over time. A primary example was the question of pre-release regrading of the MEE and MPT components of the examination (a decision that was left to the jurisdictions to set their own policies). We were heartened to learn that the jurisdictions that had adopted the UBE had much confidence in the judgment of sister jurisdictions; comity is alive and well among bar examiners.

As would prove to be the case with later-adopting jurisdictions, much of the impetus for the adoption of the UBE came from forward-thinking members of Courts who served as either chief justices or liaisons to boards of bar examiners, and from influential bar admission administrators. Margaret Corneille, director of the Minnesota State Board of Law Examiners, and David Ewert, assistant director for admissions for the Iowa Board of Law Examiners, are examples of the latter who deserve special mention. And no observation on the success of the UBE would be complete if we did not also acknowledge the inestimable contributions of Chief Justice Rebecca White Berch (now retired) of the Arizona Supreme Court.

We find it unnecessary now to sell the UBE. The examination sells itself. To be sure, as part of its services to jurisdictions, NCBE often answers requests for assistance in considering the UBE by sending Erica Moeser, NCBE Chief Operating Officer Kellie Early, or NCBE Director of Test Operations Judy Gundersen to discuss the UBE on a jurisdiction-by-jurisdiction basis, and the UBE receives wonderful support from advocates like Daniel Johnson, chair of the Alabama Board of Bar Examiners, who readily discusses the development of the Course on Alabama Law. But it is the high quality of the UBE’s components, which undergo thorough and rigorous test development processes no single jurisdiction has the resources to afford, coupled with the advantage to applicants of the portability of the scores they earn, that makes the case for the UBE. As co-chairs of the UBE Committee, we find ourselves simply answering questions from time to time from interested justices and bar examiners, and helping to manage the policies and rules governing use of the UBE. We are fortunate to have been involved in this improvement of the bar admissions process in the United States, and we thank the chairs of the NCBE Board of Trustees who have demonstrated faith in us by appointing us to co-chair the UBE Committee.

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