Testing Knowledge of Local Law: What Are UBE Jurisdictions Doing? Part Two

This article originally appeared in The Bar Examiner print edition, Winter 2019-2020 (Vol. 88, No. 4), pp 15–21.

Featuring: Course of Study on South Carolina Law, Massachusetts Law Component, and Virgin Islands Law Component

In this issue, we bring you the second part of a section on UBE jurisdiction-specific components—­separate tests, courses, or some combination of the two that jurisdictions administering the Uniform Bar Examination may decide to administer to assess candidate knowledge of law that is specific to the jurisdiction.

Part One in the Fall 2019 issue featured an overview of the 13 components that had been developed to date (those in Ohio and Texas have been announced but are still under development) and an in-depth look at those in North Carolina, Maryland, and Tennessee.

Continue reading for a snapshot of component types by jurisdiction and to learn about the jurisdiction-­specific components in South Carolina, Massachusetts, and the Virgin Islands.

UBE jurisdictions that administer a jurisdiction-specific law component are indicated in blue; those that do not are indicated in orange.

UBE Jurisdiction-Specific Components by Type

The Course of Study on South Carolina Law

By Steve McCrae

South Carolina adopted the Uniform Bar Examination in 2016; its first UBE administration was in February 2017.

The Supreme Court of South Carolina adopted the UBE in January 2016. At the same time, the Court decided to institute a state-specific law component to accompany the UBE. Within days of the Court’s decision, the Chief Justice appointed 5 of the 20 members of the South Carolina Board of Law Examiners to serve on a task force to study and make recommendations to the Court regarding the form the state law component should take. The goal of the Court was to provide examinees with an overview of the major ways that South Carolina law differs from regional, national, or federal practice.

Development of the Course of Study on South Carolina Law

The task force worked intensively for the next six weeks, studying the seven state-specific law components administered at that time in other UBE jurisdictions and obtaining input from stakeholders, including the judiciary, law school deans, law practitioners, and the executive director of the South Carolina Bar Association and the director of its Continuing Legal Education Division.

The task force submitted its report to the Supreme Court in March 2016, recommending the following:

• Instead of a written exam, which would complicate the administration of the UBE, the Court, with the assistance of the Board, should develop video modules on South Carolina substantive law that should
  • include embedded short quizzes consisting of 2–3 multiple-choice, true/false, or yes/no questions to be answered during or directly after viewing the video modules for built-in assurance that the participant has both listened to and understood the topics covered in the videos;
  • total a minimum of 6.5 hours in length (a full day of credit for a South Carolina CLE program, although no CLE credit would be awarded), with no minimum length assigned to any one module; and
  • allow flexibility for the participant to either watch the modules in one sitting or stop and resume the modules over several sittings.
• The South Carolina component should take the place of the then-required Bridge the Gap program administered by the South Carolina Bar Association to all newly admitted bar members. Bridge the Gap was a one-day intensive course that focused on practical nuts-and-bolts skills. It was designed to assist both the 3L law student in transition from law school to the practice of law and the lawyer new to the practice of law in South Carolina. The South Carolina component should be more comprehensive than Bridge the Gap and should cover the following topics: South Carolina Civil Procedure, with Evidence and Alternative Dispute Resolution included; Torts (including Workers’ Compensation and Conflict of Laws); Real Property; Family Law; Trusts/Estates and Wills; Insurance; Ethics/Professional Responsibility/Trust Accounts/Advertising; Criminal Procedure/Law in South Carolina; Corporations/Agency/Partnership; and Uniform Commercial Code Article 2.
• The Board of Law Examiners should continue to grade the written portion of the UBE and should assist the Court in administering the state-specific component, periodically viewing and recommending updates to the videos.
• The Board should seek outlines from practitioners and South Carolina law school instructors in the topic areas and determine what should be covered in the video modules.
• The Court should determine the timing for participation in the state-specific component.

By April 2016, the Court had accepted all of the task force’s recommendations and had assigned the task force the responsibility for implementing the recommendations and overseeing the production of the video modules in time for February 2017 UBE examinees to complete the state-specific component prior to the Court’s deadline. The task force then sought additional input from the South Carolina Bar Association CLE Division and the deans of South Carolina’s two law schools.

The task force decided that each video module should have two presenters, ideally one practitioner and one law school professor, who would be interactive in their presentations. Task force members spent much time and effort selecting the appropriate presenters for each topic and asked them to submit written outlines of their presentations to the task force for approval or suggested edits. Once the video modules were recorded, they were reviewed by all members of the Board and the Court, and some were re-recorded to incorporate suggested revisions or to shorten their length.

By the end of March 2017, the Course of Study on South Carolina Law was ready for release to examinees who had taken the February 2017 UBE.

Administration of the Course of Study on South Carolina Law

The Course of Study on South Carolina Law is a requirement for anyone who wishes to practice law in South Carolina, whether they are taking the exam in South Carolina or transferring their score from another state. The South Carolina Appellate Court Rules dictate that a candidate for admission must submit proof of completion of the Course at least 10 days prior to the admission ceremony in which he or she wishes to participate.

In order to register for the Course, candidates first submit their applications for admission to the South Carolina Office of Bar Admissions; once the applications are accepted, their contact information is provided to the South Carolina Bar, which creates secure accounts for candidates to register for the Course and obtain access to the video modules. Modules expire within 60 days and must be “re-purchased” (for no cost) if not watched within that time period. Additionally, candidates must complete the entire program on the same device on which they started the program.

Because completion of the Course is not required prior to the administration of the UBE, examinees may wait until after the UBE to complete the Course to decrease the likelihood of confusing the general law tested by the UBE and the South Carolina–specific law addressed in the Course.

The Course consists of 11 video modules, each 30–50 minutes in length, on major areas of South Carolina law, with three multiple-­choice or true/false questions (randomly selected from a larger pool of questions) to be answered at the conclusion of each module. Written materials do not accompany the videos. Candidates have three opportunities to answer all three questions correctly in order to move to the next module; failure to do so requires the candidate to view the module again and re-take a new set of questions.

Upon completion of each module, candidates are required to download a certificate of completion, and upon successful completion of the entire Course, they must notify the South Carolina Bar by the deadline provided to them for completing the Course; the South Carolina Bar then reports completion to the South Carolina Office of Bar Admissions.

Our Experience

The Board reviews and updates the Course as needed prior to each administration of the UBE. The general consensus among the Court and members of the South Carolina Bar Association is that the Course of Study on South Carolina Law has successfully met its objectives, as well as the goals established by the Court, by familiarizing prospective members of the Bar with points of law that are unique to South Carolina.

The Massachusetts Law Component

By Geoffrey R. Bok

Massachusetts adopted the Uniform Bar Examination in 2016; its first UBE administration was in July 2018.

Prior to Massachusetts’s first administration of the UBE in July 2018, the Massachusetts Bar Examination consisted of the Multistate Bar Examination and a Massachusetts law and procedure essay examination. In July 2016, the Justices of the Massachusetts Supreme Judicial Court endorsed the recommendations of its Committee to Examine the Uniform Bar Examination to replace the current Massachusetts Bar Examination with the UBE and to develop an additional requirement for Massachusetts bar admission concerning Massachusetts law and procedure effective with the July 2018 bar examination.

It is important to note that the Massachusetts Law Component (MLC) was not intended to create a hurdle to admission or to evaluate competence to practice law. Rather, it was intended to ensure that newly admitted attorneys have the knowledge of and information on essential highlights and key distinctions of Massachusetts law and procedure necessary to begin Massachusetts practice successfully.

Development of the Massachusetts Law Component

In August 2016, an MLC Working Group was established to determine the form and substantive content of the MLC. In February 2017, the Justices endorsed the Group’s recommendation that the MLC be an untimed, online, open-book multiple-choice test on essential highlights and key distinctions of Massachusetts law and procedure, based on written materials posted online.

The following month, the Justices approved the Group’s further recommendations on the nine substantive topics to be covered by the MLC. The topics were Access to Justice, Anti-discrimination, Business Organizations, Civil Procedure, Consumer Protection, Criminal Law and Procedure, Domestic Relations, Evidence, and Wills and Estates. (Effective in January 2020, Legal Ethics and the Massachusetts Rules of Professional Conduct is the tenth substantive topic tested by the MLC.)

The Access to Justice substantive topic, which was already a topic on the Massachusetts essay examination, covers Massachusetts law and procedure in the following areas, with a focus on the laws applicable to people of limited means: landlord-­tenant (including evictions, affirmative defenses and counterclaims, and fee-shifting statutes), foreclosures, divorce (including child custody, support, and visitation), termination of parental rights, domestic abuse, guardianship, conservatorship, consumer matters (including debt collection, predatory lending, and unfair or deceptive practices), health care proxies, powers of attorney, advance directives, due process doctrines (related to fair hearings, civil commitment, and civil right to counsel), nonprofit organization representation, ethical rules, and limited assistance representation.

The Justices also approved the recommendation to establish a new Supreme Judicial Court standing committee—the Bar Admissions Curriculum Committee—to prepare (and periodically update) both the written materials on each substantive topic and the test questions based on these materials.

In March 2017, the Supreme Judicial Court asked the deans of all the Massachusetts law schools to submit nominations from their faculty to join the Committee as experts in one or more of the nine substantive topics covered by the MLC. Based on the resulting nominations, the Committee was appointed in May 2017 and consisted of 19 law school professors, as well as the executive director of the Board of Bar Examiners, a senior attorney at the Supreme Judicial Court, and the former chair of the Board of Bar Examiners.

Each law professor member of the Bar Admissions Curriculum Committee was assigned an MLC substantive topic and spent the next six to eight months working in groups of two to four drafting their topic’s legal outlines as well as at least 50 test questions for that topic. The three non–law professor members of the Committee then edited and revised the draft outlines and test questions for clarity and uniformity. The resulting outlines were comprehensive, clear, and up-to-date summaries of distinctions and highlights of Massachusetts law and procedure that every new member of the Massachusetts bar should understand.

The MLC outlines were posted online in June 2018, and all pending applicants to the Massachusetts bar were notified by email that they must pass the MLC in order to be admitted. These included applicants signed up for the July 2018 UBE in Massachusetts and applicants for admission on motion or by transferred UBE score whose applications had been filed during or after March 2018.

Administration of the Massachusetts Law Component

Each applicant for Massachusetts bar admission is provided access to the MLC approximately one week after filing a petition for admission with the Court and is required to successfully complete the MLC as a condition of admission. The Bar Admissions Curriculum Committee designed the MLC to be administered online as 50 multiple-­choice test questions randomly selected from the pool of potential test questions, with a requirement to correctly answer at least 40 of the questions (i.e., 80 percent) in order to pass. Any applicant who does not pass the MLC is able to take it again (with a completely new set of questions) until a passing score is achieved. The MLC testing software is programmed to ensure that an applicant taking the exam multiple times never sees any question more than once.

Although the MLC test is not timed, any applicant who does not finish a particular test administration within four days of beginning it will have their test canceled and will have to take it again with new questions. Except for applicants who procrastinate unnecessarily, admissions are not delayed by the MLC, as applicants have many months to take and pass it.

Our Experience

Three final points about the MLC are noteworthy. First, the design and implementation of the MLC has not been controversial within Massachusetts because all the key stakeholders in the Massachusetts bar admissions process (the local law schools, the Supreme Judicial Court, and the Board of Bar Examiners) were involved during the entire process. This mirrors a similar successful involvement of all stakeholders in the earlier committee that recommended that Massachusetts adopt the UBE as its bar examination.

Next, because the intent of the MLC is to be educational (rather than serve as a screening device), while every applicant must successfully complete the MLC as a condition of admission, to date no applicant has been denied admission to the Massachusetts bar due only to a failure to pass the MLC.

Finally, the substantive outlines for the MLC are posted online and publicly available at no cost and have proven to be a valuable and free legal resource for all Massachusetts attorneys, especially newly admitted attorneys.

The Virgin Islands Law Component

By Hon. Geoffrey W. Barnard and Marie E. ThomasGriffith

The Virgin Islands adopted the Uniform Bar Examination in 2017; its first UBE administration was in July 2017.

In July 2016, the Virgin Islands began administering the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT) as part of its bar examination, discontinuing its Local Law Essay Examination, an exam covering 12 subject areas of local law and produced by the members of the Committee of Bar Examiners of the Supreme Court of the Virgin Islands. This change to the Virgin Islands Bar Examination reflected a desire by the Court to replace the locally developed Local Law Essay Examination with the professionally developed written components of the UBE—and also served as a pilot test for eventual UBE adoption.

During the period when the evaluation of the UBE was taking place, the Committee and Court considered other UBE jurisdictions’ experiences with testing knowledge of local law in deciding whether and how to test candidates’ knowledge of Virgin Islands law.

Development of the Virgin Islands Law Component

The Committee considered several approaches for testing knowledge of Virgin Islands law, ranging from a discretionary online Continuing Legal Education component prior to admission to a course in local law; it also considered having no local law component at all. After some study and reflection, the Court opined that there should indeed be a local law component, that it should take the form of a test rather than a course, and that it should not be discretionary but a requirement for admission. Ultimately, the Committee recommended, and the Court adopted, the Virgin Islands Law Component (VILC): an open-book, 90-minute online test consisting of 50 multiple-choice questions, for which candidates must achieve a 70% passing score.

Upon adoption of the VILC by the Court, five subcommittees were formed within the Committee of Bar Examiners to execute the various steps necessary to prepare and implement the VILC: Review, Outline, Drafting, Precedential, and Audit. To begin the process, the Review Subcommittee reviewed the 12 subject areas historically tested on the Local Law Essay Examination portion of the Virgin Islands Bar Examination to determine the areas of law that involve issues unique to practitioners in the Virgin Islands. It determined that five of those subject areas do not have uniquely local issues of law as the prevailing weight of authority, leaving seven subject areas for which it decided candidates should demonstrate knowledge of Virgin Islands law distinctions.

After the subject areas were approved by the Court, the Outline and Drafting Subcommittees undertook preparation of the outline and associated questions. The resulting outline covered the following seven areas of law: Virgin Islands Government and Constitutional Law, Legal Profession, Virgin Islands Practice, Administrative Law, Business Associations (Corporations, Limited Liability, and Partnerships), Domestic Relations, and Wills. We needed approximately 100 questions to create the first draft of the test. Upon the completion of the question-drafting process, the Precedential Subcommittee reviewed the 75 questions prepared by the Outline Subcommittee for relevance and consistency with the Supreme Court of the Virgin Islands jurisprudence. The Audit Subcommittee then reviewed the format of the outline and questions and was able to expand the number of questions from 75 to the desired 100 by recommending the reformatting and adjusting of the initial questions drafted.

Administration of the Virgin Islands Law Component

The VILC is offered at four scheduled times throughout the year. Applicants must receive a Notice of Registration Eligibility from the Office of Bar Admissions following their application for admission to the Virgin Islands Bar before they are able to register and sit for the VILC. Although they may sit for the VILC at any time after filing their application, applicants must register during the specified time period for the testing session they choose by electronically filing a letter of intent. Outline materials are available on the Court’s website to assist applicants in their preparation to take the VILC.

Applicants are notified by email prior to the date of the VILC to download the exam file needed to take the VILC. A password is released to applicants on exam day 15 minutes before the start of the VILC testing session; applicants use the password to open the exam file and begin the exam. During the exam, applicants are allowed access to the outline materials on the Court’s website. Backward navigation to return to already-­completed questions is not allowed during the exam. The exam file closes at the 90-minute conclusion mark, at which time applicants are prompted to upload the exam file.

The VILC is a requirement for all applicants seeking admission to the Virgin Islands Bar—whether by examination, by UBE score transfer, or on motion. Applicants who fail the VILC must register to retake it at a future administration. There is no limit on the number of times an applicant may retake the VILC.

Our Experience

We are thoroughly pleased with the VILC. Applicants routinely perform well on the test, and the outline has the added benefit of being useful as a tool of reference post-­admission. Each subcommittee routinely convenes to review the VILC and to supplement, modify, and update the outline as needed. Through implementation of the VILC, we have successfully achieved our goal of ensuring that new lawyers in the Virgin Islands are exposed to and have knowledge of law that is unique to the Virgin Islands.

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