Thursday, November 23, 2017

Is the Uniform Bar Exam an answer to the rural lawyer shortage?

Perhaps one of the largest barriers to solving the rural lawyer shortage is the lack of portability of a law license. While it is possible for someone to move from an urban part of their state to somewhere more rural, it is not currently possible for someone to move across state lines without having to go through the entire licensing process again. In states that are largely rural and lack large urban centers, such as Maine, New Hampshire or Vermont, this can be problematic. It is especially true for those three states because they are in close proximity to states, such as New York and Massachusetts, that have large urban centers. Is the UBE a possible tool to use in this fight?

Source: Pieper Bar Review
The Uniform Bar Exam is, as it sounds, a bar exam that is uniform among the states, pictured to the right, that have adopted it. It consists of three parts, the Multistate Bar Exam, Multistate Performance Test, and the Multistate Essay Examination. Despite the uniformity of the exam however, each jurisdiction formulates its own guidelines for passage and scores can vary from 260-280. Even if you fail in your own jurisdiction, you can still apply to transfer your score to a state where your score would constitute passing.

While the Uniform Bar Exam provides you with a transferable score that would, in theory, solve the conundrum described above, it is not without its flaws. While the UBE gives you a transferable score, there is a sunset provision on those scores that stops one from being able to transfer them after a certain point and this varies by jurisdiction. For example, Maine only allows you to transfer your score for 2 years after it was taken. Of course, Maine also has fairly generous requirements for reciprocity, requiring admission to any state bar and allowing someone to do so after practicing for three years. Its neighbor New Hampshire is more restrictive, requiring practice in five out of the last seven years.

However defaulting to reciprocity requirements and sunsetting UBE scores is dangerous, particularly in this market. These requirements, for example, would exclude people who have not been practicing but who may have obtained a passing score on the UBE and are licensed to practice law. It's not difficult to imagine a Boston area law graduate who, in a tough legal market, is unable to find employment. Let's imagine that he does not find a legal job but works enough to keep himself afloat while looking for something more permanent. If after 2 years, he reads this blog and realizes that he has an opportunity in rural Maine, he is shut out. If he's not practicing that he's irrelevant, even assuming that he has kept up with the CLE requirements of his jurisdiction and has kept himself abreast of legal matters.

Of course, out of luck lawyers are not the only ones affected by this. If a person decides to leave the legal profession to take a non-legal job, such as consulting, management, or any job where a law degree is helpful for advancement but isn't in the realm of "practicing law," they risk being shut out. Imagine a Boston lawyer who practices for a couple of years and then decides to go into consulting. After consulting for 5 years, he marries, has kids, and decides to move out to a more rural community. In the process, he decides to resume the practice of law. At this point, he faces multiple issues. First of all, his UBE score is no longer valid for transfer into any jurisdiction. Secondly, he hasn't practiced in so long that he is no longer eligible for admission by motion. Let's assume that he is in good standing in his jurisdiction and complies with his Continuing Legal Education (CLE) requirements so he has maintained his license and is knowledgeable about developments in the law.

To solve the rural lawyer shortage, we also have to solve the problem of maldistribution of lawyers. The fact that no jurisdiction allows for transfer of UBE scores after more than five years, with most allowing only 2-3, is problematic. It forces lawyers who took the bar in more urban jurisdictions to quickly assess their odds of success in their current jurisdiction and then make plans to move and transfer their scores. While 2-3 years is a sizable amount of time, it could result in situations where people are caught in the blackhole of having a score that is not valid for transfer but not enough experience to seek admission through other channels. People in this situation may benefit from moving to a rural community and setting up shop but they are effectively shut out from doing so. In an ideal world, a person with a UBE score, provided they have remained in good standing in their licensing jurisdiction, would be able to transfer their score into perpetuity. It is my opinion that not allowing this defeats the purpose of the UBE, which was to allow mobility between the states.

The issue of maldistribution continues to loom though and while the UBE is a tool, a lot still has to be done. The fact is, lawyers tend to congregate in cities, no matter what state they're in. As you may have read in my recent post, lawyers in Maine have tended to congregate in Cumberland County so even in predominantly rural states, the rural areas are still ignored. The questions that have to be asked include: Why would a Boston area lawyer move to Aroostook County, Maine if a lawyer from Portland wouldn't? Why would a lawyer from New York City move to Rutland, Vermont if he isn't already planning to Plattsburgh, New York? The UBE is a great tool to have because it makes states like Maine, New Hampshire, and Vermont more competitive and able to attract out of state talent but it alone does not solve the rural lawyer shortage. It is just one more tool in the ever expanding tool box that will be needed to repair the crumbling house that is the rural legal market.

2 comments:

Gregor Renk said...
This comment has been removed by the author.
Gregor Renk said...

That’s a brilliant share. I am also going to take MBE but unfortunately not able to find any good test prep material I want to focus on previous MBE Practice Questions but not finding that anywhere online. Do you have any suggestions for best resources?