Uniform Bar Exam focuses on topics that are common nationwide

The bar exam that would-be Maryland attorneys sat for last month — and that future bar applicants will take — was different from those taken by their forebears.

Gone from the two-day test offered twice annually are essay questions related specifically to Maryland law and procedure. Maryland-specific questions are now asked separately, online, in a multiple-choice format with no writing involved; the Maryland-specific test can be retaken until a passing grade on the section is achieved.

Instead, the new, three-part Uniform Bar Examination, or UBE, tests applicants on legal topics common nationwide and includes a section on lawyerly skills.

Maryland’s move to the UBE, used by 34 states and the District of Columbia, was approved by the state’s top court last year and was first used in the test given to bar applicants on July 30 and 31.

“We’ll have to see whether (the UBE) is more challenging or not” than the old exam, said

Jonathan A. Azrael, chair of the Maryland State Board of Law Examiners.

The board said it expected to release the results of the July UBE on Nov. 1.

The UBE has the “big advantage” of enabling Maryland’s applicants to transfer their test scores to other states and jurisdictions that use the UBE, rather than having to take other states’ bar exams, said Azrael, an attorney who has chaired the board since 1995.

The UBE is coordinated and drafted by the Madison, Wisconsin-based National Conference of Bar Examiners. The national conference holds seminars to instruct state bar examiners on grading the UBE to ensure the member states are operating under the same scoring guidelines.

More rigorous grading

“It’s certainly a more rigorous grading process,” said Azrael, of Azrael Franz in Towson. “We must follow the guidelines consistently among ourselves and with graders in other states.”

The UBE’s three parts include a Multistate Performance Test, a Multistate Essay Exam and the Multistate Bar Exam, which was a staple of the former Maryland examination.

The performance test calls on test-takers to perform functions common to the practice of law, such as drafting a will, a contract provision, a settlement agreement, a memo to a supervising attorney, a letter to a client, a statement of facts or a closing argument, according to the national conference. Examinees compose the drafts based on a file of documents, including deposition and trial transcripts, police reports, contracts and medical reports.

The UBE’s essay section consists of six 30-minute questions that address business associations, civil procedure, conflict of law, constitutional law, the Uniform Commercial Code, criminal law, evidence, family law, real property, torts, trusts and estates and secured transactions, the conference states.

The multistate bar exam, the only section used in previous exams in Maryland, consists of 200 multiple-choice questions, only 175 of which are scored — but the examinee is not told which ones. The 175 scored questions are divided evenly over seven subjects: civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property and torts, according to the conference.

Despite Maryland’s move to the UBE, the basic skills asked of test-takers – spotting and analyzing legal issues – remain essentially unchanged, said Daniel M. Shemer, whose eponymously named bar preparation company in Baltimore has helped ready Maryland examinees since 1981.

Shemer said the only significant alteration to the test is that the UBE’s essays contain fewer issues and require deeper legal analysis than did the old Maryland-specific essay section. The old Maryland essays called for “knowledge a mile wide and (analysis) a couple of inches deep,” Shemer said, adding that the UBE’s call for more in-depth analysis is reflected in the practice questions his instructors give students.

“The change in the exam is not huge,” Shemer said.            “It’s not night and day; it’s barely noon to 2. It’s still an essay test. They’ve been taking essay tests their whole lives.”

Shemer, in a nod to the new exam, said he changed the name of his company within the past year from Shemer Bar Review to Shemer UBE Bar Review to reflect its updated mission.

Online component

The online Maryland Law Component must be taken by applicants within two years after being notified they have passed the UBE.

The Maryland Law Component is based on written outlines covering substantive distinctions of Maryland procedure and criminal law, evidence, family law, civil procedure, professional responsibility, torts and trusts and estates. For example, the outlines might explain that Maryland is among the handful of “contributory negligence” states that absolve personal injury defendants of liability if the plaintiffs’ negligence contributed at all to their injuries.

The outlines also cover Maryland rules governing attorney trust accounts and the handling of client funds and papers, and obligations to the Client Protection Fund and Disciplinary Fund, according to the State Board of Law Examiners.

Applicants have 90 minutes to complete the online, open-book test of 50 multiple-choice questions. If at first they don’t succeed, applicants can take the test over again until they get a passing grade.

“It’s not intended to be a hurdle,” Azrael, the board chair, said of the Maryland Law Component.

“It is intended to be an educational component to try to protect the public in feeling comfortable that the new Maryland lawyers … have a familiarity with the distinctions in Maryland law in important subjects,” he continued. “Maryland doesn’t have (Continuing Legal Education as a requirement), so this is somewhat akin to a CLE course.”

The new multiple-choice format eliminates the need for the Maryland board to draft essay questions for applicants. However, the examiners must develop the multiple-choice exam and select or create the outlines that form the basis for the Maryland Law Component.

“We are very much in charge of that and it has to be continuously monitored and updated,” Azrael said.

Maryland bar admission requires successful completion of the UBE, the MLC and a character review.

The fact that two years can pass between notification of UBE passage and completion of the MLC means bar admissions may occur on a more rolling basis than under the old system, in which the entire test was limited to two days in February or July and swearings-in were conducted primarily in June and December.

However, Azrael predicted that few, if any, applicants will wait long before taking the MLC after being notified that they passed the UBE.

“Anybody who passes the Uniform Bar Exam is going to be motivated to take the Maryland component,” Azrael said.

‘Portability’ of results

Last August, the Maryland Court of Appeals unanimously approved bringing the UBE to the state, with a supplement to the exam focused on Maryland law.

“The Uniform Bar Examination, along with the Maryland law component, will assure that applicants possess the knowledge and skills necessary to practice law in Maryland, plus afford those who pass the exam the portability of transferring those results to other jurisdictions that have also adopted the Uniform Bar Examination,” Court of Appeals Chief Judge Mary Ellen Barbera said in a statement at the time.

The deans of Maryland’s two law schools, who served on the Maryland Judiciary advisory panel that recommended the UBE’s adoption, continue to support its use.

Donald Tobin, dean of the University of Maryland Francis King Carey School of Law, said the move to a universal bar exam “recognizes that law is more national and global than just local.”

The bar exam’s focus is appropriately no longer on how much applicants know about Maryland law and procedure but on how well they spot the general areas of law — such as torts, constitutional law or evidence – and analyze the issues they raise, such as causation, strict scrutiny and admissibility, Tobin said.

“We have to move away from a very parochial view of law because that’s not how law is right now,” Tobin added. “The skills of being a lawyer are what they need to know.”

University of Baltimore School of Law Dean Ronald Weich praised the UBE for what he called “a test of analytical skills” that focuses on the practice of law rather than on the memorization of a state’s laws.

“The test will provide a more reliable assessment of an applicant’s ability to practice law effectively,” Weich said. “What good lawyers need to know is where to find the law, not memorize it two weeks before an exam.”