Supreme Court
TEXAS SUPREME COURT advisory
Contact: Stephen M. Sheppard
St. Mary's University School of Law
210.436.3684 or email
Wednesday, May 16, 2018
TASK FORCE EXAMINING TEXAS BAR EXAM
RECOMMENDS THE UNIFORM BAR EXAM FOR STATE
But it rejects ‘diploma privilege’ practice admissions among tweaks
In a report concluding nearly two years' work, the Texas Supreme Court’s task force to study the state bar examination has recommended that Texas employ the Uniform Bar Examination used by more than half the United States but not adopt a “diploma privilege” that would allow Texas law-school graduates to practice law without taking a bar exam.
The Task Force on the Texas Bar Examination, led by St. Mary’s Law Dean Stephen M. Sheppard, urged the Court to adopt the Uniform Bar Examination for its utility for law graduates who might want to practice in several jurisdictions without retaking bar exams in each. “Examinees who score well enough on the UBE become eligible for admission by examination to the bar in every jurisdiction in which the UBE has been adopted,” the report said.
“The UBE lessens the burden on new law graduates to spend time and money preparing for bar exams in every state in which they hope to practice.”
The Task Force unanimously recommended that Texas should not adopt a full diploma privilege for any law school or the graduates of any law school, but added a caveat: Texas should encourage Texas law schools to experiment to develop alternative licensing programs.
The Court created the Task Force in June 2016, charging it with exploring answers to seven questions amid across-the-board declines in bar-exam passage rates in Texas and across the country. In addition to Sheppard, the Task Force included four other Texas law school deans, one law professor, an appeals court chief justice, two attorneys and representatives from the state Board of Law Examiners. Justice Jeff Brown was the Court’s liaison.
Among its recommendations:
¶ Adopting the Uniform Bar Exam, supplemented by a Texas-law component, in place of the current Texas bar exam and continued use of the Multistate Bar Exam either as part of the Uniform Bar Exam or as currently administered. Twenty-nine states, the District of Columbia and the U.S. Virgin Islands have adopted the uniform exam, the Task Force noted.
¶ If the Uniform Bar Exam is adopted, the Texas essays will be replaced by the Multistate Essay Exam. But the Task Force believes that the uniform exam should be supplemented by a separate Texas-law component, consisting of a Texas Law Exam to be administered online following completion of, or in conjunction with, an online Texas law course.
¶ Although some Task Force members believe independent assessment of the Board of Law Examiners’ for bar-exams scoring methods should be assessed by an expert in a field other than psychometrics, at present no internal evidence demonstrates that the exam is not performing as intended according to the rules the Court adopted. If the current Texas bar exam is retained without change, the Task Force recommends that the current scoring methodology should also be continued.
¶ If the Uniform Bar Exam is adopted, the equivalent passing score should be required (270). But if the uniform exam is not adopted, and the current Texas bar exam is retained without change, the minimum passing score should remain 675. In either case, the Court should consider requiring a standard-setting study to determine whether the passing score is set appropriately to ascertain a standard of minimum competence to practice law.
¶ If the Uniform Bar Exam is adopted, the number of essays would be reduced from 12 to six by adoption of the Multistate Essay Examination. If the uniform examination is not adopted, the Task Force recommends reducing essays from 12 to six.
In response to concerns about the Multistate Bar Exam, a principal Texas bar-exam component, and its possible bearing on recent bar-passage rates, the Task Force noted it proposed an independent study of Texas bar-exam scores. The Task Force discussed “the significant drop (in Texas and nationwide) of bar passage rates in recent years” and a perceived volatility in passing rates between February and July exams. “No consensus could be formed, however, regarding either the appropriate methodology or the scope of relevant data necessary to conduct a study that would be helpful to the work of the Task Force,” the report said.
Issues with availability of relevant data from Texas law schools, the National Conference of Bar Examiners – the group behind the Uniform Bar Exam – and the Board of Law Examiners also remained unresolved, the report said. “As a result,” it continued, “the proposed independent study was not carried out.”