A Tale of Two (Bar Exam) Sittings The UBE and Reciprocity, 0718 SCBJ, SC Lawyer, July 2018, #42
| Author | Amy S. Flanary-Smith, Judge |
| Position | Vol. 30 Issue 1 Pg. 42 |
Amy S. Flanary-Smith, Judge
South Carolina's administration of the Uniform Bar Examination (UBE) beginning with the February 2017 bar exam reflected the state bar's acknowledgement of a multi-jurisdictional future. South Carolina bar examinees now acquire a portable UBE score that can be submitted to any UBE jurisdiction as part of an applicant's request for admission.1Law students no longer must choose a single jurisdiction to which to seek admission upon graduation. Graduates of the University of South Carolina School of Law and Charleston School of Law who sit for South Carolina's bar exam may use their UBE scores for admission to South Carolina and any of the 30 other UBE jurisdictions without need for additional bar exam sittings.
While adoption of the UBE facilitates the next generation of South Carolina lawyers entering the multi-jurisdictional future, the change had an additional, perhaps unforeseen, consequence: the South Carolina bar now has two distinct groups of licensed attorneys, one with robust cross-jurisdictional opportunities and one with very few such options. Moreover, adoption of the UBE has crystallized a philosophical inconsistency between the bar's admissions standards and Rule 5.5's prohibition of the unauthorized practice of law.
The UBE in general
On January 21, 2016, South Carolina joined a majority of states when the South Carolina Supreme Court announced it would utilize the Uniform Bar Exam (UBE) in granting admission to the bar beginning in 2017.2The UBE is a "uniformly administered, graded, and scored bar exam"[3]designed to test "knowledge of general principles of law, legal analysis and reasoning, factual analysis, and communication skills to determine readiness to enter legal practice in any jurisdiction."4The two-day test has three parts: the Multistate Performance Test (MPT), the Multistate Essay Examination (MEE) and the Multistate Bar Examination (MBE).5
Similar to examinees taking the LSAT or the GRE, the UBE test-taker receives an exam score that is a numeric value rather than simply a "pass" or "fail" notification.6The test-taker can then request the National Conference of Bar Examiners (NCBE) send his or her score to any of the UBE jurisdictions as part of the application process for admission to those states' bars. UBE scores are accepted generally for two to three years after a testing date; the precise length of life for a score varies by state.7NCBE score transfer and payment of a transfer fee8are the applicant's first steps to jurisdictional admission.9Adoption of the UBE did not change South Carolina's character and fitness, professional responsibility or academic credential requirements, \ which have governed bar admission for decades.
How UBE adoption benefits students and new lawyers
UBE proponents have identified three significant benefits to law students: (1) the UBE increases consistency in subjects tested on the bar exam; (2) the UBE allows an applicant that may have failed in one jurisdiction to nonetheless seek admission to another jurisdiction that has a lower score requirement; and (3) the UBE reduces both the actual and opportunity costs of taking examinations in multiple jurisdictions.10South Carolina's current law students have 31 potential employment markets immediately upon graduation—rather than just one, as was the case with the prior bar exam. A law student is free to tailor her program of study to match a practice area that is more prevalent in another UBE jurisdiction without a state-specific bar examination penalizing this career plan. South Carolina law schools can recruit students based on academic offerings and quality of education without need to justify practice opportunities limited to only one state.11
South Carolina consciously intended to place its bar at the "vanguard of evolving standards and norms which reflect the reality of modern law practice" while maintaining robust local control over bar admissions criteria.12Evolving standards necessarily require reevaluation of progress, though, and the connectivity of modem communication means that "a balkanized approach to the regulation of the legal profession, including particularly the restrictions imposed by individual states on the free movement of lawyers across the nation in the rendering of services to their clients, is no longer rational or workable."13The intersection of the UBE with Rule 5.5 in South Carolina epitomizes the difficulty.
UBEs and reciprocity14]
Adopting the UBE is not equivalent to granting reciprocity (sometimes called comity or admission on motion) to lawyers licensed in other jurisdictions. Indeed, UBE admission and reciprocal admission co-exist as parallel paths to a multi-jurisdictional practice in many states. However, South Carolina's unique decision to adopt the UBE but deny reciprocity to all out-of-state lawyers produces inequitable results for South Carolina's own attorneys.
South Carolina has long maintained significant barriers to entry for out-of-state attorneys seeking to practice in South Carolina.15South Carolina,16along with 12 other states or territories, allows no admission by motion to out-of-state attorneys.17Among UBE states, though, South Carolina stands alone in taking this hard line position of refusing all reciprocity18As a result of the closed nature of the South Carolina bar, the 26 states and territories that offer reciprocal reciprocity (that is, "if you let our lawyers in, we will let your lawyers in") are closed to South Carolina lawyers.
However, the UBE has altered the playing field for a subset of South Carolina lawyers—specifically for the newly licensed attorneys who sat for the UBE—who might seek admission in the reciprocal reciprocity jurisdictions. Nineteen of the 26 reciprocal reciprocity jurisdictions have adopted the UBE, so those 1919are now open to new graduates taking South Carolina's current bar exam. Thus, new graduates may be fully admitted in 19 jurisdictions that remain closed to South Carolina lawyers who were licensed prior to 2017. As such, the UBE provides significant career flexibility to new lawyers that cannot be obtained by seasoned South Carolina attorneys because of current rules.20
South Carolina lawyers are able to be admitted by motion, though, in some jurisdictions. Most states have a practice requirement for admission on motion—several years of active, sanction-free experience must be had by the comity-seeker—that would be a requirement likely met only by experienced attorneys.21Seventeen jurisdictions would allow an upstanding experienced South Carolina attorney to join their bars by comity: D.C., Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, North Dakota, Ohio, Tennessee, Texas, Vermont, Washington and Wisconsin. Of these 17, almost two-thirds are also UBE jurisdictions,22meaning the experienced lawyer and the new admittee have equal opportunity to be admitted into the jurisdiction. There are six states that the seasoned attorney can join by comity that are likely unavailable to a newly-licensed UBE taker: Illinois, Indiana, Michigan, Ohio, Texas and Wisconsin. For those keeping score, that is 19 states available to the newly-licensed attorney; six available to the seasoned attorney but not the new graduate; and 11 available equally to both groups. Thus, due to South Carolina's persistent no reciprocity stance, South Carolina lawyers who are brand new to the profession are able to obtain...
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