Rules Governing the Utah State Bar and Rules of Professional Practice – Comment Period Closed June 19, 2023

USB14-0711. Grading and Passing the Bar Examination. AMEND. This proposed rule amendment lowers the passing bar examination score from 270 to 260.

USB14-0712. Qualification for Admission Based on UBE. AMEND. This proposed rule amendment lowers the acceptable transferred Universal Bar Exam score from 270 to 260.

USB14-0207. Finances. AMEND. This rule amendment requires the Utah State Bar to annually submit to the Supreme Court recommendations on increasing, decreasing, or maintaining current licensing fees.

RPP11-0107. Open and Public Meetings. AMEND. This rule amendment adds the newly established Advisory Committee on the Rule of Business and Chancery Procedure to this rule as a committee that must only hold open meetings.

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33 thoughts on “Rules Governing the Utah State Bar and Rules of Professional Practice – Comment Period Closed June 19, 2023
  1. Jon Parry

    I disfavor and don’t recommend approval of proposed USB14-0711 and USB 14-0712, which both propose to lower the passing Universal Bar Exam bar examination score from 270 to 260.

    Over the past 10 years or so, I have helped grade both the ethics and the wills and trusts essay questions on the Utah State Bar examination. The trend I have witnessed over the past three to four years is a rather distinct drop in the average performance on the wills and trust essay answers from examinees. The decline in performance pertains to the examinees’ understanding of applicable law and ability to reason to a cogent conclusion, which are both fundamental qualities that the exam questions test. The questions have not become more difficult over time.

    This overall decline in the quality of exam answers is very concerning, but I don’t believe that lowering the minimum passing UBE score is the remedy or necessary. To the contrary, lowering the the minimum passing UBE score will only open the door to more examinees who are probably not capable or equipped to competently serve as practicing, licensed lawyers.

    The purpose of the bar exam is to ensure that examinees are indeed ready to practice law. The exam ultimately functions to protect the public interest. Lowering the minimum required score seems only likely to reduce the overall quality of legal representation in Utah.

     
  2. John Gadd

    I am against the lowering of the passing bar exam score from 270 to 260 in proposed rules USB14-0711 and USB14-0712. The public needs competent lawyers, and lowering the passing score will result in the licensing of less competent lawyers. Utah already has an extremely high pass rate, as compared to other states, which indicates that the current passing score of 270 may already be too low. The whole purpose of a bar exam is to make sure that we only license a new lawyer after he or she demonstrates a minimum level of competency with the law. By lowering the passing score, we are headed in the wrong direction and effectively allowing less competent lawyers into the profession, which will likely result in less competent representation for clients. Please reconsider these proposed rules.

     
  3. Ryan N. Dooley

    Utah should not join Alabama, Minnesota, Missouri, and New Mexico in racing to the bottom with the lowest UBE scores at 260. We should be making it more competitive by raising the score to at least 273 just like Arizona.

    We talk of “raising the bar” in our profession and this does the exact opposite. Instead of making applicants study harder, you are incentivising poor performance by actually lowering the bar. The brutal truth is that if you study hard enough then you will pass the bar. Is there a dearth of lawyers in Utah? Of course not. The Bar is a tool to ensure to the public that only minimally competent lawyers will be admitted. And this is not a very high bar to pass. This move is unwise, imprudent, and will negatively affect our profession, the public’s perception of our profession, and will allow less knowledgeable applicants to be turned loose on the general public. There is real harm in lowering the bar. Let’s not lower the bar, let’s raise it.

     
  4. George A Hunt

    Why lower the standards for passing the bar? I believe the members of the bar and the public would appreciate seeing your support or lack thereof. So far, I can find nothing.

     
  5. Richard L. Sanders

    I’d like to know what the reason is for lowering the passable score. It would be helpful for many of us (in order to comment about it as usefully as possible) if we knew the impetus here. Are not enough takers passing the test? Or is this for UBE reciprocity purposes, and/or state metric uniformity purposes? Or is it the hope that an easier test will result in more lawyers per capita and from that hopefully increase access to justice? Because if the last, I would simply say that an expansion of programs and incentives for lawyers to engage in more pro bono activities might better serve. Personally I didn’t have any trouble passing the current test and don’t believe any well prepared student would. At least, no one from my cohort (2014) ever told me of any difficulty. So it’s unclear to me that the test is broken. So I think knowing the specific reason or goal behind this revision would be helpful and important to know, so we can scrutinize and comment more thoughtfully. As it stands it might leave the impression that “Utah is making it easier to pass the exam and therefore Utah is watering down the quality of the pool of candidates it will license”. I don’t think that is the intended takeaway here, ergo more information would help a lot. Just my $0.02. Thank you.

     
  6. Russell M. Blood

    I oppose the proposed amendment lowering the passing scores for the Bar Exam. I am a member of the group that grades the trusts and estates questions, and it is my observation that, even though the questions seem to have been less difficult on the past few exams, the quality of the answers has been declining. I understand the stress of performing on the bar exam, but I have a concern that requiring less of the examinees will result in a further lowering of their performance on future exams and, accordingly, a less well prepared and less qualified attorney serving the public after admission to the bar.

     
  7. J. RobRoy Platt

    I oppose the proposed amendment to Rule 14-711 which lowers the passing score for the Bar exam by 10 points. Legal quality cannot take a back seat to quantity in the effort to increase the public’s access to legal services. This amendment feels like an attempt to sacrifice quality for quantity to that end. I simply do not see a net benefit in augmenting the volume of lower-quality legal services in Utah.

    I have graded the Utah Bar exam for years now, and am often stunned at the poor quality of legal analysis and reasoning shown by many Bar examinees. Such individuals should not pass the Bar until they have put in the requisite effort to reach the established standards. Do what is right, let the consequence follow. And the right thing to do is to ensure that Bar examinees are adequately prepared to successfully sit for the Bar exam–not lowering the passing score.

     
  8. Dean Gordon Smith

    Lowering the passing score on the bar examination from 270 to 260 is a welcome step on bar licensure. According to the National Conference of Bar Examiners (NCBE), the Uniform Bar Exam (UBE) “assures a high-quality, uniform system of assessment of minimum competence.” Nevertheless, the NCBE has never been shown to be a valid test of competence to practice law. Indeed, in 2018 the NCBE appointed a task force “to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice,” and the task force implicitly acknowledged the failure of the UBE to accomplish its stated goal, recommending a major overhaul of the examination that has come to be called the “Next Generation Bar Examination.”

    Even if we assumed the current UBE was well-designed to test competence to practice law, no one — including the NCBE — could tell us the score at which “minimum competence” would be established. Thus, it is impossible to justify any passing score as the correct one. Perhaps not surprisingly, therefore, the 39 states currently using the UBE have seven different passing scores, even though no one seriously argues that “minimum competence” varies from state to state. Two law professors who studied the setting of these so-called “cut scores” concluded that they were the result of “a peculiar mixture of psychometrics, tradition, and politics.” Joan W. Howarth & Judith Welch Wegner, Ringing Changes: Systems Thinking About Legal Licensing, 13 FIU L. REV. 383, 413 (2019). In some instances, cut scores have been explicitly connected to controlling the number of lawyers, rather than establishing the standard of minimum competence.

    Utah’s choice of 270 seems to have been motivated primarily by the fact that 270 was the modal score among states that had adopted the UBE. Among UBE states, Utah and 17 other states require a passing score of 270, but 18 other states (plus the District of Columbia and the Virgin Islands) have established lower passing scores, including six states with a score of 260.

    While the change in cut score from 270 to 260 suffers from the same problem as the initial setting of the cut score at 270, namely, the lowering of the score is not justified by any connection between that score and minimum competence to practice law, moving the cut score to the lower boundary of UBE passing scores follows the recent trend of states lowering cut scores to acknowledge significant problems with relying on the UBE as a test of minimum competence to practice law. Utah now has the third highest cut score in the nation. Given the limited value of the UBE as a test of minimum competence to practice law, it should not present such a barrier to licensure for people who have already completed three years of graduate study in law (which is, itself, an unusually high barrier to licensure compared with other countries).

    BYU Law School typically has only a small number of graduate who score below 270 on the UBE, and almost all of those graduates could be admitted to practice law in another jurisdiction. Knowing these students, I am confident that they would be a credit to the Utah Bar, and many of them would work in jobs that promote greater access to justice for Utahns. The proposal to lower the passing bar examination score from 270 to 260 is a small change, but I am confident that it would serve the public’s interest. Thus, I endorse the proposal.

    Beyond the proposed amendments. I would welcome the inclusion of some modest retroactivity for this change. I would allow all applicants who have already applied for the July 2023 administration of the UBE (the final filing deadline date was April 1) to update their existing applications with a prior score. This would affect a small number of people, but would obviate the need for this limited group of people to retake an examination for which they have already obtained a passing score.

    I am grateful to the Utah Supreme Court for its constant efforts on behalf of the people of Utah, and I hope these changes will be embraced by the Utah Bar and the public.

     
  9. Elysiara Chamberlain

    I am someone who might be impacted by this change. Unfortunately, in February, I received a score of 267. I am currently working to take the bar exam again come July. I did quite well on the written portion, but just low enough on the multiple choice portion to not make the cut. I have struggled with multiple choice questions my whole education even prior to law school. I understand the argument to not lower the standard as we all want the citizens of Utah to be properly represented by sound, hardworking attorneys.

    I believe I fit that criteria even though I have not yet passed. I have been working under the Law Graduate Practice Certificate with a law firm since I graduated Law School in May 2022. I even graduated from my law school with honors. If nothing comes of this, I will still be taking the test in July, but a simple score of 3 more points is what is keeping me and many others who are entirely capable from being able to offer more access to justice in Utah. I hope, as stated in a previous comment, that this small change can occur and a small retroactivity could occur.

     
  10. Catherine Bramble

    I am strongly in favor of the Utah Supreme Court’s proposal to lower the passing score from 270 to 260 and appreciate the Court’s continued interest in and thoughtful attention to ongoing issues with attorney licensure and the Uniform Bar Exam.

    I graduated in 2005 and was admitted to the Utah Bar that same year. I never thought about the Bar Exam again until a few years ago when, as a law professor, I became involved in BYU Law School’s efforts to support students post-graduation. What I have learned over the past 4 years while critically studying the Bar Exam has completely changed my perception of it. In a profession that prides itself on critical thinking, evidence-based conclusions, and modernization when evidence and logic demonstrate that the way things have previously been done are no longer warranted or supportable, I would hope that we as members of the Utah State Bar will become informed about the issues surrounding attorney licensure and supportive of the Utah Supreme Court in its efforts to improve the licensure process.

    The Uniform Bar Exam (used in Utah and 40+ other jurisdictions) is administered by the National Conference of Bar Examiners (NCBE) and is an exam that was not created based on any evidence-based research to determine what is required for an attorney to be minimally competent. In October of 2020, results were published from the most comprehensive study ever done of what minimum attorney competence is by researchers completely unaffiliated with the NCBE. Building a Better Bar: The Twelve Building Blocks of Minimum Competence, Deborah Merritt & Logan Cornett (October 2020). The study was the first to use qualitative research and involved 50 focus groups of practicing attorneys in 18 locations spread across the U.S. including junior and experienced lawyers across multiple areas of practice. The study concluded that there are “12 building blocks of minimum competence”—the ability to identify legal issues, the ability to conduct research, and the ability to communicate as a lawyer, to name a few. The study further included 10 recommendations for future licensure processes including that (1) written exams are not well-suited to assessing all aspects of minimum competence, (2) multiple-choice questions should be using sparingly, if at all, as they are a poor way of assessing threshold understanding of legal doctrine, and (3) test questions should be open book given that legal practice is open book.

    Interestingly, the NCBE chose to run a study at the same time to determine what minimum competence is and concluded that it includes many of the same skills identified by The Twelve Building Blocks study. However, the NCBE’s list of skills included multiple skills that have never been tested on the Bar Exam in any fashion (e.g., client counseling and advising, negotiation and dispute resolution, and legal research). As a result of its own study, the NCBE promised to overhaul the existing exam by 2026 with the “NextGen Bar Exam.” Given that the rollout is taking several years, the NCBE has still defended its current exam—the UBE—as a completely reliable test of minimum competence even while admitting that its own study demonstrated that family law, trusts and estates, conflict of laws, and secured transactions are not sufficiently relevant to be tested for minimum competence. The NCBE, however, claims it has no way of removing these areas from the Bar before 2026 since exams are written so far in advance.

    Therefore, the current Bar Exam fails to test critical skills needed for minimum competence, continues to test areas that it admits are irrelevant to minimum competence, and uses improper methods to test those areas it does focus on, including requiring significant amounts of memorization with 50% of the test-taker’s score being from 200 multiple-choice questions. In the meantime, the UBE has become a test of privilege, requiring students to spend up to $4,000 on a commercial Bar prep course and devote hundreds of full-time study hours during the 10-12 weeks following law school graduation.

    This test of privilege has resulted in significant racial disparities in Bar Exam results. According to data from the American Bar Association, in 2020, only 66% of Black first-time test takers passed as compared to 88% of white first-time test takers.

    Perhaps the disparate impact could be justified if it played a necessary role in protecting the public. However, just as the lack of research has resulted in a current Bar Exam that does not test the right things in the right way, there has never been any evidence from any jurisdiction that having a lower cut score has resulted in an increase in attorney malpractice. In fact, a 2013 study showed that the most common areas of discipline for attorneys have nothing to do with the skills tested on the Bar Exam. The most common areas of attorney discipline identified from that study were (1) failing to communicate with clients (20%); lack of diligence (17.93%); and failure to safeguard client property (11.26%). A Study of the Relationship Between Bar Admissions Data and Subsequent Lawyer Discipline. https://ssrn.com/abstract=2258164.

    Furthermore, the NCBE itself claims that the Bar Exam is a completely reliable test of minimum competence that will better protect the public while, in the same breadth, claiming that individual jurisdictions can pick any score between 260-280 and the results will be equally reliable. If minimum competence is truly a minimum standard, which is presumably a yes/no question, how can there be a 20-point spread that jurisdictions can arbitrarily choose from?

    Finally, from an anecdotal standpoint as the most oft-cited reasoning I hear to support attorneys’ opinions on the Bar Exam is based on their personal experience as Bar taker or Bar grader, I have now worked with hundreds of students preparing for the Bar Exam. I have worked with students who failed by one or two points in Utah, earning a score that made them “minimally competent” in many other U.S. jurisdictions that have chosen a slightly lower pass score. Some of these students have moved out of Utah to be licensed elsewhere and have had wonderfully successful careers as attorneys. More than one of them have been students who would have added to the diversity of Utah’s attorneys, but an arbitrary pass score kept them out. Others have stayed here and spent the next 6 months studying again with all of the cost that entails—not working for 6 months, paying again for a prep class, paying again for the Bar Exam, and not being able to contribute their legal skills to the citizens of Utah; none of this is to mention the severe mental and emotional stress of retaking the Bar Exam to earn 1 or 2 more points. Not one student has ever reported that the second time through resulted in them gaining helpful legal knowledge or skills they didn’t have before; rather, they drill down on test-taking strategies and practice hundreds of multiple-choice questions to memorize obscure legal rules that have nothing to do with their area of legal practice.

    Turning back to evidence-based argument, California lowered its cut score a few years ago, and it resulted in significantly more underrepresented populations being admitted to the California Bar while having no effect on increasing malpractice rates.

    I applaud the Court for being willing to carefully consider the issue of attorney licensure given the current Bar exam options available. I hope my colleagues in legal practice will do the same and support not only a lowering of the passing score to 260—a score the test-makers themselves claim is reliable in demonstrating minimum competence—but also support further reform in the area of attorney licensure in the coming years.

     
  11. Sherri Walton

    I am in agreement with Dean Gordan Smith and Catherine Bramble, and strongly add my support in changing the passing rate to 260. Clearly, there are significant issues with the Bar exam. I have not seen a difference between practicing attorneys who passed the bar with a high score and attorneys who had to take the exam more than once to pass.

    My greatest concern over the Bar exam and the score required to pass is the need for additional attorneys. I am a partner in our firm, and hiring has become extremely competitive and difficult. Last year we advertised several times for attorneys, but we received only a small handful of applicants. Most of who were out of work for a significant reason. We even hired a couple we were concerned about, but being desperate, we had hoped the applicant could overcome our concerns, which they did not.

    We have had to think outside of the box and work towards having our paralegals, who are interested, become LLPs. For our tax department, we have paid for the education and testing of our paralegals to become registered agents with the IRS. Even with all of this, we are still in need of attorneys.

    While I understand the need for testing and the need to determine if a law school applicant is capable of practicing law on a competent level, I do not believe, nor have I seen, the score on the bar exam determine who those competent graduates are. Rather, I believe that graduating from an accredited law school speaks volumes towards an individual’s competency as a licensed attorney.

    I further believe that this pass rate should become retroactive back to at least the test takers of the February 2022 exam. The need for additional attorneys in our communities is great, and making this test score retroactive will assist firms like mine, to find quality attorneys who are ready to learn the profession and work hard for their clients.

     
  12. Paul MacArthur

    I am convinced by the logic of Ms. Bramble and Dean Smith and so strongly support the Utah Supreme Court’s proposal identified as proposed rules USB14-0711 and USB14-0712. It seems to me that the UBE has a lot of work to do to establish a correlation between its scores and the minimum competence to practice law standard. Until they do, it seems that using the UBE score can only be relied upon to give no more than a general sense of competency. With all the efforts of the Utah Supreme Court to bring legal services to those in our communities who can’t afford the legal services that they need, coupled with the fact that billable rates seem to have risen significantly over the past 3-5 years in Utah, it seems like we would want to move in the direction of bringing more law school graduates into licensure. It would seem that lowering the score by 10 points would do that. I don’t see that lowering the score by such a small amount would result in admission of those who cannot demonstrate a level of “minimum competence” as compared to those with a 270 score. To be clear, if there were valid, supportable evidence that the bar exam in its current form provides an effective measuring tool of minimum competence, I would likely take a different position, but, for now, it seems like we are relying on a standard that has not ben tied, using evidence-based research, to minimum competence and, therefore, I don’t put too much weight in a 260 score vs. a 270 score in relation to minimum competence, while I do see the need to bring more licensed attorneys to the practice of law in Utah.

     
  13. Louisa Heiny

    As a professor who works closely with students preparing for the Bar exam and an attorney licensed in both Colorado and Utah, I strongly favor a change in the Utah Bar passing score.

    First, no data exists showing that the passing score (also called a “cut score”) is tied to the competency of an entry-level attorney. The NCBE, which creates and scores the UBE, has indicated that any score above 260 shows competence. Beyond that, jurisdictions may choose their own passing score for the Bar Exam. Over the years, the passing score in various jurisdictions has ranged from 260 to 280. Today, 20 jurisdictions require a score between 260 and 269, while 21 require a score between 270 and 273.

    Neither the NCBE nor any researcher has quantified the difference in skills between an applicant who scores a 260 and an applicant who scores a 264, 266, or 270. In the absence of information, jurisdictions have somewhat arbitrarily chosen a passing score. This has led to an incongruous result: an applicant who scores a 266 is competent to practice law in Kansas City, Missouri but incompetent to practice as soon as she crosses the State Line Road and enters Kansas City, Kansas.

    Second, a higher passing score does not protect the public. There is no evidence that the 20 jurisdictions with a passing score below 270 have a higher incidence of malpractice claims or complaints of ineffective assistance of counsel. There is also no indication that California, which lowered its cut score in 2021, has seen an increase in complaints. In fact, the best data available show that malpractice claims are most highly correlated with years in practice, not Bar exam passage.

    Third, there is no evidence that studying for the Bar exam creates the competence needed to practice. Recent studies, including multi-year studies by the Institute for the Advancement of the American Legal System (IAALS) and the NCBE have indicated that skills, not memorized black letter law, are most important for new attorneys. The current Bar exam, however, strongly emphasizes the latter over the former and rewards those who score highest in the area least relevant to practice.

    Fourth, were Utah to lower its passing score, it would join other states such as California, Colorado, and Alaska that have realized that a higher passing score serves only to delay or exclude otherwise competent applicants from legal careers. The majority of the Utah Bar is made up of graduates of the University of Utah S.J. Quinney College of Law and Brigham Young University Law School. Both have historically high admissions metrics, with median LSAT scores in the 160’s and undergraduate GPAs north of 3.8, as well as extraordinary ultimate Bar pass rates. 97.8% of SJQ students who graduated from SJQ between 2017 and 2022 who wish to be licensed are licensed somewhere in the nation. 97.5% of SJQ graduates who sat for a Bar exam passed. Lowering the cut score will therefore not result in an influx of less-able attorneys, but will rather speed the process of admission for the unfortunate few who miss the cut by 4% or less.

    A NextGen Bar exam is coming, likely in July 2026. After 2026, the NCBE may do a better job of testing skills, thus making Bar exam study more relevant to the creation of a competent attorney. After 2026, the NCBE may be able to quantify the difference in competence between a student who scores a 260 on the NextGen Bar and a student who scores a 270. After 2026, the Utah Supreme Court may be able to make an evidence-based decision about the proper cut score from among a range of options. Until 2026, however, the tie should go to the runner.

    Regardless of the choice the Court ultimately makes, my thanks to the Justices of the Utah Supreme Court and Utah Bar Admissions for their thoughtful consideration of licensing issues.

     
  14. Dean Elizabeth Kronk Warner

    I write to support the proposed amendment lowering the passing bar examination score from 270 to 260. I appreciate the Court’s willingness to consider this important issue and comments submitted by the public.

    First, I wholeheartedly support the comments submitted by Dean Gordon Smith and Professor Catherine Bramble. Both have done an excellent job of explaining why the passing bar examination score should be lowered to 260.

    My comments focus on the discriminatory impact of the existing 270 passing bar examination score. As Dean Smith explained, many, including myself, question whether the bar exam is a test of competency. We can agree that the current exam is flawed, as the NCBE has announced the release of the Next Generation Bar Examination in the coming years. The bar examination is a test of affluence and not competence as most test takers must invest significant time and money into preparing for the exam. For example, if a law student were to accept a post-graduation job making $60,000 per year, the student would lose approximately $15,000 in salary if they took time off from work to study for the bar examination. [It is recommended that students study between 400 and 600 hours to adequately prepare for the bar exam, or 10 to 15 weeks.] Additionally, the student might pay up to $3,500 for bar preparation costs. The financial cost to the student could be upwards of $20,000 to study for the bar exam.

    As a result of these costs, the bar exam disproportionately burdens and disadvantages women, racialized minorities, and low-income earners. In turn, those falling between a 260 and 269 bar score are more likely to fall within one of these impacted groups than those scoring a 270 or higher. The higher passing score in Utah excludes recent graduates who would add significant diversity to the practice of law. The ABA recently released data showing the difference in bar passage. In 2022, the first-time pass rate for white test takers was 83%, while 57% of Black examinees passed on their first attempt. For first-time Hispanic and Asian test takers the pass rates were 69% and 75% respectively.

    The 270 passing score only exacerbates the disparate impact of the bar exam. In 2020, the AccessLex Institute released a study confirming that a lower cut score “would have increased the number of newly admitted minority attorneys in California.” Further, “[t]he study also determined that no relationship exists between the selection of a cut score and the number of complaints, formal charges, or disciplinary actions taken against attorneys. The study results indicate that maintaining a high cut score does not result in greater public protection as measured by disciplinary statistics but does result in excluding minorities from admission to the bar and the practice of law at rates disproportionately higher than Whites.” Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards, https://www.accesslex.org/grant-research-and-data-tools-and-resources/examining-california-cut-score-empirical-analysis. Although California is not a UBE state, the analysis from this study is equally applicable to Utah.

    Further, an unfortunate and significant consequence this disproportionate impact on women, racialized minorities, and low-income earners is the public’s access to justice. There is evidence that non-majority lawyers provide a disproportionately high percentage of services to “minority” and underserved communities. By excluding people who would likely serve underserved populations, the 270 bar examination pass score negatively impacts many of those most in need of legal services throughout our state. Access to justice is an issue of significant and increasing concern in Utah. The task force created in 2018 to research and make recommendations on this critical issue states in its August 2019 Final Report that ‘“[a]n estimated five billion people have unmet justice needs globally. This justice gap includes people who cannot obtain justice for everyday problems, people who are excluded from the opportunity the law provides, and people who live in extreme conditions of injustice.’” The report explains that the lack of access to justice is not limited to those in underdeveloped countries; rather, “an astonishing ‘86% of civil legal problems reported by low-income Americans in [2016-2017] received inadequate or no legal help.’”

    Since joining the legal academy in 2006, I have known many students who missed the passing bar exam score by a mere handful of points. In most instances, they failed because they were unable to take two to three months off from work to study for the exam, and not because of their competency. All would have been excellent additions to the legal bar (and many eventually passed after retaking the bar exam at significant cost to themselves or took the bar exam in a state with a lower passing bar exam score requirement). As at BYU Law School, only a small number of students at the S.J. Quinney College of Law fail to pass the Utah bar exam on the first try, and most of those would have been admitted in other states. All of these students would be a welcome addition to the Utah practicing bar. Because our students are passionate about access to justice and pro bono, I am also confident that these students would have helped the most vulnerable Utahans. I therefore agree with Dean Smith that the proposed amendment is in the best interest of the public.

    For these reasons and those advanced by other commentators, I support the proposed amendment as it is consistent with notions of anti-racism and will advance access to justice in Utah. Again, I very much appreciate the Court’s consideration of these comments.

     
  15. Emily Lowder

    I am in favor of the proposed amendments lowering the passing score for the Bar exam from 270 to 260 and the transfer score from other jurisdictions from 270 to 260.

    I agree with Dean Gordon Smith, Catherine Bramble, and Dean Elizabeth Warner. The Bar exam fails to test minimum competency and instead acts as an unnecessary barrier for many bright-minded and teachable law school graduates. It is an economic and financial barrier, requiring many individuals to study full-time for several months, going without any form of income. For many, this is completely unreasonable. Examinees should not be required to get into excessive debt or lose months of career opportunities for two days of testing.

    Moreover, it tests memorization skills more than it tests actual competency. Attorneys have access to any and all materials they may need, particularly as legal materials become more widely available online. In no instance would an attorney be required to answer a legal question outside of their field without the option of saying “I’m not sure at this time” or quickly looking it up. Nor would an attorney be required to prepare legal memos, motions, wills, trusts, etc. without a template or guide from the court website itself – which, here in Utah, is monumentally helpful and easily accessible.

    I myself failed the Bar exam in July 2022 by seven points, which had enormous effects on my mental and emotional wellbeing, as well as my financial future. At the time, I was already working with experienced attorneys under supervision. I was certainly competent enough to work for them and assist dozens of clients under supervision, but I wasn’t considered competent by the Bar because I missed two multiple choice questions. I think that any reasonable person would find this absurd. Surely the actual work I was doing is more determinative of competency than multiple choice questions and short essays.

    A much better method for determining minimum competency would be to institute an internship or trainee period, allowing new graduates to work under supervision with regular mentoring and feedback.

    For these reasons and the reasons offered by the Deans above me, I support the proposed amendment.

     
  16. Spencer J. Hafen

    I support the lowering of a passing score from 270 to 260.

    Using the Bar Exam as a measure of the competency of a legal practitioner is an archaic standard. Lest we forget, graduates in the State of Utah in the Class of 2020 were not even required to take the Bar Exam.

    Lowering this artificial hurdle would only allow greater equity for those disadvantaged individuals who deal with greater constraints in preparation for the Bar Exam in pursuing a career as an attorney. This change would have virtually no effect on the quality of attorneys in Utah.

     
  17. Dallin Drescher

    I am in support of the proposed amendment to lower the passing UBE score in Utah from 270 to 260. Doing so will help increase the public’s access to effective legal aid.

    There is no indication that someone who scores a 260 on the exam is any less competent than someone who scores a 270. Aside from the statistics that have been cited in other comments, I can attest to this from personal experience. I studied with a group of friends for the bar exam. They all knew the law better than I did. I had focused on transactional work in law school and was working full time while studying, therefore I was completely lost on most of the bar exam subjects. However, I benefitted from the fact that I read fast, type fast, and am good at multiple choice questions. These skills are all essential for the bar exam, but are pretty useless (and sometimes even harmful) as far as actual legal practice goes. I was lucky on exam day and received a passing score. Some of my friends did not. They knew the law better than I did. And they were probably more “competent” than I was. We were all just subject to the limitations of a flawed exam.

    While firms struggle to find competent attorneys to hire and individuals struggle to find attorneys with the time to adequately represent them, there are people in Utah who could be working for those firms and helping those individuals but for Utah’s high passing score. We need to drop the pretense that a 270 score is materially different from a 260 and allow those individuals to be admitted to the bar so that they can help people here in Utah.

     
  18. James Rex Lee

    I strongly support the Utah Supreme Court’s proposal to lower the passing score from 270 to 260. I also hope that the Court will consider additional attorney-licensing reforms.

    Indeed, despite various commenters’ assertions to the contrary, stricter licensing standards don’t improve the quality of legal services. Nor do they protect the public. Instead, and as an impressive number of empirical studies show, strict licensing laws generally hurt providers and consumers alike, regardless of the occupation. Morris M. Kleiner & Maria Koumenta, Grease or Grit?: International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality, Upjohn Instit. for Emp. Rsch. (2022), https://doi.org/10.17848/‌9780880996877. Less restrictive licensure, by contrast, actually reduces costs and incidents of professional misconduct.

    For example, scholars have also found that optician licensing has no discernible effects on the quality of eye care, public health, and patient safety. Edward J. Timmons & Anna Mills, Bringing the Effects of Occupational Licensing into Focus: Optician Licensing in the United States, 44 E. Econ. J. 69 (2018), https://doi.org/10.1057/eej.2016.4. And stricter licensing requirements for real-estate agents have been shown to both decrease home sales and increase the cost of real-estate services. Yet the total number of misconduct incidents—which these stricter requirements were intended to reduce—remained unchanged. Bobby Chung, Trade-Offs of Occupational Licensing: Understanding the Costs and Potential Benefits (2020), https://dx.doi.org/10.2139/ssrn.3707990.

    Fortunately, the significant costs caused by strict licensure laws can be undone. To see how, consider a recent case study from Poland, which significantly relaxed the score needed to pass its respective bar exam a few years ago. Since relaxing this (and other) barriers to entry, the number of advocates has doubled, significantly reducing costs for consumers, and creating a more diverse and representative legal work force. What’s more, professional-misconduct complaints fell by 66%. Piotr Bialowolski & Dorota Weziak-Bialowolska, What Does It Take to Be a Good Lawyer? The Underpinnings of Success in a Rapidly Growing Legal Market, 13 Sustainability 1 (2021), https://doi.org/10.3390/su13115841.

    So lowering the passing score from 270 to 260 likely won’t harm Utahns. To the contrary, it could be the tide that lifts all boats. As these studies show, the Utah Supreme Court’s proposal could help the public. And as Catherine Bramble, Dean Smith, and Dean Warner demonstrate in their respective comments, this change could also help attorneys and improve the legal profession.

    Of course, many attorneys will favor the old regime. Higher barriers to entry mean less competition, and less competition means more money. But as a licensed attorney, I must support the rule that helps my clients, not the rule that advances my own interests. For these reasons, I trust that the Utah Supreme Court will rely on empirical and disinterested studies, the great majority of which suggest that this proposal would benefit the Utah Bar and the public.

     
  19. Carolyn Sharp

    I do not believe that a passing score of 270 on the Utah Bar Exam is an effective measure of legal competency. For this reason, I support steps the Court may take to better filter the competent from incompetent legal candidates. And while I do not wish to advocate for arbitrary barriers to licensure (a passing score of 260 is no more a guarantee of competence than 270), I do support minimizing arbitrary barriers. Therefore, I favor the proposed amendments relating to USB14-0711 and USB14-0712.

     
  20. Jessica Smith

    I am strongly in favor of this proposal as the bare minimum, given the lack of actual data supporting that the current bar exam is successful at establishing minimum competency, the studies indicating its failure to assess minimum competency, and public interests. These proposed amendments are a good starting point. I agree with the arguments raised by Deans Smith and Warner. I also echo Catherine Bramble’s concerns regarding privilege and disparities.

    An assessment which accurately reflects competency should be reflective of the actual knowledge and practice environment. Many attorneys practice in specialized areas of laws not tested on the bar exam whatsoever and may never advise a client on areas of law that are tested. I think of an attorney whose practice is intellectual property. Can we truly say that the bar exam establishes that attorney’s competency to practice in that area? Additionally, requiring would-be attorneys to establish competency largely through memorization skills is dangerous because of limited familiarity and artificial constraints (closed book, time limits) in opposition to actual practice (diligence, sufficient analysis for the situation). I think of a newly-licensed attorney asked a question related to law studied for purposes of the bar exam who, perceiving that they were deemed competent enough in at least that area of law, goes right back to “bar exam mode” with an as-quickly-as-possible analysis and answer based on memory.

    Sherri Walton and Paul MacArthur both made compelling observations in support of making this change now. The current hiring landscape would benefit by more attorneys gaining licensure. Rising billable rates obstruct access to justice for Utahns and efforts to bring more legal services to underserved communities have yet to close the gap. This change will help. Louisa Heiny pointed out that the NextGen Bar Exam is several years out. Utah should take steps now.

    I also believe that the Court should evaluate and take additional steps. Utah would benefit from additional routes to licensure. Alternately, law schools are fully capable of determining minimum competency, and our schools are arguably better suited to determine minimum competency due to foundational coursework, instruction and testing reflective of actual practice, assessment of a student’s skill level and competency building over time, and the ability to certify minimum competency in skills and specialized practice areas not currently covered by the bar exam. Rather than utilizing cut scores on disputed test measures, clients would be better served by newly-licensed attorneys objectively prepared for actual practice—with more robust communication skills, preparation for caseload management, and simulated experience in handling cases from client intake through case resolution.

     
  21. David Hill

    I strongly support the proposal to lower the passing score from 270 to 260. I share in the thoughtful and well-researched views of Deans Smith and Kronk Warner, and Professors Bramble and Heiny. I’ve worked closely with students studying for the bar for almost 20 years, including many students taking the bar for a second time after scoring between a 260 and 270 on their first attempt. All of those students were as qualified to practice law after their first attempt to pass the bar as they were the second. In the interim, they suffered the stress and financial costs associated with sitting for the bar a second time, as well as the disruption to their families and delay in their efforts to secure a job and practice law.

    As many have mentioned, the bar exam is an imperfect and outdated method for measuring competence to practice law. The efforts by the National Conference of Bar Examiners to create the NextGen Bar exam is evidence that a new approach is long overdue. Until those changes take effect, lowering the score to 260—which the NCBE itself recognizes as a measure of competency–is a significant means of mitigating the shortcomings of the current exam, while improving the well-being of our students across their three years of legal study and benefiting the profession by reducing the risk that their admittance to the bar might be delayed unnecessarily.

     
  22. Robert Rice

    It concerns me that the real problem is that the UBE does not effectively measure competency. But I agree with the thoughtful analysis provided by Dean Kronk Warner and Dean Smith and I support the 0711 and 0712 amendments.

     
  23. Susan Griffith

    I fully support lowering the passing UBE score from 270 to 260 for the same reasons outlined by Dean Smith, Dean Kronk Warner, Professor Bramble, and Professor Heiny.

    I want to emphasize that I fully support creating a bar licensure process that measures actual competence. The public absolutely needs to be protected. There is just no proof that a passing score of 270 better protects the public than a score of 260.

    I look forward to the day we have a better tool for testing competence. In the meantime, we should not continue an artificial burden that has never proven successful at better protecting the public or demonstrated evidence of improving attorney competence with a retake.

     
  24. Tatiana Bryan Christensen

    I am in support of this change for the reasons that many commenters (including Catherine Bramble, Gordon Smith, Louisa Heiny, and others) outline. I look forward to even more changes to the Bar exam in the future that are evidence based.

     
  25. Don Harsh

    If the Utah wants equality, then lowering the required bar score from 270 to 260 would a very big step in the right direction. This is because many talented and hard-working attorneys are not great at taking tests. There are many reasons for this, one of them being that a lot of these attorneys, do not have the proper resources or training to be great at test taking. Again, this is not due to any laziness on their part, but more so because of a lack of equality in their upbringing.

     
  26. Lindsay Bayles

    I am in favor of the bar lowering the passing score from 270 to 260. I personally know someone with a well-documented disability that was not granted reasonable accommodations and incurred over $15,000 in legal fees trying to educate the bar on their misstep and obtain these very reasonable accommodations. The bar exam disproportionately affects those with a disability and minorities that do not have the support to pay for expensive (and excessive) neuropsychology exams. This change in the score would allow this person I know to be admitted to the bar. They know far more than required to meet the “minimum competency” that the bar supposedly tests. They take excellent care of their clients and would add value to the Bar. Please feel free to contact me for additional information.

     
  27. Carol Chomsky

    I support the proposed change in the bar examination passing score from 270 to 260. Minnesota has had a passing score of 260 for many years and has had no issues with competence or qualification of new lawyers based on having that rather than a higher passing score. Bar pass data as well as studies conducted in connection with California’s consideration of reducing its passing score demonstrate the negative impact that higher passing scores has on the diversity of the bar, so reducing the passing score in Utah may also make the exam more fair and equitable.

     
  28. M. Esq.

    USB 14-0711 and USB 14-0712. I am in agreement with lowering the passing bar examination score from 270 to 260. If an individual has managed to go to law school and graduate, they are likely more than competent to take the bar. The bar exam is an added barrier of entry for underprivileged applicants to enter the field. Studying for and passing the bar requires diligent and concentrated effort, and those who have the resources to completely focus on their studies during the three-month period without the inconvenience of working, are more likely to take and pass the bar. Not every applicant has the resources or opportunity to go without working for a three-month period. I am fully in support of lowering the bar passage score.

    USB 14-0704. It is proposed that this rule be amended to be in alignment with the amendments to be made to USB 12-809 which deal with practice pending admission for attorneys licensed in other jurisdictions. While a practice pending allowance for attorneys licensed in other jurisdictions in beneficial, I think it would be prudent to allow attorneys who have been practicing for more than 10 years in any jurisdiction to waive in, with the support of their supervising attorney, after the practicing pending license has expired. The supervising attorney can attest to the skill and knowledge of the attorney waiving in, and the attorney waiving in does not have to go through the added inconvenience of studying for the bar while working full time in a profession that is known to have hours that typically exceed the 40 hour work week.
    I am a licensed attorney in both California and DC. I have been practicing for nearly twelve years. I recently moved to Utah and now need to take the bar exam. Applying to take the bar exam, the paperwork that goes along with it, and attempting to carve out the necessary study time to actually do well on the exam has been a struggle to say the least. As a senior associate, I have a full case load and other obligations with my firm and the community, that easily reach or exceed a normal 40 hour work week, and often extend to 60+ hours or more. Additionally, the application process is unnecessarily complicated and burdensome. I can estimate that I have spent over 150 hours dealing with the unnecessary and massive hurdles of red tape for my application. I have probably spent more time sending in paperwork, more paperwork, verifications, exhibits and correspondence with the admissions portal than I have studying. When applying to take the state bar exam takes more time than actually studying for the test, Utah is setting up competent lawyers for failure. If an attorney has been practicing for over ten years with no discipline in any jurisdiction, and they have been practicing under the supervision of a Utah attorney for a year, they are clearly competent. Requiring an additional bar exam at such a late stage in their career is an unnecessary and burdensome obstacle.

     
  29. ME

    USB 14-0711 and USB 14-0712. I am in agreement with lowering the passing bar examination score from 270 to 260. If an individual has managed to go to law school and graduate, they are likely more than competent to take the bar. The bar exam is an added barrier of entry for underprivileged applicants to enter the field. Studying for and passing the bar requires diligent and concentrated effort, and those who have the resources to completely focus on their studies during the three-month period without the inconvenience of working, are more likely to take and pass the bar. Not every applicant has the resources or opportunity to go without working for a three-month period. I am fully in support of lowering the bar passage score.

    USB 14-0704. It is proposed that this rule be amended to be in alignment with the amendments to be made to USB 12-809 which deal with practice pending admission for attorneys licensed in other jurisdictions. While a practice pending allowance for attorneys licensed in other jurisdictions in beneficial, I think it would be prudent to allow attorneys who have been practicing for more than 10 years in any jurisdiction to waive in, with the support of their supervising attorney, after the practicing pending license has expired. The supervising attorney can attest to the skill and knowledge of the attorney waiving in, and the attorney waiving in does not have to go through the added inconvenience of studying for the bar while working full time in a profession that is known to have hours that typically exceed the 40 hour work week.
    I am a licensed attorney in both California and DC. I have been practicing for nearly twelve years. I recently moved to Utah and now need to take the bar exam. Applying to take the bar exam, the paperwork that goes along with it, and attempting to carve out the necessary study time to actually do well on the exam has been a struggle to say the least. As a senior associate, I have a full case load and other obligations with my firm and the community, that easily reach or exceed a normal 40 hour work week, and often extend to 60+ hours or more. Additionally, the application process is unnecessarily complicated and burdensome. I can estimate that I have spent over 150 hours dealing with the unnecessary and massive hurdles of red tape for my application. I have probably spent more time sending in paperwork, more paperwork, verifications, exhibits and correspondence with the admissions portal than I have studying. When applying to take the state bar exam takes more time than actually studying for the test, Utah is setting up competent lawyers for failure. If an attorney has been practicing for over ten years with no discipline in any jurisdiction, and they have been practicing under the supervision of a Utah attorney for a year, they are clearly competent. Requiring an additional bar exam at such a late stage in their career is an unnecessary and burdensome obstacle.

    I am strongly in favor of adopting these changes prior to the July 2023 bar exam.

     
  30. Anon

    I strongly favor lowering the passing score from 270 to 260 for the reasons stated in previous supporting comments.

     
  31. Deborah J Merritt

    I strongly support the Court’s proposal to lower the passing score (and transfer score) from 270 to 260. I have researched and written about licensing issues for more than 20 years, co-directed the Building a Better Bar study, and am currently consulting with NCBE and several states on improved ways to assess attorney competence. Based on my extensive research in this area, I agree with all of the evidence that previous commenters have cited: the UBE does a poor job of testing the knowledge and skills that newly licensed lawyers actually use in law practice; it has become a test of privilege because of the time and money that test-takers must invest to prepare for an exam that relies heavily on memorization; and no evidence supports a passing score higher than 260. On the contrary, higher passing scores impose barriers to entry and have a disproportionate racial impact.

    I will add just a few thoughts to all of the excellent, evidence-based comments supporting the Court’s proposal. First, the UBE has become more difficult since Utah adopted the exam in 2012, In 2015, NCBE added a seventh subject (Civil Procedure) to the multiple-choice section of the bar exam. This increased the number of detailed rules that test-takers must memorize by 17%–a substantial increase. As test-takers sought to memorize this increased number of rules, their performance on all subjects declined. That is to be expected: human brains are limited in how much detail they can recall at one time (which is why good lawyers check sources for detail). This increased difficulty alone supports lowering the passing score.

    Second, the UBE is terribly outdated in the law that it tests. The exam requires test-takers to memorize the elements of numerous common-law crimes, even though most states (including Utah) have abolished common-law crimes. No competent prosecutor or criminal defense attorney would rely upon their memory of common-law elements: they would consult the governing statutes. Similarly, test-takers must memorize extensive common-law rules about contracts, torts, and property—even though statutory schemes have replaced most of the rules that test-takers must recall for the exam.

    These common-law subjects are useful pedagogical devices in the first year of law school because they help students explore concepts and policies that inform contemporary law. But the detailed rules are not relevant to contemporary law practice. A study by Steven Foster, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3759924, dramatically illustrates this point. In his study, licensed attorneys were unable to obtain a passing score on a simulated MBE. More startling, very few were able to obtain passing scores even on questions within their practice area. No prosecutor or criminal defense attorney, for example, obtained a passing score on the MBE questions related to criminal law.

    For all of these reasons, I support the Court’s proposal to lower the passing score—and I hope that the Court will explore other avenues for assessing lawyering competence. We must do a better job of protecting the public by reforming our licensing systems to focus on the knowledge and skills that clients need from lawyers. Thank you for offering this opportunity to comment.

     
  32. Joan Howarth

    Thank you for the opportunity to comment on the proposal to change Utah’s UBE passing score from 270 to 260. This pass score change is exactly the one I recommend in my new book, Joan W. Howarth, Shaping the Bar: The Future of Attorney Licensing (Stanford Univ. Press 2023).

    As I have written:
    “Arguments for higher cut scores generally rest on current practitioners’ preferences: to keep out competition, to impose the familiar hazing rituals on future lawyers, or to assert lofty but ungrounded claims about public protection.
    Every bar examiner and state supreme court justice should understand that “[a]rtificially high bar passage standards are of special concern because those standards can have a disproportionate impact on minority applicants to the bar.” Disparate impact having been established, jurisdictions should show evidence of job relatedness to select any cut score above that of any other state with competent lawyers. A cut score of [260] is currently being used successfully by Alabama, Minnesota, Missouri, New Mexico, and North Dakota. These five states cover difference regions of the country and include a variety of practice areas, such as international firms in Minnesota and Missouri; rural practices in several of these states; and private practice, government, and nonprofit practice in all five. No evidence suggests that the public suffers from lawyers in these states being less competent than in the forty-five states that choose higher MBE cut scores. Indeed, recent research suggests that higher cut scores bear no relationship to attorney competence as measure in disciplinary rates.

    Bar examiners read terrible essay answers, shudder, and worry that too many passing candidates lack the minimum competence to practice law. But the artificial aspects of bar exams—especially the unrealistic time limits and the inability to research anything—render suspect judgments about minimum competence based on these bar exam essays. No one would give a new associate twenty, thirty, or even sixty minutes to produce a memo identifying and analyzing five to ten legal problems suggested by a relatively complicated factual situation without access to the law or sufficient time to proofread.”
    Shaping the Bar at pp. 104-05 (citations omitted).

    A license to practice law should be difficult to get, but the challenge should come from requirements that are laser-focused on ensuring that every newly licensed attorney is at least minimally competent to practice law. Difficult requirements that do not ensure minimum competence protect lawyers by keeping out competition, but do not protect the public. Cut scores above 260 are in this category.

    Attorneys are justifiably proud of our bar exam success. We undertook the work of preparing for bar exams with the understanding that the bar exam was closely related to lawyering competence. Bar exams have been the defining ritual of a cautious profession. But changing the passing score as proposed is an important step toward licensing requirements based on research about public protection instead of tradition.

    Joan W. Howarth,
    Distinguished Visiting Professor, Boyd School of Law, UNLV
    Dean Emerita, Michigan State University College of Law