Rules Governing the Utah State Bar – Admissions – Comment Period Closes December 19, 2024

BRILLIANT IDEA to encourage future attorneys to learn how to practice law before being empowered by the bar to do so. Law school does not accomplish that basic task. Coursework is not sufficient. On-the-job training would be beneficial and would allow those with limited financial means to have the opportunity as well.

Passing a multiple-“guess” test is a skill–NOT a representation of one’s ability to do anything other than regurgitate what was taught in an expensive cram class. Those who are not good at taking timed, high-pressure exams are being kept out of a profession that needs them. The legal field would benefit from welcoming all kinds of people, including those who take a bit more time or need a breather while working on an intense project. Pretending that the results of a memorization test in any way forecast accurately one’s ability to succeed in a field as broad as the law is farcical.

The grading of the written section is subjective and not indicative of how one would write in the real world. Capable folks take the time to draft a document, run it through AI, edit their work, have another set of eyes glance at it, and then polish it before it ever gets published. Today’s realities are far more complex than what a timed, handwritten exam can assess.

Sitting for the bar exam is not the best way to determine one’s aptitude for the legal field. Skills required today need a more broad-based evaluation system. Spending time “in the trenches” would give an individual the opportunity to shine in meaningful ways: cooperates and collaborates effectively, meets deadlines, stays organized, or works well with clients. Those and other beneficial indicators of success would assist future employers far more than a pass/fail result on a standardized exam.

I am in favor of the changes, but ask that the 5-year graduation time limit be removed to accommodate those that are older and have been working to provide for their families since graduating from school. (Most core areas of law change very little or very slowly). If the idea is to address limitations of past exam practices, then it’s inconsistent to maintain a cutoff of 5 years, if 5.5 years and more than 240 hours of apprenticeship could achieve the same outcome. If 5 years versus anyone who graduated later in life, does make a difference, then require those that graduated more than 5 years ago to complete more hours (e.g. 400+ or scaled depending on graduation date).
The provision to disqualify someone who failed an exam previously in UT (e.g. during Covid) or in another state should likewise be removed for the very fact that the alternative is being created – the exam is not a strong indicator of competency. Which is why the state is adopting a new exam in 2028. Will the current 6 attempt limit then start over once the exam is changed? Additionally, other states exams have different exam criteria, score cutoffs, more rules to remember, grading criteria, different scaling, etc. Disqualifying an applicant because of a past failed exam that this alternative says is flawed doesn’t seem consistent with the intent of this option. At least one driver of this alternative, was to create a path for those working full time, caring for family. The goal is to remove a barrier, and it seems like it is currently set up to create a barrier for those that failed the exam by requiring them to only ever have the option to take the exam.
Please remove the 5-year recent graduation limit and the – having failed an exam in the past – to be consistent with the intent of this alternative. Thank you.

Although well-intentioned, you may want to reconsider based on the fact that people will undoubtedly point to the revision and claim that all Utah lawyers are morons.

And don’t forget that Old West killer and cattle thief John Wesley Hardin came to be a lawyer later in his “career” by an alternative bar admission route.

I am in favor of an Alternative Path to licensure with the following hesitations:

First, eliminating the need for a bar exam that is comparable to other state bar exams would likely mean Utah will lose our reciprocity agreements with those other states, which makes Utah licensure less attractive for attorneys who may want to practice in other states at some point.

Second, 240 hours of supervised practice is not sufficient. That can be knocked out in 6 weeks of full-time work. I would recommend increasing those hours to 500 so that a law-graduate pursuing the alternate path, with its simplified exam, must work at least 3-months under supervision before being authorized to fly solo. (Note: this is still fewer practice hours than are needed to become a licensed massage therapist in Utah (600 if graduated from massage school, or 1,000 hours in an apprenticeship lasting at least one year).)

I am apposed to the alternative path as proposedby 14-703A. Stress, timeframes, etc, and proof of such compentancies are all part of being an active member of the bar. Lowering the standard of praticing professionals will result in worse results for clients. If someone cannot take a standard test, where proven study methods and materials are available, they should not represent clients in extremely stressful situations.

I am opposed to this proposed alternate way to become a lawyer her in Utah. We deal with peoples’ lives in the sense of their freedom, liberty, rights, the ability to right a wrong,just to mention a few. In my opinion, this would be kin to giving an alternate path to get medical license without graduating med school and no medical board exam. That’s a scary thought!!

I am sure this will still happen, however the public needs to know they are getting. Do I want to go with an attorney that has graduated law school and passed the bar exam or an attorney that did not have to graduate law school and pass the bar? There should be an distinction so the public knows. I believe the public deserves to know if their lawyer has gone to law school and passed a bar exam or not.

As a Utah Bar member, I strongly object to the considered rule amendments. Though I believe the Diploma Privilege exemption was a poor decision, the justification given in 2020 was not carte blanche to all applicants. It was as applied to schools with high acceptance criteria, high performance metrics, and very high Bar Exam passage rates. In other words, the Bar Exam, for the vast majority of the students, was a hoop to jump through, albeit an important hoop. Exceptional circumstances created a balancing of interests on whether more harm was caused or avoided by jumping through the hoop. The unfortunate result is that a small percentage of likely incompetent applicants (the percent of those that would have failed the Bar if it were administered) were admitted to the Bar.
This proposed rule change is nothing of the sort that led to 2020 Diploma Privilege and only leads to greater harms for the public, the Bar, competent applicants, and the profession at large. This rule does not create a pathway to admission for the highly capable, as did the Diploma Exemption, it creates a shortcut for those who are unable to reach the standard expected of officers of the court. The rule change sets aside concrete examination of an applicant’s intelligence and replaces it with a larger amount of busy work. All of this busy work omits intelligence or ability to absorb vast quantities of complex information; ability to digest and summarize complex writings, and proficiency at issue spotting. It replaces this with years of working and approval by biased supervisors. The rule allows for an amorphous performance evaluation instead of an examination of mental capacity. Time is not a replacement for competency, nor is a “performance evaluation” a substitute for intellect.
Additionally, this alternate path creates unequal application of Bar admission standards to applicants. Without a standardized test for competency, the right circles would facilitate a smoother path to Bar admission that may not be open to another candidate, leading to discriminatory admittance. Take, for example, the son/daughter of a wealthy partner of a large firm. That person may perform poorly at a prestigious law school, be unable to pass the Bar, yet land a great associate role at their parent’s firm. After the requisite years of experience, and while still incompetent to practice law, the parent and associated partners give this applicant shining marks, paving the way for this applicant to be admitted to the Bar and join the family partnership. According to the Bar Exam, this applicant is still incompetent and ineligible to represent the legal interests of the public. This applicant is no more qualified to be admitted to the Bar than an applicant, also unable to pass the Bar, who is unable to land the role at a supportive firm. Yet, the rule allows for the result that the former applicant is admitted and the latter is not. The Bar is indiscriminatory. Should the Bar wish to support law grads who are ineligible to be admitted to the Bar, the solution is not to lower the standard to the applicant, it is to raise the applicant to the Bar. Also, if under-privileged and incompetent applicants are unable to pass the Bar, that person is vulnerable to take inadequate compensation as an unlicensed/supervised attorney in order to access the alternative pathway to licensure. Firms will possess greater leverage to hire these attorneys for at under-market wages for the promise of easier admittance to the Bar. This alternative pathway only opens up opportunities for firms to take advantage of low-quality applicants.
In sum, one cannot accept this rule change without acknowledging one of two facts. Either the Bar was never a good measure of an attorney’s ability to practice law and therefore should not be used for admittance or the standards for admittance to practice law are too high and should be lowered to accommodate those who wish to practice law, but do not have the faculties to do so. I argue that both of the suppositions are wrong. The Bar has been critiqued and reviewed for decades, as has been the LSAT as a measure of an attorney’s success in law school and in the legal practice. They have both been shown to be accurate measures of a person’s ability to successfully practice law. The standard applicants are expected to meet is a standard intended to protect the public and should not be lowered. As a fiduciary of the client’s interests, and officer of the court, a person bears significant liability in representing the law to the courts and on behalf of the public. The standard, if anything, should only raise as society advances, intelligence rises, and the law becomes more complex. A rising tide raises all ships. The rule lowers the tide and will only lead to more ships running aground. The proposed rule utterly fails to demonstrate how it is increasing the critical thinking and problem-solving skills that are paramount to the practice of law and by-so-doing, fails to advance the profession. It replaces these skills with demonstrations of work ethic and arbitrary approvals, which frankly put, will lead to worse legal representation for the public. As a result, the applicants as a whole are worse off, the profession is worse off, and the public are worse off. The only possible beneficiary is the incompetent applicant who could not pass the Bar Exam, but was admitted anyway, which begs the question, why have a standard at all?
This rule proposal should be rejected.

I agree with this proposal and see the benefits that a simplified exam would provide in showing the candidate’s ability to enter the practice of law.

However, I fundamentally disagree with Rule 14-703A(a)(3) requiring that the candidate not have sat for a bar exam in any jurisdiction. If the traditional bar exam and the proposed alternate path are each sufficient for licensure on their own, the failure at one path should not bar the candidate from pursuing the other path. This is similar to a failure under the current system not preventing the candidate from re-taking the exam and eventually becoming licensed.

I am in favor of the alternate path to licensure. The bar is not the best way to test for competency. Frankly, we have plenty of unethical and incompetent lawyers who have passed the bar. What is a better measure of capacity under pressure, ability to learn fast, ability to compartmentalize and analyze large quantities of info, and ability to work with difficult clients or clients that know more about a subject matter than you: a three day test of subject that have little to no bearing on your work as a lawyer, or an “apprenticeship” where you actually are dealing with real-world clients, emotions, money, etc over several hours, weeks and months? I work in an industry where, increasingly, attorneys are required to know more and more about technological and subject matter expertise, unrelated to areas of law covered by the bar. As competition amongst lawyers is increasing, specialization is increasing, as is the need for training for specialized lawyers and competition for these same lawyers. Having served as a mentor for new lawyers and law students in Utah and across the nation through ABA mentorship programs, I find it increasingly evident that many times, the law school and the bar prep leave some young lawyers or law students, of all ethnic and economic backgrounds, unprepared for some of the real world practice of law, especially in areas that are mixed with high levels of technological, technical, and other highly complex subject matter. Having a law student train under the watchful mentorship and care of a well-prepared, and ethical lawyer, in a particular area over a length of time, is a much better test of preparation and mental capacity than a 2-3 day series of tests on subjects that a lawyer may never see again. Not only is it a better test of capacity, but it allows employers to test whether a person is actually fit for the job. I do feel the 20-hour client facing work should be increased to 50 or more. I think the pro-bono requirement should be shortened to 10 or removed. The training of the lawyer will likely be on the employer’s dime, and I think they can do pro bono after they are hired. Time should be spent focused on serving the clients for which they will be working.

I believe the alternative path is backwards. The bar exam should absolutely be required. Going to law school should not be required. Otherwise, it’s not much of an alternate path. I think the education portion should be a condensed training, much like a bar exam prep class. The applicant should still have to complete a required number of real-life work hours under a Utah licensed attorney. This number can be years worth of hours. The alternative path is about those folks that are not able to attend full-time law school classes in the day-time hours. This is about having the work experience replace classroom experience.

I generally support an alternative path. Bar exam results are not an accurate marker for success. Most law students spend thousands of dollars to cram information that they’ll forget by the time they get their bar exam results. It’s a waste of a summer that could have been spent learning real skills, and the only winners are the companies that sell expensive bar prep courses. I took the bar the summer after I graduated and passed the first time around, but it didn’t make me more qualified to be an attorney. What did help me was the time I spent in law school working with attorneys, externing in law offices, and clerking with judges.

I think we need a licensure process that is based on developing actual skills that attorneys need on a day-to-day basis so that attorneys are better trained and qualified to practice law in the real world. It would not surprise me if it turns out that attorneys who used the alternative path prove to be more effective legal counsel in the long run (assuming that the alternative path has more teeth to it than the New Lawyer Training Program does).

Also, I think that a lot of attorneys who are against the alternative path don’t actually believe the bar exam is a better way; I think they just want new attorneys to have to go through the same pain they went through to become an attorney. While that’s understandable, it’s not a good reason to keep the current system.

All in all, this new path might not be perfect, but it’s a good start towards giving new attorneys the skills they need to succeed.

For more than thirty years I have been a professor teaching in the clinical program at New York University School of Law. Like all law professors, I teach law students to identify and research applicable law and to engage in legal analysis. But students in clinical courses learn a great deal more. Under real-world conditions of uncertainty but under close supervision, they learn to counsel and represent clients, explore facts, generate strategies, work to achieve outcomes, improve communication skills, develop professional identities, and internalize the habits of preparation and reflection that make lifelong learners and trustworthy attorneys. I write to strongly support the proposal of the Supreme Court of Utah and the Judicial Council to provide for a supervised practice licensing alternative – including curricular requirements and a multiple-choice law test — to the current written bar examination.

The many recent criticisms of the traditional written, timed, memory-based bar examination as the only means of attorney licensing are proving increasingly well-founded. It excludes people of color at disproportionate rates. Success depends on economic resources for bar prep courses and time away from work. It rests more on tradition than on validation. Its passing scores seem random. It fails to assess whether applicants have many of the skills and values demanded by our profession for practice. Artificial intelligence tools pass it at higher scores than human law graduates. A better written bar examination such as the upcoming NextGen exam from the National Conference of Bar Examiners will be better. But it will not be as good as a sound assessment of an applicant’s performance in supervised lawyering.

Clinical law professors, including our colleagues in Utah, have now spent decades studying, writing about, and applying learning theory to the education of lawyers. We know how to assess and to improve the performance of beginner professionals. No matter what clients and matters our students handle, they learn skills that they can transfer to other practice settings. We engage them in the challenges of cross-cultural work. We teach them the urgency and the professional satisfaction of providing access to justice for the underserved. The proposed Utah supervised practice alternative will do just the same.

These kinds of supervised experiences are, like residencies for medical doctors, critical to the development of entry-level skills in lawyering and, like in medicine, should be a pre-requisite to licensing. The alternative pathway program proposed now in Utah will ensure that bar applicants have these experiences and will result in a higher quality of practice in your great state.

Thanks for considering my comment,

Prof. Claudia Angelos
NYU Law

Having worked as a legal practitioner, educator, and administrator for nearly three decades, I write to express my personal support for the proposed amendments creating an alternate path to licensure. Licensure requirements seek to protect the public by ensuring that those who are licensed to practice law are competent to do so. For many years, competence has been measured by the bar exam. The current bar exam measures certain aspects of competence. It ensures a level of knowledge of legal doctrine, an ability to apply the law to hypothetical facts, and an ability to communicate legal reasoning in writing. The NextGen bar exam, which will replace the traditional exam in Utah in 2028, changes the competency assessment by reducing the number of doctrinal areas of law tested while expanding the skills assessed. The transition from the traditional bar exam to the NextGen exam suggests that there is room for innovation in evaluating competence.

Given the inherent limitations of written exams, providing a route to licensure that ensures competence in additional ways makes sense, both for future lawyers and future clients. The proposed amendments to admissions lay out such a route. That route retains an exam that will, like the current and NextGen exams, assess the ability to apply the law to hypothetical facts and communicate that analysis in writing. The alternate route, however, will also focus on supervised practice as an avenue to develop and demonstrate competence. This approach aligns with the shift in legal education toward increased experiential learning. The path may be desirable to candidates who prefer to emphasize learning by experience. The proposed amendments also improve access to justice by ensuring that all who are qualified to practice law can demonstrate competence and achieve licensure. In addition, the amendments encourage future lawyers to integrate pro bono service into their legal practice. For these reasons, I support the proposed amendments creating an alternate path to licensure.

David Moore
Dean, BYU Law School

The views shared here are the author’s and not expressed on behalf of Brigham Young University or any other individual or entity.

The Bar Exam is not an indication of how well a person will practice law, and is not even much use as a threshold. Law school serves as that threshold. It makes much more sense to get a license through practicum, just like doctors do. This way, the license is based on practical, day-to-day skill, rather than an arbitrary test that covers material that may not ultimately relevant to an attorney’s practice. There is so much more value in earning a license through skill-based work, supervised by a practicing attorney.