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A Better Bar Exam—Look to Upper Canada?

July 25th, 2017 / By


Today, tens of thousands of aspiring lawyers across the United States sit for the bar exam in a ritual that should be designed to identify who has the ability to be a competent new lawyer. Yet a growing chorus of critics questions whether the current knowledge-focused exam is the best way to draw that line and protect the public. As Professor Deborah Merritt has noted, “On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.”

For years, the response to critiques of the bar exam has been, in effect: “It’s not perfect, but it’s the best we can do if we want a psychometrically defensible exam.” The Law Society of Upper Canada (LSUC), which governs the law licensing process for the province of Ontario, developed a licensing exam that calls that defense into question.

Overview of Law Society of Upper Canada Licensing Exam

The LSUC uses a 7-hour multiple-choice test consisting of 220 to 240 multiple-choice questions to test a wide range of competencies. For barristers (the litigating branch of the profession), that includes ethical and professional responsibilities; knowledge of the law; establishing and maintaining the lawyer-client relationship; problem/issue Identification, analysis, and assessment; alternative dispute resolution; litigation process; and practice management issues. A 2004 report explains how the LSUC identified key competencies and developed a licensing test based upon them.

Unlike the US exams, the LSUC exam is open-book, so it tests the ability to find and process relevant information rather than the ability to memorize rules. Most important, it tests a wider range of lawyering competencies than US exams, and it does so in the context of how lawyers address real client problems rather than as abstract analytical problems.

Below, we discuss how these differences address many of the critiques of the current US bar exams and make the LSUC exam an effective test of new lawyer competence. We also provide sample questions from both the LSUC and the US exam.

Open-Book Exam

Like all bar licensing exams in the United States (with the New Hampshire Daniel Webster Scholars Program as the sole exception), the LSUC exam is a pencil-and-paper timed exam. However, unlike any United States exam, including the Uniform Bar Exam, the LSUC licensing exam is open book.

The LSUC gives all candidates online access to materials that address all competencies the exam tests and encourages candidates to bring those materials to the exam. To help them navigate the materials, candidates are urged to create and bring to the exam tabbing or color-coding systems, short summaries of selected topics, index cards, and other study aids.

Lawyering is an open-book profession. Indeed, it might be considered malpractice to answer a legal problem without checking sources! As we have previously noted, good lawyers “…know enough to ask the right questions, figure out how to approach the problem and research the law, or know enough to recognize that the question is outside of their expertise and should be referred to a lawyer more well-versed in that area of law.” Actually referring a problem to someone else isn’t a feasible choice in the context of the bar exam, of course, but accessing the relevant knowledge base is.

The open-book LSUC exam tests a key lawyering competency untested by the US exam—the ability to find the appropriate legal information—and it addresses a significant critique of the current U.S. exams: that they test memorization of legal rules, a skill unrelated to actual law practice.

Candidates for the bar in Canada no doubt pore over the written material to learn the specifics, just as US students do, but they are also able to rely on that material to remind them of the rules as they answer the questions, just as a lawyer would do.

Testing More Lawyering Competencies

Like all bar exams in the US, the LSUC exam assesses legal knowledge and analytical skills. However, unlike US bar exams, the LSUC exam also assesses competencies that relate to fundamental lawyering skills beyond the ability to analyze legal doctrine.

As Professor Merritt has noted, studies conducted by the National Conference of Bar Examiners [NCBE] and the Institute for the Advancement of the American Legal System confirm the gaps between the competencies new lawyers need and what the current US bar exams test, citing the absence of essential lawyering competencies such as interviewing principles; client communication; information gathering; case analysis and planning; alternative dispute resolution; negotiation; the litigation process; and practice management issues.

The NCBE has justified their absence by maintaining that such skills cannot be tested via multiple-choice questions. However, as illustrated below, the LSUC exam does just that, while also raising professional responsibility questions as part of the fact patterns testing those competencies.

Testing Competencies in Context of How Lawyers Use Information

The LSUC exam attempts to capture the daily work of lawyers. Rather than test knowledge of pure doctrine to predict a result as the US exams tend to do, the LSUC used Bloom’s taxonomy to develop questions that ask how knowledge of the law informs the proper representation of the client.

The LSUC questions seek information such as: what a client needs to know; how a lawyer would respond to a tribunal if asked “x”; where a lawyer would look to find the relevant information to determine the steps to be taken; and what issues a lawyer should research. That testing methodology replicates how lawyers use the law in practice much more effectively than do the US exams.

The LSUC exam format and content addresses a significant critique of US bar exams—that those exams ask questions that are unrelated to how lawyers use legal doctrine in practice and that the US exams fail to assess many of the key skills lawyers need.

Sample Questions from the LSUC and the MBE

Here is a sampling of LSUC questions that test for lawyering skills in a manner not addressed in US exams. These and other sample questions are available on the Law Society of Upper Canada’s website:

  1. Gertrude has come to Roberta, a lawyer, to draw up a power of attorney for personal care. Gertrude will be undergoing major surgery and wants to ensure that her wishes are fulfilled should anything go wrong. Gertrude’s husband is quite elderly and not in good health, so she may want her two adult daughters to be the attorneys. The religion of one of her daughters requires adherents to protect human life at all costs. Gertrude’s other daughter is struggling financially. What further information should Roberta obtain from Gertrude?
(a) The state of her daughters’ marriages.
(b) The state of Gertrude’s marriage.
(c) Gertrude’s personal care wishes.
(d) Gertrude’s health status.
  1. Tracy was charged with Assault Causing Bodily Harm. She has instructed her lawyer, Kurt, to get her the fastest jury trial date possible. The Crown has not requested a preliminary inquiry. Kurt does not believe that a preliminary inquiry is necessary because of the quality of the disclosure. How can Kurt get Tracy the fastest trial date?
(a) Waive Tracy’s right to a preliminary inquiry and set the trial date.
(b) Bring an 11(b) Application to force a quick jury trial date.
(c) Conduct the preliminary inquiry quickly and set down the jury trial.
(d) Elect on Tracy’s behalf trial by a Provincial Court Judge.
  1. Peyton, a real estate lawyer, is acting for a married couple, Lara and Chris, on the purchase of their first home. Lara’s mother will be lending the couple some money and would like to register a mortgage on title. Lara and Chris have asked Peyton to prepare and register the mortgage documentation. They are agreeable to Peyton acting for the three of them. Chris’ brother is also lending them money but Lara and Chris have asked Peyton not to tell Lara’s mother this fact. Should Peyton act?
(a) Yes, because the parties consented.
(b) No, because there is a conflict of interest.
(c) Yes, because the parties are related.
(d) No, because she should not act on both the purchase and the mortgage.
  1. Prior to the real estate closing, in which jurisdiction should the purchaser’s lawyer search executions?
(a) Where the seller previously resided.
(b) Where the seller’s real property is located.
(c) Where the seller’s personal property is located.
(d) Where the seller is moving.

[These questions test the applicant’s understanding of: the information a lawyer needs from the client or other sources, strategic and effective use of trial process, ethical responsibilities, and knowledge of the real property registration system, all in the service of proper representation of a client. Correct answers: c, a, b, b.]

Compare these questions to typical MBE questions, which focus on applying memorized elements of legal rules to arrive at a conclusion about which party likely prevails. [More available here.]

  1. A woman borrowed $800,000 from a bank and gave the bank a note for that amount secured by a mortgage on her farm. Several years later, at a time when the woman still owed the bank $750,000 on the mortgage loan, she sold the farm to a man for $900,000. The man paid the woman $150,000 in cash and specifically assumed the mortgage note. The bank received notice of this transaction and elected not to exercise the optional due-on-sale clause in the mortgage. Without informing the man, the bank later released the woman from any further personal liability on the note. After he had owned the farm for a number of years, the man defaulted on the loan. The bank properly accelerated the loan, and the farm was eventually sold at a foreclosure sale for $500,000. Because there was still $600,000 owing on the note, the bank sued the man for the $100,000 deficiency. Is the man liable to the bank for the deficiency?
(a) No, because the woman would have still been primarily liable for payment, but the bank had released her from personal liability.
(b) No, because the bank’s release of the woman from personal liability also released the man.
(c) Yes, because the bank’s release of the woman constituted a clogging of the equity of redemption.
(d) Yes, because the man’s personal liability on the note was not affected by the bank’s release of the woman.
  1. A man arranged to have custom-made wooden shutters installed on the windows of his home. The contractor who installed the shutters did so by drilling screws and brackets into the exterior window frames and the shutters. The man later agreed to sell the home to a buyer. The sales agreement did not mention the shutters, the buyer did not inquire about them, and the buyer did not conduct a walkthrough inspection of the home before the closing. The man conveyed the home to the buyer by warranty deed. After the sale closed, the buyer noticed that the shutters and brackets had been removed from the home and that the window frames had been repaired and repainted. The buyer demanded that the man return the shutters and pay the cost of reinstallation, claiming that the shutters had been conveyed to him with the sale of the home. When the man refused, the buyer sued. Is the buyer likely to prevail?
(a) No, because the sales agreement did not mention the shutters.
(b) No, because the window frames had been repaired and repainted after removal of the shutters.
(c) Yes, because the shutters had become fixtures.
(d) Yes, because the man gave the buyer a warranty deed and the absence of the shutters violated a covenant of the deed

[Correct answers: d, c]

We Can Build a Better Bar Exam

As illustrated above, the LSUC exam shows that it is possible to test a far wider range of competencies than those tested in US bar exams.

Does the LSUC exam address all of the flaws of US bar exams? No—one problem that persists for both the LSUC and US exams is the requirement for rapid answers (less than 2 minutes per question), which rewards an ability and practice not associated with effective lawyering.

Does the LSUC exam fully address experiential skills? No—LSUC also requires applicants to “article” (a kind of apprenticeship with a law firm) or participate in the Law Practice Program (a four-month training course and a four-month work placement).

But the exam does what the NCBE has told us cannot be done. It is a psychometrically valid exam that assesses skills far beyond the competencies tested on US bar exams: skills such as interviewing, negotiating, counseling, fact investigation, and client-centered advocacy. And its emphasis is on lawyering competencies—using doctrine in the context of client problems.

Eileen Kaufman is Professor of Law at the Touro College, Jacob D. Fuchsberg Law Center.

Andi Curcio is Professor of Law at the Georgia State University College of Law.

Carol Chomsky is Professor of Law at the University of Minnesota Law School.

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