The state board that licenses attorneys to practice in Minnesota has begun a comprehensive study that could offer new pathways into the profession as early as 2026.
Minnesota is one of 38 states that require new lawyers to pass the Universal Bar Examination, a grueling test that came under increased scrutiny last year.
When the coronavirus pandemic struck, some states allowed law graduates to postpone taking the two-day, 12-hour exam for public health reasons. Meanwhile, George Floyd’s murder in Minneapolis in May 2020, and subsequent racial unrest that summer, raised awareness of the bar exam’s role in keeping people of color out of the profession.
Criticism of the bar exam is nothing new, but “it definitely had a lot more momentum with everything that occurred last summer,” said Emily Eschweiler, director of the Minnesota State Board of Law Examiners.
TWO YEAR STUDY
The board in June announced it would take two years to study the bar exam, its history in the state and the impact of being a state that admits lawyers based on their scores. The review was timed to coincide with coming changes in the exam itself, which take effect in 2026.
But the Minnesota board will look beyond the test to consider “alternative options for determining competency for licensure,” such as apprenticeship-style models or the “diploma privilege,” which in Wisconsin means anyone who completes law school in the state can practice law without taking an exam.
“There’s been a lot of discussion over the course of the last year about whether the examination should be the only avenue into the practice and determining competency,” Eschweiler said.
The board in 2023 will present recommendations to the Minnesota Supreme Court, which ultimately decides how lawyers are certified to practice here.
Associated Justice Barry Anderson, the Supreme Court’s liaison to the examiners board, said Thursday the court is “certainly open to the discussion on the ways in which we license lawyers.
“I’m not prepared to say there’s any problem with the bar exam,” he said, “but I’m also not prepared to say we wouldn’t be open to alternatives that might be proposed to deal with concerns that people might have.”
Separately, the Minnesota State Bar Association is preparing a request that the Supreme Court set up its own task force to study pathways into the profession.
“This is an issue — the bar exam, its efficacy, how well it measures readiness to enter the profession — that’s been a topic of discussion around the nation. And I think that’s all been highlighted by the pandemic,” association president Jennifer Thompson said. “The time is just really right to look at how we license attorneys and measure readiness to enter the profession.”
The examiners board’s announcement said its study also would consider “the impact of the licensure process on diversity and equity.”
Just 9 percent of active lawyers in Minnesota are people of color — compared with 21 percent of the general population. The bar exam has played a role in that disparity.
Although Minnesota does not track pass rates by race or ethnicity, the American Bar Association said that in 2020, 88 percent of white candidates passed the exam on their first try, compared with 80 percent of Asians, 78 percent of Native Americans, 76 percent of Hispanics and 66 percent of Blacks.
At his installation last week as dean and president of Mitchell Hamline School of Law, Anthony Niedwiecki said the bar exam was “created by white people to exclude others from the profession.”
“The bar exam is racist,” Niedwiecki declared. “It was built to keep certain people out of the profession, and we should get rid of it. It doesn’t test the skills needed to be a successful lawyer, and there are other ways to license lawyers that are more reliable and equitable.”
Justice Anderson isn’t convinced that racial differences in pass rates are a good reason to reconsider Minnesota’s reliance on the bar exam.
“Certainly, we want a diverse bar representing the people of Minnesota; that’s certainly a goal the court has,” he said. “I’m not sure that’s necessarily linked to the bar exam.”
Eschweiler said that besides the Wisconsin model, their study figures to explore alternative pathways like New Hampshire’s Daniel Webster Scholar Honors Program, where law students build portfolios of work in real and simulated settings in lieu of the bar exam.
Another idea, which Utah implemented during the pandemic last year, admits new lawyers to the bar once they’ve spent time working under the supervision of an experienced attorney.
The Institute for the Advancement of the American Legal System last year called for a new approach to determining who’s qualified to practice law. It said the skills new lawyers need and use cannot be identified through closed-book exams with time limits and multiple-choice questions.
Dena Sonbol, dean of academic excellence at Mitchell Hamline, agrees there are problems with the bar exam.
“It tests a lot of memorization, while in real life as an attorney you don’t have to memorize,” she said.
However, adopting the Wisconsin model would be “complicated,” she said, requiring all three law schools in the state to adopt a common set of admission standards and curriculum. She thinks more incremental changes are in store for the state.
“My biggest concern as a lawyer myself … is ensuring that people that are becoming attorneys are people who are competent, skilled and ethical,” she said. “If there is a way to achieve that without a bar exam, I would definitely support it.”