Barnard, J W; Greenspan, M --- "Incremental Bar Admission: Lessons from the Medical Profession" [2004] LegEdDig 2; (2004) 12(3) Legal Education Digest 3

Incremental Bar Admission: Lessons from the Medical Profession

J W Barnard & M Greenspan

[2004] LegEdDig 2; (2004) 12(3) Legal Education Digest 3

53 J Legal Educ 3, 2003, pp 340–367

Consider two ambitious college students, Able and Caitlin. For the first two years, the nature of their education is essentially identical: classroom instruction in the theoretical underpinnings of and principles governing the field; instruction in the skills required to perform specific professional tasks; simulations; perhaps some live client experiences; written tests; oral presentations; and cocurricular activities. But then their experiences will diverge. While Able moves through law school, accumulating course credits and anticipating the bar examination, Caitlin will very quickly begin to be assessed for purposes of licensure. That is, rather than taking a single exam after graduation like Able, Caitlin will take a series of examinations while she is still a student. Failure to pass any one of these examinations will render Caitlin ineligible to proceed toward licensure. This approach to licensure and certification — we will call it the ‘incremental’ or ‘medical model’ — offers several advantages over the bar examination model.

This article examines the use of incremental licensure for physicians and explores how a similar approach might improve the current bar admission process. The vehicle for assessment of entry-level physicians is the Untied States Medical Licensing Examination (USMLE). The USMLE is administered by the National Board of Medical Examiners (NBME), which provides the results to state licensing agencies. The NBME works in concert with the Federation of State Medical Boards to ensure that all the procedures used and the tests employed are recognised equally in all fifty states.

Step 1 of the USMLE typically occurs at the end of the second year of medical school and seeks to assess whether the applicant ‘can understand and apply important concepts of science basic to the practice of medicine’. Step 2 of the USMLE typically occurs early in the fourth year, after the student has spent at least a year in a rotation through various clinical specialties. Step 3 occurs either just after graduation or after completion of a year of postgraduate medical training. With respect to Step 1.5 (the test of clinical skills), recently the NBME, together with the Federation of State Medical Boards, announced the creation of an additional test to be added to the current USMLE, designed to be taken late in the third year or some time in the fourth year.

Licensure upon passage of Step 3 of the USMLE is just the beginning of professional credentialling process for doctors. All medical students today go on to a postgraduate program of one type or another. During the first postgraduate year, the candidate begins to practise more independently than was possible as a medical school student, though always under the supervision of more senior physicians. Upon completion of postgraduate training the candidate will seek certification through a national medical specialty board.

A newly board-certified physician may be licensed anywhere in the US, even though, as in the legal profession, some states have reputations tougher than others when it comes to licensure. Bar licensure proceeds quite differently from medical licensure and is, quite frankly, a more superficial process. For a handful of students, preparation for the bar examination begins in the first year of law school but many students defer that process until the third year.

More typically, law students begin to focus on the bar exam and the process of licensure at the beginning of their third year. Forty-seven states require the Multistate Professional Responsibility Examinations, designed to test the candidate’s knowledge of the standards governing a lawyer’s professional conduct. The Multistate Bar Examination, employed by 48 states, covers the six basic subjects typically encountered in the first three semesters of law school.

From 2003, 13 states will use the Multistate Essay Examination, which is designed to function just like the essay questions in the state section of bar exam. In addition, every state’s board of bar examiners devises a series of essay questions designed to test the candidate’s ability to analyse a legal scenario and write a logically organised answer based upon applicable state law.

In the legal profession, as in the medical profession, it is possible to become certified as a specialist. Twenty-one states recognise at least some form of lawyer specialisation. Typically a lawyer seeking certification must have practised for several years, devoted a significant portion of her time to the particular specialty, received the endorsement of one or more specialists and judges, attended a certain number of CLE courses and taken a written examination.

Unlike the medical profession where, upon completion of an accredited postgraduate program and receipt of board certification in a given specialty, licensure is available nationwide, the legal profession offers bar examination strictly on a state-by-state basis with little uniformity. After initial licensure the problem gets worse. It may be that a state has a reciprocal relationship with bars of other states but 18 states do not offer reciprocity.

Physicians only receive their licenses to practise without supervision after two years of post-college course work in basic science and two more years of intense, supervised clinical placements in the highly structured environment of an accredited medical school. Then even more is required: three or more additional years of progressively responsible patient care under close supervision in a postgraduate program. By contrast, lawyers who may never have spent a day in a day in a law office can receive a license that qualifies them to do any of those things for the first time without supervision. Isn’t there something wrong with this picture?

Many lawyers today find themselves practising across state boundaries, so new lawyers often take two or even three separate bar exams after graduation. Physicians face few such problems and a licensed and board-certified physician should have little difficulty achieving licensure in any state at the beginning of her career. And later migration is usually easier for most doctors than it is for most lawyers.

A system for the restructuring of the current process of lawyer credentialing is proposed below, by adapting the medical model to the existing legal model. The goal is threefold: to produce better-trained lawyers who enter the profession with a higher degree of readiness to practise than today’s new lawyers have; to stress the need for continued education and assessment of lawyers during the first three years of their practice; and to increase the public’s confidence in the profession.

Step 1 — An early test of legal foundation — first, the Multistate Professional Responsibility Exam and the Multistate Bar Exam would be combined and taken at the end of the second year of law school.

Step 2 — A test of professional and interpersonal skills — this would test interpersonal skills, organisational skills and basic writing skills, to be taken before or during their fifth semester.

Step 3 — The new-and-improved comprehensive bar examination to replicate the kinds of intuitive assembly of factual information and law, and the kinds of preliminary ‘diagnoses’ that most lawyers must make when encountering a new client or a new file.

Step 4 — Postgraduate education in the context of today’s legal practice — upon successful completion of the Step 3 exam the candidate would receive a provisional license to practise law in the state or states of her choice. During this period she would have to demonstrate that she was attending specific CLE courses; attending specific CLE courses for beginning lawyers; and receiving meaningful supervision of, and regular feedback on, her work as a lawyer.

Step 5 — A second and final bar exam to test for expertise in the lawyer’s field of practice — after a defined period, not less than three years, the candidate would be required to take a second written bar examination on one to three legal subjects of her choosing. Passage of Step 5 would be required for permanent licensure as a lawyer.

There are obvious disadvantages to this proposal, the foremost among them being increased stress throughout the law school experience and significantly increased cost, especially for the test of lawyering skills. However, the benefits of our proposal outweigh the disadvantages. First, this proposal should reduce the number of lawyers who lack the necessary people skills to attract and retain clients. Second, testing for ethics at the end of the second year of law school rather than during the third would reinforce the centrality of professional conduct in the legal profession. Third, introduction of a test of lawyering skills at the beginning of the third year would force the law schools to more thoughtfully address the teaching of those skills during the first two years.

The fourth advantage has to do with what will happen to students after they graduate from law school. The authors believe that an emphasis on supervision and feedback during the first three years of practice would advance the cause, first articulated in the MacCrate Report, of ensuring that new lawyers recognise the need for continued study throughout their careers. Fifth, the proposal would build on learning theory, which recognises a hierarchy of competencies by building incrementally from lower order tasks Step 1 to higher-order tasks in Step 2 to still higher-order tasks in Step 3. The final post-licensure examination will look much like Step 3, but would require a demonstration of mastery of discrete subject areas.