Erica Moeser: A Bar for All
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Erica Moeser
Capture the energy of a border collie—that intelligent working breed known for nipping at cattle heels, almost pulling the herd ahead with an invisible string—and you’d get a sense of the spirit of Erica Moeser.
But her “herd” is a tough-to-direct bunch: She’s out to move the legal profession into a uniform, nationally accepted bar examination.
It was once seen as a radical idea, but Moeser, president of the National Conference of Bar Examiners, expects that six to 10 states will use the uniform examination in 2010, probably during July. The test is made up of three parts:
A multistate bar exam—“a six-hour, 200-question, multiple-choice examination covering contracts, torts, constitutional law, criminal law and procedure, evidence, and real property.”
A performance test—two 90-minute sections “covering legal analysis, fact analysis, problem solving, resolution of ethical dilemmas, organization and management of a lawyering task, and communication.”
An essay portion—nine 30-minute essay questions, with most jurisdictions choosing six of the nine.
Test results would be figured into a portable score that participating states would honor.
“The big advantage, and the logical one, is it’s putting law in the same position as every other profession you can name,” she says in regard to licensing. “And the fact is a lot of law, like the rules of evidence, is common. … That lends itself to this sort of testing.”
The NCBE, based in Madison, Wis., developed the test, but participating states decide the minimum passing score. And if examiners include a test portion on their state laws, other states would not include that in the portable score.
The time to act is now, Moeser says. She mentions globalization in the profession, as well as a terrible job market that leaves many students unable to tell what state they’ll be working in when it’s time to sign up for bar exams and prep courses.
“The idea was premature two decades ago,” Moeser says. “What we’ve discovered is the further we move into making this a reality, the more the sea is parting for us.”
“She senses when there’s been support to move ahead and when there isn’t enough support … and whether there’s a middle ground,” says Chief Justice Gerald W. VandeWalle of the North Dakota Supreme Court, a past chair of the ABA Section of Legal Education and Admissions to the Bar. “She can interpret a group that I belong to better than I can.”
Erica Moeser talks about why she’s been able to convince some states to seriously think about a uniform bar exam.
Still, it hasn’t always been easy. Lawyers who work in attorney licensing agencies can be a maligned group, and the egos of some academics and the judiciary present other challenges.
“I’ve seen her in front of audiences where members are antagonistic, and she doesn’t snap back,” says Mary Kay Kane, a former dean of the University of California’s Hastings College of the Law in San Francisco. “She respects the fact that people are snapping because they have a strong view, and she’s very good at not taking things personally.”
Kane is also a council member of the legal education section; and, like VandeWalle, she’s a member of the NCBE’s Special Committee on the Uniform Bar Examination.
When speaking about Moeser, Kane mentions her listening skills and how she uses others’ ears to help her. Moeser assembled a working group for the uniform bar, and as she spoke with different attorney regulation agencies, working group members were invited “not to lecture, but to listen,” Kane says. After the meetings, Moeser asked working group members what they thought of the agencies’ reactions rather than relying solely on her own assessment.
“Even those who are not sold on the idea—I’ve been absolutely delighted by their willingness to open up and have the conversation,” Moeser says.
Midwestern practicality also figures in with Moeser, though she grew up in New Orleans. She’s married to Dane County (Wis.) Circuit Judge Daniel R. Moeser. They have two sons who are both lawyers.
Moeser, 63, is a former director of the Board of Bar Examiners in Wisconsin (where the exam is waived for state law school graduates whose GPA in required courses meets a certain standard). She joined the NCBE in 1994 and started to think seriously about a uniform bar examination five years ago.
“There are some difficult nuts to crack,” she says, “but I never had any illusions that this could happen overnight.”
See sample questions from a multistate bar exam.
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Posted by B. McLeod - 4 months, 4 days, 21 hours, 58 minutes ago
In assessing its position on this question, each jurisdiction will have to decide what it really believes the purpose of the exam to be.
Posted by BL1Y - 4 months, 1 day, 13 hours, 1 minute ago
A uniform bar exam would also help young associates who are being laid off. In my case, my layoff notice came very close to the deadline for applying for the February bar in my second-choice market and I ended up missing it. Now it will likely be a full year before I can take the bar and be sworn in there, which is not a very promising way to start one’s legal career.
Posted by kml1 - 4 months, 1 day, 10 hours, 58 minutes ago
At long last! It seems to me that bar exams are an antiquated way of state bar organizations controlling the flood gates of who gets into the club and who stays out. Especially in areas of federal law, there should be a uniform bar exam for those attorneys who want to practice federal law exclusively. These would include patent/trademark, FCC, SEC attorneys and the like. It would alo enable far more attorneys to move around the country and practice law and not have to worry about local rules regarding state law membership when they don’t apply to their practice.
Posted by stupidstates - 4 months, 1 day, 10 hours, 2 minutes ago
I took two bar exams, the first significantly more difficult than the second. Although I scored in the top 2% in the first jurisdiction a mere three years earlier, the second jurisdiction required me to take the bar exam and the MPRE again. I received identical scores on the MPRE and the MBE the second time around and ended up in the top 2% in the second jurisdiction. The bar exam is NOT about testing an applicant’s understanding of the law or ability to practice. The bar exam IS nothing more than a barrier to entry, and unfortunately many states use it in a monopolistic sense rather than what is best for the profession.
Posted by Passed Already - 4 months, 1 day, 8 hours, 3 minutes ago
I agree that passing the bar in one state should be acceptable in another state. Maybe a uniform bar exam is the way to accomplish that. Right now most states already give the same exam with the exception that some states formulate their own essays rather that using the MEE.
I went to law school in Alabama and passed the bar upon the first attempt last year. I’d also like to be licensed in my home state Tennessee, but I don’t want to have to take the bar exam there. I could even understand if I had to take a TN civil proc exam or something, but the only way is for me to take the whole bar exam there. It is mind boggling that the MPRE and the MBE aren’t portable at least. I passed the same versions that their admittees did. Why isn’t that good enough?
Maybe this is too simplistic, but when I moved to AL I had a TN driver’s license. To get my license in AL all I had to do was show my valid TN license, pay the fee, and smile for my AL pic. In that case, the fact I had been licensed in one state was good enough for the other. Why can’t it be like that with my bar license?
While I know there are subtle differences in the law between AL and TN, are they so different that my legal training in AL is insufficient in TN and that I couldn’t figure out the law there? Are we still living in the dark ages? This is the 21st Century and we are a mobile society. It would be nice for state bars to recognize these realities and give full faith and credit to licenses from sister state’s bars.
Posted by Vicki - 4 months, 1 day, 7 hours, 16 minutes ago
I am delighted to see this approach getting press. With so many states already using some or all of the national exam components, with the advent of the internet, the need for a national exam has never been greater. Individual states could continue to require applications for the purpose of updating one’s moral fitness to practice, but the practice of law needs to be more portable. In addition to the reasons mentioned by others, consider the senior (there are lots of us now) who moves to a new jurisdiction and wants to undertake pro bono work or maintain a small practice. Sitting for another bar exam, decades after the first one, is a drag.
Posted by dfb - 4 months, 1 day, 7 hours ago
Next step will be a reintroduction of the LLB, which will lower the cost of a legal education and further lower barriers of entry to the legal profession.
Posted by Gene Rankin - 4 months, 1 day, 6 hours, 46 minutes ago
Several points sorta get skipped over: First, the NCBE, Ms. Moeser’s employer, is a business that has a monopoly on the ‘fungible’ bar exam, so the position taken by her is not devoid of self-interest. Second, the law’s different from state to state, and a national bar exam cannot hope to address that. A uniform exam for physicians is possible, because the pancreas stays in the same place when a state line is crossed; marital property law changes. What’s next? A uniform and single character & fitness exam? The NCBE’ll sell you that, too.
Posted by Everett - 4 months, 1 day, 6 hours, 19 minutes ago
Those who practice Federal law often do so exclusively, e.g., Patent Attorneys. States should admit those who pass the MPRE, the MBE, and the Patent Bar. Each of these tests already exists; admission to the bar based solely on their results could be done unilaterally by the District of Columbia or by any state.
Posted by Josh Effron - 4 months, 7 hours, 22 minutes ago
Attorneys who practice in certain areas of federal law already enjoy the freedom to move throughout the country without having to take additional Bar Exams.
I practice exclusively immigration law - which is, of course, exclusively federal. In order to do this, all I had to do was pass ANY Bar Exam in the U.S.—not necessarily the exam of the State where I am working—and the Federal Immigration Courts (and other immigration agencies before which I appear) will recognize me as an attorney, even if they are located outside of the State from which I got my law license.
Patent law has the same policy (you can pass the Bar Exam of ANY U.S. State/territory, not necessarily the exam in the State where you work), but in addition, you have to pass the Patent Bar Exam - which is already the same (and recognized) throughout the country.
So because I practice exclusively immigration (federal) law, I have the freedom to move anywhere in the USA without ever having to take another Bar Exam.
Some may argue that that’s fine for immigration law because it does not change from State to State, but what about, say, criminal law, which DOES change somewhat from State to State? I took the Bar Exam and remember the criminal law section. It was all about old commmon law definitions of murder and other crimes - it did not even go into the definitions and requirements currently in place in my State. I suppose that this is because the Bar Examiners decided that as long as I know the old common law, I can always research and learn how this law has been changed and updated before walking into State court to represent a client.
That being the case, I see no reason why the same wisdom cannot apply to the practice of law from State to State. If I practice criminal law in California and know the California definitions/policies about this subject, and I then move to Nebraska, is the law there SO different that I cannot learn it before walking into court? Of course not.
Even if I move to Louisiana - which uses the civil law, rather than the common law that the rest of the USA uses - there is no reason why I cannot learn it before representing a client there. After all, as a lawyer, I am duty bound to represent my clients competently. This obviously includes knowing the law and procedures in place in the State/court where I am practicing.
So I applaud Ms. Moeser’s efforts and hope that she is successful in her efforts to allow lawyers that same freedom to practice throughout the country that I and other practitioners of federal law have long enjoyed.
This will be yet another step to finally make the practice of law in sync with the realities of the 21st century.
Posted by Doug Hagerman - 3 months, 4 weeks, 1 day, 14 hours, 9 minutes ago
This is a really good idea. Many lawyers practice law globally, not state by state. The protective tendencies of state bar regulators add much in terms of cost and regulatory complexity, without much benefit. If a person can pass a multi-state bar exam, who are the states to tell them that they cannot practice in their jurisdiction?
I am general counsel of a fairly large company. We employ 12 lawyers at our headquarters in Wisconsin. None of them EVER practice Wisconsin law. They practice nationally and internationally. Why would we concede that Wisconsin has a legitimate interest in regulating them? (Wisconsin has been fairly good to in-house lawyers—so my point isn’t about Wisconsin in particular—it’s about the meaninglessness of state law in this situation.)
Barriers to entry (state bar exams) do fairly little to protect consumers, at a significant cost. These costs add up for companies trying to succeed in global competition with companies from other countries who don’t have to deal with 50 state variations of law and regulation.
One national bar exam would be a great step in the right direction.
Posted by BRAD HENSCHEL, JD - 1 month, 3 weeks, 6 days, 2 minutes ago
The Cal Bar Assn is very hostile to Non Cal Bar members practicing law in federal courts in california. See Benninghoff v. Sup. Ct.[State Bar] (2006) __ CA4th ___; In re Winterrowd, (9th Cir.2009) __ F.3d ___.
The Cal bar is calling the following actions the practice of law, a felony and misdemeanor in california: 1. Filing or attempted filing of any legal document in a federal bankruptcy court; 2. Asking a former attorney for the client file; 3. Saying one is an attorney in California when one is not a member of the Cal State Bar Corp.; 4. Writing and filing a Writ of habeas corpus in federal Court.
and more similar acts.
Winterrowd overturned Birbrower, a Calif Supreme Court case involving NY Attys. who did federal work in Calif. In CALIF if you don’t pay the money to register as out of court counsel you will have them come after you as though you are Al Capone and they are Elliott Ness, or worse.
Alan Konig, a former Bar prosecutor for CAL BAR went to the legislature to complain about the Bar’s unethical conduct. HE was put into a room and given nothing to do until he quit. Konig has been suing the Cal State Bar ever since, including taking them to the US Supreme Court. They just fired their Chief Trial counsel for going after Deputy DAs for concealing evidence of innocence which resulted in reversals of convictions. They get about 100 million dollars a year at the Cal Bar and wield power galore. Something they will not give up easily.