New paths for licensure: California confirms Kaplan bar exam, Arizona launches second chance program
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As California grapples with budget issues and Arizona faces a shortage of lawyers, both states announced shifts to their licensure protocols, with ripples potentially impacting other jurisdictions.
On Thursday, the cash-strapped State Bar of California voted to move ahead on a contract with Kaplan North America to create a proprietary bar exam after resolving copyright issues with the National Conference of Bar Examiners. On Wednesday, in an effort to close the access to justice gap, the Arizona State Supreme Court ordered that those who come within 10 points of a passing bar exam score can earn licensure after performing two years of supervised practice in a government position, at a nonprofit or in a rural area.
California’s new exam
Public discussions for California’s plan for Kaplan to create an exam started in May but were put on hold after the NCBE wrote Kaplan, reminding the test prep company that creating questions based on NCBE-produced tests could violate their licensing agreement.
After negotiating with Kaplan, “we believe that the copyright concerns have been addressed,” Bridget Gramme, special counsel at the State Bar of California, said at the Thursday board of trustees meeting.
As of Friday morning, the NCBE had not seen the terms of the proposed agreement or the Kaplan-developed exam questions, wrote Sophie Martin, NCBE communications director. “Having communicated our concerns to Kaplan and the state bar, we assume that any new examination developed by Kaplan will respect our contract and intellectual property rights.”
“This is a very big development because it sets up a competitor to NCBE,” Deborah Jones Merritt, professor emerita at the Ohio State University Moritz College of Law, told the ABA Journal in an email. “California’s move may also encourage states to consider more innovative approaches.”
The state’s admissions fund faces insolvency in 2026, with its 2024 budget forecasting a $3.8 million deficit while ending this year with $3.3 million in reserves, according to a May 16 memo.
The terms of the five-year, $8.25 million contract include Kaplan delivering a multiple-choice question test to be administered in February 2025, along with applicant and faculty study guides by fall of 2024, Gramme said at the Thursday meeting. Essay and performance test questions will be delivered in 2026, and Kaplan must exit the retail bar prep business in California.
Kaplan doesn’t comment on potential deals or transactions, Russell Schaffer, communications director, wrote to the ABA Journal.
The NCBE “will do what we reasonably can to support California’s bar examinees, but once California implements the new exam, support will need to come from the state bar,” the NCBE’s Martin wrote.
Ripple effect
California tests more bar candidates than any other state but New York. In July 2023, 7,555 examinees took the test; 3,944 took it in February, according to the NCBE.
The California move has implications for Nevada, where the state supreme court posted a three-pronged plan open for public comment that includes developing its own multiple-choice exam. In May, there were talks that Nevada could piggyback on California’s Kaplan-created test.
“Other states have shown interest in following Nevada’s lead,” OSU’s Merritt wrote.
“Together, California and Nevada could show that large and small states and every jurisdiction in between can produce valid, reliable and fair licensing exams,” wrote Joan Howarth, emerita professor at University of Nevada Las Vegas William S. Boyd School of Law and the author of Shaping the Bar: The Future of Attorney Licensing, in an email to the ABA Journal.
Since the NCBE-developed Uniform Bar Exam will be sunsetting in 2028, state bars must replace it. To date, 21 jurisdictions have committed to the NCBE’s NextGen bar exam, which will be administered beginning in 2026.
Apprenticeships in Arizona
Meanwhile, the Supreme Court of Arizona ordered the launch of the Arizona Lawyer Apprentice Program as a way to boost the number of lawyers “serving the public in rural Arizona and in public law firms.” The program starts Sept. 1.
Arizona is 49th of 50 states in lawyers per capita, according to the order. “The dearth of legal professionals negatively impacts not only access to justice and the effective operation of the justice system, including speedy case resolution, it also reduces economic growth.”
Arizona’s cut score for the Uniform Bar Exam is 270, 10 full points higher than neighboring New Mexico and Utah, making moves to those states tempting for would-be lawyers.
Under the order, graduates of ABA-accredited law schools who scored between 260 and 269 on the Uniform Bar Exam could be paid to practice under the supervision of an experienced Arizona attorney for a minimum of two years for 30 hours a week in an underserved area.
“The Arizona Supreme Court’s decision to create an attorney apprenticeship program is an innovative compromise in the national dialogue around bar exam cut scores and alternative pathways to licensure,” Stacy Leeds, dean of the Arizona State University Sandra Day O’Connor College of Law, told the ABA Journal.
The Arizona Supreme Court’s Certification and Licensing Division will oversee the program, Alberto Rodriguez, Arizona Supreme Court communications director, told the ABA Journal in an email.
Already, “some prosecution and defense government law firms have shown interest,” he wrote. Generally, between 40 and 80 test-takers score between 260-269, he wrote. In Arizona, 464 examinees sat for the bar exam in July 2023 while 238 took it in February, according to the NCBE.
Trimming the cut score?
Arizona officials anticipate sharing their experience with other jurisdictions, Rodriguez wrote, and the program may open up a broader conversation about cut scores.
“Since the UBE tests general principles rather than the law of any state, the varied passing scores suggest protectionism in some states,” OSU’s Merritt wrote. “Why do some states require a score of 270 to pass, when others have found that a score of 260 demonstrates minimum competence?”
Howarth agrees. “Arizona should use the 260 cut score or passing score for everyone, as many states have done for decades without any problems or reduction in lawyer competence,” she wrote. “Arizona should also protect the public by requiring supervised practice experience for every new lawyer.”
The state’s moves come after the council of the ABA Section of Legal Education and Admissions to the Bar approved a policy shift in May that now allows alternate methods of licensure beyond the traditional bar exam to be considered by ABA-accredited law schools. (While the ABA controls accreditation of law schools, lawyer licensing is handled by individual jurisdictions.)
Other states have also begun to experiment with alternatives.
Oregon’s new Supervised Practice Portfolio Examination, which allows ABA-accredited law school graduates to join the state’s bar by working closely with a supervising attorney instead of taking the bar exam, is gaining traction with candidates and potential employers.
In March, the Washington Supreme Court approved, in concept, additional pathways to the bar involving supervised practice.
