After every administration of the bar exam, I have the privilege of sending a congratulatory email to all bar passers, encouraging them to reach out to their local bar association for a swearing-in ceremony. I also urge these soon-to-be lawyers to give back to their home communities and to provide their services pro bono to those who cannot afford them.

Every time I send that email, I wonder whether these bar passers are really ready to represent their clients as required by the Rules of Professional Conduct. For example, as enumerated in the preamble:

A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.¹

However, in the case of new lawyers, when the certificate of admission might only recently have been hung on the office wall, next to their law school diploma, what is that level of skill? Increasingly, I have come to believe that many of the recipients of that email are not ready. One second-year law student asked the question: “If you can ‘think’ like a lawyer, does that mean you can ‘act’ like a lawyer?”²

That’s the question asked and answered in a report published last year by the Committee on Legal Education and Admissions Reform (the CLEAR report).³ Endorsed by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA), the report reflects a wide-ranging stakeholder analysis that included feedback from thousands of judges, attorneys, and law students.

What did CLEAR find? They found that the “legal profession is not meeting the needs of the American people.”⁴ The report identifies the huge unmet need — the justice gap — that denies millions of people access to our justice system and leaves them to navigate difficult issues ranging from domestic violence to landlord-tenant concerns without help from a lawyer. To compound the problem, the report notes that changes in the legal profession mean there are fewer attorneys who have the skill set or resources needed to meet these needs.

This crisis in our profession is not new. For example, a 2009 law review article clearly identified the problem:

Many law schools tend to focus on legal analysis to the exclusion of other equally important skills, and therefore give students an incomplete understanding of legal practice. As a result, a common perspective among new lawyers is that law school taught them how to think like a lawyer, but if they wish to actually learn how to be a lawyer, they must do so after earning their degree.⁵

A 2011 analysis in the Sunday edition of The New York Times drilled into the problem, interviewing young law firm associates who had just spent three years and well over six figures on their degrees.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England.⁶

The New York Times analysis went on to note that while law schools are trying to expand programs that provide practical legal training, most faculty have little knowledge of the actual practice of law. At that time, the most recent study estimated that “nearly half of faculty members had never practiced law for a single day,” leading one recent graduate to note that: “What they taught us in law school is how to graduate from law school.”⁷

Fast-forward to today. The CLEAR report survey reveals much of the same. For example, in a survey of more than 4,000 judges nationwide, 54 percent responded “agree” or “strongly agree” when asked whether attorneys in their first five years of practice should receive further training before they are prepared to practice in their court.⁸

From the attorney perspective, there were also similar findings in the CLEAR report. For example, 68 percent of attorneys with less than five years of experience and nearly 58 percent of those with more than five years of experience said the bar exam was not a test of the skills needed in legal practice.⁹ No doubt those less experienced lawyers wished that law school had taught them how to act like a lawyer and not just think like one.

What’s the solution? The CLEAR report provides a detailed blueprint that begins by aligning the many stakeholders who must play a role, ranging from state supreme courts to law schools to the practicing bar. In particular, CLEAR identifies state supreme courts, as regulators of the legal profession, as a key driver for the reforms needed to confront this crisis, train lawyers that act like lawyers, and address the justice gap. This is a challenge I enthusiastically accept, and I welcome the support of the State Bar as Michigan examines solutions that might work for us.

The report makes a wide range of recommendations. Uniformly implementing these recommendations across 56 independent jurisdictions that license American attorneys will be a challenging endeavor.¹⁰ Nonetheless, I encourage members of the bar to read the report and review all of the recommendations. My focus in this article is on Recommendation 6: Reform bar admissions processes to better meet public needs.¹¹ However, I would stress that these recommendations must not be applied in a vacuum; they must be connected with other recommendations and targeted to address the justice gap.

Given the Supreme Court’s role in licensing lawyers, the Court is ideally positioned to work with the Board of Law Examiners to reform how new lawyers are educated and prepared to practice. Indeed, this process has already commenced in Michigan. The Board of Law Examiners recently investigated alternative pathways to licensure, when informing the Court of its recommendation that Michigan adopt the NextGen UBE examination, commencing in July of 2028.¹² The Board will continue to investigate these alternatives. Moreover, the NextGen UBE examination is a step in the right direction. It is designed to better measure the skills new lawyers need to be successful, such as incorporation of more performance tests and short answers, essays, and tasks requiring the application of law and facts from a single fact pattern. The exam was developed by NCBE after years of focus groups and studies involving all areas of the legal profession. In short, the NextGen UBE examination is designed to better test practice skills.

Consistent with the activities ongoing in Michigan, the CLEAR recommendations include:¹³

• Exploring innovative pathways to licensure that enhance practice readiness and address access to justice. Currently, 13 states have either enacted or are considering these reforms. For example, the Washington Supreme Court has “adopted in concept” a pathway in which “students would take experiential law school courses, complete 500 hours of work as a licensed legal intern, and submit to bar examiners a portfolio” of that work.¹⁴
• Developing passing scores for the NextGen UBE using evidence-based standards. While public protection remains paramount, we must recognize that high passing scores can potentially screen out qualified candidates, contributing to the shortage of competent, licensed lawyers. For example, the report notes that from “2009 through 2018, California alone screened out more than 12,000 qualified candidates who would have passed the bar exam in other jurisdictions.”¹⁵ The Michigan Board of Law Examiners is working with a nationally renowned psychometrician to ensure that Michigan’s cut score is reliable, evidence based, and not unduly rigid while protecting the public.
• Consider allowing third-year law students to take the bar exam during law school. This concept adopts a testing approach used by the medical profession in which students take exams in three stages, with the first two administered during medical school. Students can only take the last step if they pass the first two and graduate. The Nevada Supreme Court is looking at a three-stage testing approach that includes a “foundational knowledge” multiple-choice test that students could take after completing about half of the credits in the JD curriculum.¹⁶ The second component is a “Lawyering Performance Examination” taken after graduation, while the “third component, 40-60 hours of supervised practice including client responsibility, could be completed either during law school or after graduation.”¹⁷
• Supporting score portability by exploring how to accept other jurisdictions’ determination of competence. The challenge in this case is that while virtually all states allow reciprocity, “there is no set portability or reciprocity for those who graduated through an innovative licensure program.”¹⁸ Clearly, this reality means that any new approach to licensing would need to have a portability component. Otherwise, participants would have to “sit for the bar exam if they want to practice in another state.”¹⁹ Michigan currently accepts experiential practice licensure for admission without examination as long as the applicant has practiced for three years where licensed and has no pending bar complaints.²⁰ Other states need to follow suit.
• Carefully reviewing character and fitness requirements to streamline the process and focus on information that meaningfully predicts misconduct. This evaluation is vitally important because the result has a direct impact on protecting the public; however, this recommendation is difficult because research tells us that the current process “provides minimal predictive value.”²¹ Moreover, we also know that many law students who might need mental health treatment do not seek help “due to concerns about bar admission.”²² This is a specific area of concern that we have taken steps to address. Michigan removed its mental health question from the State Bar application. Further, the Board of Law Examiners regularly emphasizes with law schools the importance of wellness and seeking menta health treatment. The Court and the Board of Law Examiners remain open to partnering with the State Bar in examining potential reforms of the evaluation process in a way that balances “public protection with fairness to candidates.”23

These are just a sample of the 18 detailed recommendations in the report targeted at state supreme courts. Every day, my colleagues across the country are tackling this important work — in addition to their regular responsibilities hearing and deciding cases and supervising the administration of trial courts. For our part, Michigan is ready to lead so that new members of the bar can both think like lawyers and act like lawyers. I am committed to working with the State Bar, our Board of Law Examiners, and other stakeholders to reach this goal, increase access to justice, and keep our promise to protect the public.