Monday at the Bar: The Op Ed in the Wyoming Lawyer on the UBE

Since that time we've endured the UBE as the bar exam for Wyoming and started to live with the sour fruits of that adoption.  In this month's issue of the Wyoming Lawyer, the magazine that members of the Wyoming State Bar all receive, an excellent op ed appears regarding how Wyoming lawyers are carrying the freight for the massive increase in out of state lawyers admitted to practice here.

Thanks, but no thanks, and oh, why even bother. Wyoming rolls over on the UBE.

Two years I wrote this item about the unfortunate move by the Wyoming State Bar adopting the Uniform Bar Exam:

Lex Anteinternet: Wyoming Adopts the Uniform Bar Exam, and why that'...:     Wyoming Supreme Court in  Cheyenne. Students of legal minutia know that the phrase "to pass the bar", or "to be ca...

I made some predictions at that time, including that the net effect of the UBE would be to increasingly pass off Wyoming's legal work to lawyers in big cities in neighboring states, and that has become true.  Now both defense and plaintiff's work, in the civil arena, has become something in which out of state firms are increasingly involved in.  So litigants who have cases in Wyoming are increasingly, in some instances, using non Wyoming lawyers, and in some instances defendants are being defended by non Wyoming lawyers.  It isn't that these attorneys are better than Wyoming's lawyers.  They aren't.  It's that they are from large cities in some instances.  In my view, Wyoming is being hurt by this as lawyers who know Wyoming's law and live in the state aren't handling as much of this work as they should.

When the UBE was adopted by the Wyoming Supreme Court, a Wyoming component was added in the form of a CLE that new admittees had to take. The concept was that, in the course of a day, they'd be exposed to Wyoming's law. That was always a fairly absurd concept, as it takes years to pick up the nuances of Wyoming's law, and no CLE with topics ripping by in fifteen minute increments is going to do that.

In saying that, I should note that I was part of the process.  While I'm opposed to the UBE and particularly opposed to the reciprocity aspects of it, my very opposition to it ended up causing me to be asked to write for one of the CLE topics.  I agreed to do it, after being approached, as I felt I had little choice.  Having been asked to do it, I could hardly decline, particularly as those who asked me were well aware of my opposition to the entire process.

Due to that, in the most recent issue of the state bar's publication I see that I, along with the other authors of written material for the UBE, have been thanked.  The reason is that the Bar Examiners have now concluded that the CLE requirement isn't worthwhile, so we're just going to admit new members without a state component, other than an expanded introductory pathways requirement.  Those who wasted their time on the written CLE requirement programs, such as myself, have had the futility of their efforts publicly applauded.

Well. . ., thanks but no thanks.  The entire Uniform Bar Exam process is misbegotten and ought to be dumped, and it was always a poorly through.   All this is serving to do is to export Wyoming's legal work to the detriment of Wyomingites.  It's not too late to salvage the situation, but it will become so as fewer and fewer Wyoming lawyers handle substantial cases.  I can easily envision a near future when even the judges will be out of state lawyers who apply for those positions are deemed to be the only ones experienced enough in the topics to handle the tasks.

The Board of Law Examiners, by the way, dumped the CLE requirement as it was ineffective.  That should have been self evident from the get go, as it was quite evident to me, as one of the drafters of a section of it, that the time element of it was so short as to be nonsensical.  There was no way that anyone was going to learn much in that sort of CLE, and there was no test as a part of it.  It was just something a person had to endure.

In its place, the BLE is going to expand the Pathways to Professionalism, a mandatory professionalism course which will be expanded.  Well, quite frankly, programs on professionalism do not  enhance professionalism one iota.

In making this decision, according to the article I read, the BLE was conceding that the law of most states is all the same, and a person can just look it up on the Internet.  Oh really. Well, that's baloney, and anyone who has had the experience of out of state lawyers practicing in a complicated Wyoming case knows better.  Of course, if we persist in this path, it will become very similar to Colorado's law, as that's where the majority of out of state "Wyoming" practitioners live.

Indeed, recently I was in a case which had one such practitioner on the defense side and two out of state lawyers on the plaintiff's side.  The lawyer on the defense side had a practice heavily based on out of state work, and he commented that "he couldn't believe" that Wyoming allowed such simple CLE admission and that he'd think that Wyoming lawyers would resent it.  So, something that's pretty self evident to out of state lawyers practicing in the state apparently isn't to those who are supposed to be manning the gate here.

This entire situation has been a terrible shame.  The concept that Wyoming's bar exam was somehow fatally flawed was poorly thought out, and the Wyoming Supreme Court really bought a line of baloney in adopting the UBE sales pitch.  There's no excuse for it, and the situation should be reversed before the damage, which will take years to undo, becomes any worse.  It would be simple to repair.  Simply require that any applicant to the Wyoming bar take a test on Wyoming's law.

Wyoming has a lot of really good lawyers, still.  And we have a law school, still.  We can craft a Wyoming component and test those who wish to practice here on Wyoming's law.  We should.

If we don't, our current pathway will have a logical development.  Within a decade nearly all serious litigation will be handled by out of state lawyers, and Wyoming's lawyers will reduce in number and be reduced to minor matters and criminal matters.  The judges will start to come from out of state too, and our law will start to resemble Colorado's, whether we want it to or not. The law school of which so many Wyoming lawyers are graduates, will go by the end of the next decade, as the uniqueness of Wyoming's law will decline, and there will be no reason to have an institution that serves no state specific purpose.

Wyoming Adopts the Uniform Bar Exam, and why that's not only a change, but a bad idea

 

 Wyoming Supreme Court in  Cheyenne.

Students of legal minutia know that the phrase "to pass the bar", or "to be called to the bar", refers to an actual physical feature in an English courtroom.  Indeed, it's a feature in American courtrooms today. Courtrooms have a "bar", basically a fence, that separates the gallery from where the litigants and their lawyers, and the judge and the jury, sit during a trial.  When lawyers were admitted to practice, back in antiquity, they were "called to the bar" and allowed to "pass" it.  That is, their admission to practice meant that they were part of the privileged few who were allowed to open the gate and walk through, if they did not as a litigant.  

How a person "passes" the bar has differed over the years, but it's always involved some course of study, either through a law school or under the tutelage of a lawyer, and a species of examination by the court to which the applicant proposes to practice.  In the United States, as we're a federated republic, each state has controlled that process since there was a country.  Prior to that, each colony did.  So, for example, a lawyer in 1700's Virginia could not freely practice in 1700's New York, which  is equally true of Virginia and New York today.  You have to pass the state's bar.  The sole exception is probably found in patent law, which has its own bar, with that bar being a Federal one.

States have had different systems, as noted, for admitting new lawyers to practice, but starting in the late 19th Century the American Bar Association undertook a major effort to improve the professionalism of the practice of law, and as part of that it came to certify law schools.  In many states, such as Wyoming, admission to the bar came to normally require graduation from an ABA certified law school combined with a Bar Examination.  The Bar Examination examined the applicamt on the law of the state.  Wyoming's Bar Exam, for example, has always featured state specific topics, although it has featured some national ones too.  Like most states, Wyoming has also required passage of the Multi State Bar Exam, which is a national test that tests on either national topics or general concepts of law.

This has now passed away in Wyoming. The current Bar Commissioners have adopted, and the  Wyoming Supreme Court has approved, adoption of the Uniform Bar Exam in Wyoming. This is a terrible idea.  It's not too late for the State Bar to correct its error, and I hope that it does, although reversing a bad administrative decision is never easy.

The Uniform Bar Exam (UBE) is a national test.  Wyoming's adoption of it means that Wyoming has joined handful of states that will use this exam rather than create one of their own.  No Wyoming specific topics will be tested at all.  None.  In order to gain admission beyond that, an applicant need only to take a CLE on Wyoming's law.

The sole purpose of a bar exam is to provide protection to the public.  Passage of a bar exam in any state means that the passing lawyers are deemed competent to represent clients in that state, but nowhere else.  As Wyoming has a self administering state bar, overseen by the Wyoming Supreme Court, passage of the bar here has been a representation by the State Bar and the Wyoming Supreme Court that those passing the exam are deemed competent to represent Wyomingites, in Wyoming, in Wyoming’s Court, under Wyoming’s law.  Passage of the UBE, with a mere CLE on Wyoming’s law, hardly provides that security as admission to Wyoming’s bar will now completely omit any testing on Wyoming’s law.  And Wyoming's law is highly unique in a number of areas. Wyoming is the only state to use Comparative Fault, as opposed to Comparative Negligence, in tort cases. Wyoming's law on oil and gas tort indemnification is unique.  Wyoming's water law is unique.  I don't know much about the state's criminal law, but to the extent I've had to become familiar with it from time to time in the past, it's been unique. Worker Compensation in Wyoming, a state administered system, is unique.  Our oil and gas law is unique.  Now, thanks the the UBE, the student can safely be that none of this will show up on an examination, and that rater the student will be tested on general concepts, whether nor not they are applicable here, and on general topics, with the old Wyoming specific topics gone.

That this is a bad idea would seem to be self evident in light of the effort, just one year ago, to require new Wyoming lawyers to be adopted by a “mentor”, who would oversee their work for a year and tutor them on the nuts and bolts of practice.  At that time it was thought that new lawyers were so ill prepared to practice law in Wyoming that they were effectively incompetent to do so without the tutelage of a local practicing attorney.  Now the State Bar proposes to let lawyers practice without their even having been tested on Wyoming law.

I should note that there still seems to be some concern that the University of Wyoming’s College of Law is not preparing students to take the Bar Exam, given recent low passage rates, and that this seems to be a silent means of addressing that.  Most applicants to practice in Wyoming, although certainly not all, are graduates of the University of Wyoming.  Indeed, it used to be regarded as a real advantage to admission here to have attended law school here.  In recent years, however, there has been a noted decline in pass rates at the Bar Exam, and the law school itself has indicated that its moving towards not really attempting to teach Wyoming's law.  Indeed, that has been the case in some areas, such as torts, for a very long time. But students who were aiming to practice in Wyoming generally made sure to take Wyoming specific courses, such as Oil & Gas and Water Law.  Water Law actually disappeared from the bar exam a year or so again, perhaps indicting the general direction that things were headed in.   The general attitude now somewhat seems to be that the College of Law does not attempt to teach Wyoming specific topics, and therefore the Bar Exam should likewise omit them.  The thought seems to be that if Wyoming topics are entirely removed, therefore, that passage rates will climb thus essentially allowing failure to dictate what should be tested rather than taught.  Whether that is the case or not, and whether or not that is the impetus behind this effort, some serious consideration of the logical result of this move should be considered.


Indeed, this is such a move in the wrong direction that my suspicion is that it might ultimately lead to the elimination of the law school.  The only real basis, at least in the eyes of the public, for the University of Wyoming having a law school at all is to prepare students to be Wyoming lawyers.  This may not be evident to the faculty of the law school, but that’s how the school is perceived.  There is already a fair amount of discontent with the law school in certain quarters of Wyoming’s populace.  I would note that as a lawyer who is also a stockman, and familiar with the views held in the agricultural and mineral production industries, there is very little sympathy for the efforts of some of the College of Law’s professors who use their positions to support their efforts in opposition to those industries.

Academic freedom aside, if the Wyoming State Bar is not going to test on Wyoming topics, and if the only requirement for admission to the state bar after taking the UBE is to take a Wyoming CLE, then there is no reason for the University of Wyoming to retain the College of Law.  While practicing lawyers may not appreciate it, the general public has next to no sympathy whatsoever for the practice of law and the law school, and  there will be very little reason for the public to support the continued existence of a school which provides no unique Wyoming benefits and which employs some professors who are opposed to basic Wyoming industries.  For example, the College of Law's professor Deb Donahue has taken a radical approach to the topic of livestock on the public domain, essentially opposing its presence, although perhaps she's contributed a real gem of an argument the other way around in one essay when she sappily noted how when she looked out of the window of her Laramie home she wasn't witnessing wildlands the way they had been. . . no kidding. .  she was looking out from a house, the ultimate destroyer of wildland.  At any rate, it's asking a lot for anyone in the agriculture industry to support the existence of a state law school when the students don't have to take any Wyoming specific topics in order to take the bar safely, and when no Wyoming specific topic is a required course, and when no Wyoming specific law is being emphasized.  Members of the agricultural sector, for one, therefore have no incentive at all to support the ongoing existence of the law school and, as there's at least one professor that is a declared opponent of their interests, they have a real incentive to wish the law school's demise.

The same is now true for the oil and gas industry.  There has always been at least one professor at the College of Law who was an opponent, on private time, of some mineral industry activity. And academic freedom dictates that this must be allowed.  But it was also the case that a person could receive a very solid education in oil and gas law, and mining law (and water law) at he university.  It is my supposition that this is still the case. But at least as two of those topics, oil & gas, and water law, an incentive existed to study the topics in that they were on the bar exam.  Water law, as earlier noted, no longer is.  Now oil & gas will not be either.  In the midst of an oil boom, there's no earthly reason to suppose that this course of study in now not needed.  And, again, now this section of the state's economy, which is a huge portion of it, should wonder why bother with supporting the College of Law.    When there are those on the faculty who are industry opponents, an industry of this type probably ought to consider opposing the existence of the college, as the incentive that previously existed to take industry specific classes has now been removed.

Put another way, the University of Wyoming does not have a Medical School.  It does not have a Dental School.  It does not offer degrees in Veterinary Medicine.  Why should it have a College of Law if there is nothing Wyoming-centric about that institution’s education or to the admission to the Wyoming State Bar?

I very seriously doubt the implications of this move have been completely thought out, and if they were this course of action would not have been taken.  I doubt that this move is supported by the majority of the members of Wyoming’s bar.  I suspect that when the topic comes up in conversation with non lawyers, on the rare instances in which that might occur, that the UBE takers will be regarded as lesser lawyers, and I would be surprised if the Legislature did not begin to question why the University of Wyoming needs a law school if there are no Wyoming topics on the bar exam.  Indeed, I cannot think of a reason to support the law school in any fashion, other than that I am a graduate of it, and would think we might be better off taking the same approach we presently take towards dental, medical and veterinary students, in the absence of a real Wyoming State Bar exam. 

I'm not urging the elimination of the law school. I am urging the reconsideration of the UBE.

Postscript:

As anyone following the comments will know, assuming that they're not from here and don't already know it, Wyoming did charge ahead with the UBE and its solution, as described below, for the deficiency of Wyoming topics in the new testing regime was to require a CLE for admission. That's the way things now are.

At least a few lawyers I've spoken to about this are not happy at all about it, to include at least one other who was associated with putting together the CLE, as I was.  CLE topics were limited to about 10 minutes in length.  I fear that all we've done is open the door to malpractice, at best.

But, more particularly, one of my expressed concerns here has already been confirmed.  One lawyer I know well told me that he recently spoke to a Denver attorney who has confirmed that his firm now intends to send out Denver lawyers to each of the rural UBE states, Wyoming, Montana and Colorado. And I'm sure it won't be limited to one.  That will be the beginning of the end of whole categories of work in these states, and the results will not be happy ones for either actual clients or local lawyers.

My prediction on this is that within five to ten years entire classes of significant legal work will now be concentrated in Denver and Denver firms, where previously they were handled locally.  The old traditional firms that aren't aware of this danger will wake up to it within three or four years, but it will be too late for them. By that time, the backers of the UBE will be so entrenched that there will be no going back.

My further prediction is that this will be the end of the University of Wyoming's College of Law.  With the UBE, it is now wholly obsolete and totally unneeded.  The Dean of the College, who was somehow associated with the UBE CLE, sent out a congratulatory letter to all of us who worked on it, showing how ignorant on this development he is.  If we're going to give our work to Denver lawyers, what need have we of a law school here at all?  None.  Lawyers aren't well liked and most people see no reason for state sponsorship of the creation of more.  Now, there really isn't one.

It's the end of an era, to be sure.  Much of the court work and major business work will not be going to Denver. With that, the collegiality of the Wyoming bar will give way to the nasty behavior associated with most.  The need for a local law school has been eliminated.  The concerns of those of us opposed to this development won't even be recalled in short order.