By Tom Jarvis
The Committee on Legal Education and Admissions Reform (CLEAR) will host a listening conference, which is open to the public, on Wednesday, November 13, from 3 to 5 pm, at Suffolk Law School in Boston. CLEAR, a commission of the Conference of State Court Administrators (COSCA) and the Conference of Chief Justices (CCJ), has hosted these sessions to gather feedback on legal education, the bar exam, and bar exam alternatives.
“The purpose of the listening sessions is to ask anyone who has an interest in any of this to come and speak to us so we can hear their concerns, feedback, and suggestions,” says New Hampshire Supreme Court Chief Justice Gordon MacDonald, chair of the CLEAR committee. “We are literally there to engage stakeholders in this topic about their ideas on how we can improve as a profession.”
Two listening sessions have already been held in Washington, DC, and Albuquerque, New Mexico. Two more are scheduled for October in Los Angeles, California, and Austin, Texas. After the November session in Boston, CLEAR plans to hold listening conferences in New York City, as well as locations in the Midwest and the South.
New Mexico Legal Aid Executive Director (and former 603 Legal Aid Executive Director) Sonya Bellafant, who attended the Albuquerque session, found the experience promising.
“It is incredibly encouraging to see our chief justices prioritizing what can only be described as a dire and immediate threat to our justice system,” says Bellafant. “The New Mexico listening session touched on some of the barriers to the legal profession. Of particular interest in New Mexico is the diversity (or lack thereof) within the profession and the historical basis for the bar examination. Participants readily discussed whether the expense and requisite knowledge of the bar exam can be used as a measurement to ascertain the individual’s ability to practice law professionally and ethically. What was not in dispute was the economic toll of bar exam preparation and costs for people of color, single parents, and low-income students.”
CLEAR consists of nine state chief justices and three state court administrators. The committee is broken up into three working groups: practice readiness, bar admissions, and promoting public interest. The work of the subgroups comprises a broad array of stakeholders from each discipline. They meet periodically and their ultimate task is to provide the full committee with recommendations within their spheres. The committee will then provide their final report to COSCA and the CCJ in July 2025.
“COSCA and the CCJ meet regularly, and since I’ve been Chief, I’ve attended those meetings,” says Chief Justice MacDonald. “At those meetings, there has been a tangible, repeatedly expressed concern amongst the chief justices about the significant challenges our profession faces.”
He adds that those challenges include the increasing number of self-represented litigants in state courts, the difficulty public interest legal organizations face in recruiting and retaining lawyers, the prevalence of legal deserts – large regions with few or no lawyers [see article on page one], and the concern that newly licensed lawyers aren’t fully practice-ready and need additional time to represent clients effectively.
In August 2023, the CCJ and COSCA created CLEAR to explore opportunities for reforming legal education and bar admissions to address urgent challenges in the legal profession. Since state supreme courts regulate the legal profession, a key focus is improving legal education, practice readiness, and bar admission, which includes changes to both the Bar exam and non-exam pathways to practice.
According to the National Conference of Bar Examiners (NCBE), 72 percent of first-time test takers nationwide passed the bar exam in 2023. The highest passage rate in recent years was 82 percent in 2008. For the July 2024 exam, New Hampshire’s passage rate was 75 percent.
In 2017, the NCBE began a project to reevaluate the bar exam. From that came the idea of the NextGen Bar Exam. Set to launch in 2026, the NextGen Bar Exam will replace the Uniform Bar Exam (UBE) used in most states and is designed to better reflect real-world skills.
“The NCBE has done a deep dive into the issue of what skills are necessary for starting lawyers to practice law,” says New Hampshire Office of Bar Admissions General Counsel Sherry Hieber. “They did extensive research, and surveyed supervising attorneys and law schools, gathering data on the skills and substantive knowledge lawyers need when they start practicing law.”
Hieber explains that the NextGen Bar Exam will change the nature of the test, explaining that the current exam requires a lot of memorization whereas the NextGen attempts to echo what lawyers do when they practice.
“The exam will present fact scenarios similar to those faced by new lawyers, and the applicants will work through issues related to those fact scenarios,” says Hieber. “The exam will include questions that test not only substantive law, but also legal research and writing, issue spotting and analysis, client counseling, and negotiation, among other skills.”
Practice readiness is a major concern for chief justices and CLEAR, says Chief Justice MacDonald. Some states are currently exploring non-exam pathways to admission, and many are looking to the University of New Hampshire Franklin Pierce School of Law’s (UNH Law) Daniel Webster Scholar (DWS) Honors Program – the first curricular-based bar alternative program in the nation – which launched in 2005.
A collaborative effort of the New Hampshire Supreme Court, the New Hampshire Bar Association, the New Hampshire Board of Bar Examiners, and UNH Law, the program is designed to provide a comprehensive, client-ready legal education. It closes the gap between legal education and legal practice through robust simulations, regular assessments, and hands-on practical training from volunteer lawyers, judges, and court staff.
“I think it’s scalable for other states to a point,” says DWS Director and UNH Law Associate Dean Courtney Brooks, who sits on CLEAR’s Practice Readiness Working Group. “You would need to modify some of what we do. Ours is not just a bar alternative – it’s a practice readiness program. We have bar examiners who are heavily involved, and that works well for us. We’ve had great success.”
Brooks continues: “I do think you could expand it out, but I also see that there’s a lot of value in the supervised practice pathways that are emerging in some states. In these programs, law students, or recent graduates, work under an attorney’s supervision and compile a portfolio of work. The supervisor is then heavily involved in assessing the student’s competence to practice law. In some states, the supervised practice must be in public service, thus helping to fill a justice gap.”
Chief Justice MacDonald says in many ways, the DWS Program is serving as a model that other states are now considering.
“It’s a really unique curriculum, layering two years of significant experiential learning on top of one year of doctrinal learning in their first year,” he says. “I can tell you from having been a private practitioner, having been attorney general, and now a Supreme Court Justice, and at each stage employing DWS graduates, they are qualitatively better than other law school graduates because of the experiential learning opportunities that they’ve had. Indicia of its success are how these lawyers are grabbed up as soon as possible. Their employment success and career success are amazing.”
In addition to the DWS Program, and the supervised practice pathways being considered in other states, there may be other solutions that CLEAR can recommend to the CCJ and COSCA.
“I would like to ask all interested stakeholders to please attend on November 13,” he says. “Everyone in New Hampshire who is interested, we would love to have your attendance.”
The feedback gathered from these sessions will help guide CLEAR’s final recommendations. These recommendations could shape reforms that impact new lawyers for years and address the significant challenges facing the legal profession.
You can attend the listening conference online or in person at Suffolk Law School in Boston. For questions and to RSVP, contact Danielle Hirsch at dhirsch@ncsc.org. For more information on CLEAR, visit ncsc.org/consulting-and-research/areas-of-expertise/access-to-justice/clear.
Chief Justices Grapple with Eroding Trust in Courts
According to Chief Justice Gordon MacDonald, the chief justices around the country feel a growing sense of urgency around the issues that COSCA, the CCJ, and CLEAR aim to address. He notes that this urgency is reflected in recent public opinion polling conducted through the National Center for State Courts.
“Every year for the past 10 years or so, the National Center has conducted a professional public opinion survey that measures how various public institutions, such as Congress, the president, and state institutions, are perceived in terms of public trust and confidence,” he says. “State courts always did relatively well. But in the last couple years, confidence in state courts has declined, as it has for many of our federal institutions. In 2022, for the first time, a plurality of respondents said they do not have faith in the proposition that there is equal justice for all.”
Chief Justice MacDonald continues: “Partly in response to that, the National Center held focus groups around the country last year. In each region, all representing different demographics, the one thing we kept hearing over and over is the justice system is seen as a system of haves and have-nots – a two-tiered system. There are many reasons for that, but the problems we are trying to address with respect to access to justice are certainly part of it. Some people can afford to have a lawyer, and some cannot. The persistence of this issue threatens to further undermine public confidence in what equal justice for all means, what our civil and criminal justice systems mean, and what the rule of law means in the context of our democracy and our constitutional republic. That is part of the urgency that we as chief justices are feeling around this issue.”