In Re: The Arkansas Bar Association

IN RE: ARKANSAS BAR ASSOCIATION

00-195 ___ S.W.3d ___

Supreme Court of Arkansas

Delivered November 30, 2000

Petition of the Arkansas Bar Association; granted as modified.

Per Curiam. We have before us the petition of the Arkansas Bar Association (Association) recommending changes in the content and structure of the Arkansas Bar Examination. The Arkansas State Board of Law Examiners (Board) has filed their response to that petition. We will address each aspect of the examination process individually.

MULTISTATE BAR EXAMINATION (MBE)

This examination is presently part of the general Arkansas Bar Examination. It is a one-day, 200-question, multiple-choice examination given nationwide on the last Wednesday of February and July of each year. It tests the subjects of: Constitutional Law; Contracts; Criminal Law and Procedure; Evidence; Real Property; and, Torts. This examination is prepared and graded under the auspices of the National Conference of Bar Examiners (NCBE). It is an examination based upon an understanding of fundamental principles of law that are recognized across the states, and does not emphasize local statutory or case law. The Association and the Board recommend its continuation as part of the examination process. We agree.

MULTISTATE PERFORMANCE TEST (MPT)

This is an examination recently developed by NCBE. To date, it has been adopted by 26 jurisdictions. Its objective is to measure "fundamental lawyering skills." The Board and the Association agree that the subject of lawyering skills does not receive sufficient emphasis in theexisting examination process. Both recommend the adoption of two MPT questions.

Each 90-minute MPT question is carefully designed, pretested, and calibrated after each examination. The MPT requires the applicant to exhibit various skills such as: problem solving; legal analysis and reasoning; factual analysis; communication; organization and management of a legal task; and, recognizing and resolving ethical dilemmas. The written answers to each MPT question would be graded by Arkansas examiners in accordance with grading guidelines prepared by NCBE. We find merit in the addition of the MPT to the examination process and direct the Board to include two MPT questions effective with the July 2002 general examination.

From time to time, the MPT question is directed to the Model Rules of Professional Responsibility. Accordingly, with the adoption of the MPT we will be obliged to amend Rule IX of the Rules Governing Admission to the Bar (Rules) to include the subject of ethics. We will issue an implementing per curiam order for that purpose at a subsequent date.

ESSAY QUESTIONS

Presently, 11 subject areas are mandated by Section A of Rule IX of the Rules and are tested by essay questions. The subjects are: Business Organizations; Commercial Transactions; Criminal Law and Procedure; Constitutional Law; Torts; Property; Wills, Estates, Trusts; Evidence; Practice and Procedure; Equity and Domestic Relations; and, Contracts. Neither the Association nor the Board suggest any change in the array of subject areas to be tested, except the addition of ethics as required by the adoption of the MPT. Further, both agree that the subjects of Constitutional Law, Evidence, and Contracts should be tested exclusively by the MBE, and the remaining 8 subjects should be tested by way of essay questions.

The Association proposes that all 8 essay questions be drafted and graded under the directionof the Board. In this connection, the Association encourages improvement of the essay preparation and grading process to include more than one individual dealing with each subject area.

The Board argues that 3 subject areas (Practice and Procedure; Business Organizations; and, Commercial Transactions) should be presented to the examinees by way of a Multistate Essay Examination (MEE) question. The MEE is a set of essay questions prepared by NCBE. It is presently in use here, as well as 14 other jurisdictions. The remaining 5 subject areas would be prepared and graded as directed by the Board. The Board also recognizes the need to improve the manner in which essay questions are prepared and graded.

We agree with the Board and the Association that the essay portion of the examination should be reduced to include the following 8 areas: Business Organizations; Commercial Transactions; Criminal Law and Procedure; Torts; Property; Wills, Estates, Trusts; Practice and Procedure; and Equity and Domestic Relations. We find the Board's arguments persuasive in regard to utilization of the MEE for the subject areas of Practice and Procedure, Business Organizations, and Commercial Transactions, and direct the Board to make use of that testing vehicle for those subject areas. The remaining 5 subject areas shall be developed and graded under the direction of the Board.

The changes outlined in the preceding paragraph will be effective with the July 2002 general examination.

We encourage the Board to study the options available to enhance the process of developing and grading essay questions. To the extent that this study reveals the need for additional personnel or resources, or rule changes, we further encourage the Board to report on such needs as soon as practicable.

The Association proposes that applicants have 45 minutes to respond to each essay question. The Board argues that 30 minutes is adequate. We believe the Association has persuasively argued that the provision of 45 minutes in which to respond to an essay question is more appropriate. Accordingly, the Board is directed to allow the applicants 45 minutes in which to respond to each of the 8 essay questions, effective with the July 2002 examination.

MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION (MPRE)

The MPRE is a test devoted exclusively to ethical issues arising in the context of the Model Rules of Professional Conduct or the Code of Judicial Conduct. The MPRE is prepared, conducted, and graded through the authority of NCBE. It is given 3 times a year at numerous locations across the United States, generally at every accredited law school. Both the Board and the Association have concerns about our present passing standard, which is a scaled score of 75, one of the lowest in the country. We believe that the standard for passing this examination should be high. We adopt the Board's recommendation that the minimum scaled score on the MPRE should be 85. Section B of Rule IX of the Rules contains the existing language concerning the Multistate Professional Responsibility Examination. In order to provide adequate notice to potential applicants for admission to the Bar of Arkansas, implementation of this change should be deferred. We will issue a per curiam order at a subsequent date to effectuate this change.

IMPLEMENTATION

We will leave to the Board decisions concerning the scheduling of the various components of the examination, taking into consideration the time and date requirements that may be set by NCBE in connection with each of the their examinations.

We also observe that the new version of the general Arkansas Bar Examination will generate10 written answers, i.e., 2 MPT answers and 8 essay answers. The Board is composed of 11 members, one of whom has historically been assigned to each of the 11 subjects. We seek comment from the Board regarding the responsibility of the one examiner who is not assigned to grade an individual subject area.

The Court is aware that the addition of the MPT will require a complete revision of the existing scoring methodology. Particularly, the Board is called upon to develop and present to the Court, at the earliest possible opportunity, a proposed method of correlating the three scores (MPT; MBE; and Essay) in order to reach a pass/fail decision.

As noted elsewhere in this order, it will be necessary to amend Rule IX of the rules in order to implement these changes. In addition, Rule IV, and Regulation III, will need to be amended because they reference our existing passing standard, 75%. It is presumed that the Board will recommend, and this Court will adopt, some measure other than that to accommodate the incorporation of the MPT in the examination regimen. In such case, appropriate per curiam orders will issue at a subsequent date.