Recently, the State Bar of California announced that it was moving forward with its plans to overhaul the state bar exam despite facing significant hurdles. The announcement came as Kaplan North America, the company initially selected to develop the new exam, unexpectedly requested to withdraw from the project due to intellectual property (IP) concerns raised by the National Conference of Bar Examiners (NCBE). 

The withdrawal is believed to have introduced a new layer of complex challenges. However, the State Bar remains resolute in its efforts to find a solution that will enhance the exam process for future California lawyers.

Ongoing Negotiations and Challenges

According to the program director of the Office of Admissions for the State Bar, Audrey Ching, there is a need to have a proper discussion with both Kaplan and the NCBE to address the IP and contractual issues. Ching emphasized this during a Committee of Bar Examiners meeting.

Ching's update comes after the May incident when the State Bar Board of Trustees was set to discuss the partnership with Kaplan. However, the conversation was postponed after Kaplan received a letter from the NCBE outlining their concerns.

Leah Wilson, the Executive Director of the State Bar of California, explained that a preliminary agreement had been reached with Kaplan to develop a California-specific multiple-choice test. Just before the proposal was to be reviewed, Kaplan requested a withdrawal, citing the NCBE's concerns about intellectual property.

When asked about it, a senior Kaplan spokesperson declined to provide additional information, maintaining a policy of not commenting on potential deals or transactions.

Kenneth Kraus, the NCBE's Corporate Counsel, reiterated in a letter that Kaplan, like other test prep companies, receives licensed, copyrighted MBE test preparation materials, including retired MBE questions. The materials cannot be used to create new multiple-choice questions for any jurisdiction. 

According to the NCBE Director of Communications Sophie Martin, both the NCBE and the California State Bar are seeking a collaborative solution that respects the NCBE's intellectual property rights while maintaining a valid and reliable bar exam.

Future Exam Plans and Contingencies

With the State Bar continuously exploring multiple options for the February 2025 bar exam, there is hope to resolve negotiations with Kaplan and proceed as initially planned. Ching mentioned that the hope around the resolution lies with Kaplan developing multiple-choice questions and the State Bar preparing written and performance test questions.

But if this is not possible, there needs to be alternative options, including using questions from the First-Year Law Students' Examination (commonly known as the "baby bar") or sourcing questions from other jurisdictions that do not use NCBE materials, such as Louisiana and Puerto Rico.

There is an urgency for Kaplan to resolve any issues raised, as highlighted by Ching. While there is time to find a solution, time is limited. Examination staff is already preparing for the possibility that an agreement with Kaplan or another vendor may not be reached.

The State Bar must confirm its intentions by November 1, 2024, to allow the NCBE enough time to print the necessary exam materials for February 2025.

Financial and Logistical Considerations

Besides the current conundrum, there are also financial and logistical aspects of developing a new exam that need to be considered. According to the set agreement with Kaplan there is a maximum budget of $1.475M to be spent annually for the next five years.

On the other hand, continuing with the MBE will cost approximately $1M in 2025 due to an increase in the cost per applicant and other associated expenses. For a more manageable budget the Committee of Bar Examiners recommended in April that the Board of Trustees transition to a more cost-effective exam administration approach.

This could include fully remote online exams, using small vendor-owned test centers, or a combination of both. This recommendation came after the State Bar had already reduced testing sites for the February and July bar exams earlier in the year to cut costs.

The committee acknowledges that while remote exams might be more affordable, they come with their fair share of challenges. These challenges include but are not limited to exam security, uniformity, and fairness, particularly for candidates who may lack access to necessary technology or a quiet testing environment.

Moving on Regardless of the Challenges

This back-and-forth shows the intricate dynamics between licensing organizations, test preparation companies, and regulatory bodies. It also highlights the State Bar of California's determination to modernize the bar examination process, balancing the need for rigorous assessment with the goals of accessibility and cost-efficiency.