This is an excerpt of an article, footnotes omitted, originally published in the Feb. 2003 issue of The Bar Examiner. The complete text is available at: www.ncbex.org/pubs. Stuckey's article refers to the "MacCrate Report" produced in 1992 after several years of research by the ABA's Task Force on Law Schools and the Profession.

What specifically should we test [on bar admission exams] that is not being tested? We can figure that out by answering two questions: what would the legal profession want new lawyers to know and what would potential clients expect them to know?

If we first ask what the legal profession would want new lawyers to know, perhaps the safest start-ing point would be to test applicants' knowledge of subjects that the American Bar Association already requires approved law schools to teach all students. ABA Standard 302(b) states that law schools must provide to all students "instruction in the history, goals, structure, duties, values, and responsibilities of the legal profession and its members, including instruction in the Model Rules of Professional Con-duct of the American Bar Association." The scope of Standard 302(b) was expanded in 1996 to make it clear that law schools should not limit their instruction about the legal profession to the Model Rules. So far, only a few law schools have adapted their curricula to conform to the new requirements. But if all of these subjects were covered on bar examinations, the law schools would respond more quickly.

The legal profession would be well-served if we also tested new lawyers on their knowledge of topics that are fundamentally important to the legal profession, such as understanding the public's perception of lawyers, the most common complaints by clients about lawyers, the most important indicia of client satisfaction, and the reasons why a lawyer's reputation for integrity is important. Bar examiners should also test law school graduates' understanding of the roles of lawyers, the judiciary, and the rule of law in maintaining a free society. Applicants should be required to demonstrate that they know something about the problems of access to justice in the United States and how the realities of poverty, race, class, gender, and sexual orientation affect such access. Bar examiners might even ask applicants to explain why the legal profession values pro bono and public service.

What would potential clients want their lawyers to know? They might reasonably expect their lawyers to know something about a long list of practice--related topics no matter what type of law they are practicing. A few likely topics might be: knowledge of negotiation techniques and other forms of alternative dispute resolution (or even the differences among negotiation, mediation, and arbitration); principles of persuasive argument; drafting and execution of documents related to the lawyer's areas of practice; communication and counseling skills; and determining under what circumstances a lawyer may try to persuade a client to choose a course of action that is not initially preferred by the client.

Some of my law school colleagues would argue that many practice-related subjects should be learned after graduation from law school. I am certainly open to a dialogue about the most sensible way to balance the obligations of law schools with those of the bar. For example, I have long believed that law schools should reallocate the resources we spend teaching trial advocacy to provide more instruction about transactional and pretrial skills. No lawyer should be appearing in court shortly after graduating from law school, especially not without supervision, but many new lawyers will be involved in transactional work and pretrial tasks such as discovery....Even if the realities of our world change to enable law schools to shift more responsibility for practice-related instruction to post-admission programs, law schools should nonetheless provide law students opportunities to learn about the legal profession and law practice from the day they enter law school. They should help students begin to acquire the skills and values they will need in practice. Separating theory from practice is illogical and counterproductive.

I encourage the National Conference of Bar Examiners and the Conference of Chief Justices to continue striving to improve the preparation of lawyers for practice. I also encourage everyone who plays a role in preparing lawyers for practice to find a copy of the MacCrate Report, dust it off, and begin implementing more of its recommendations.

Roy Stuckey is the Alumni Professional Skills Professor of Law at the University of South Carolina School of Law where he also serves as the Director of the Nelson Mullins Riley & Scarborough Center on Professionalism. This article is reprinted with permission of the author and the National Conference of Bar Examiners.

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