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The Secret Benefit of Federal Lawyering

By Jeremy S. Weber

Jeremy S. Weber is a member of the editorial board of The Federal Lawyer. He currently serves as the deputy district counsel for Military and Veterans Affairs Programs at the U.S. Army Corps of Engineers, Sacramento District. He is a retired Air Force judge advocate who served as an appellate judge and law professor at Air University. Weber has numerous law review articles to his name in military and civilian journals. He is a member of the Ohio and Alabama state bars, and hopefully the California bar by the time of this publication. The views expressed are solely those of the author. Recently, I did something out of character. I broke a promise to myself.

In July 1996, I walked out of a convention center in Columbus, Ohio, in a daze. After preparing for and then enduring the two-and-a-half-day bar examination, I swore to myself that I would never take another bar exam. If I hadn’t done enough to pass, I said to myself, I would simply go back to journalism. I did not have it in me to put myself through the stress, exhaustion, expense, and uncertainty of another bar exam.

Fortunately, I handily passed, and I went on to practice law for the next 20+ years as an active duty Air Force attorney. During that time, I was stationed in nine states, the District of Columbia, and a foreign country. I brought my Ohio law license with me for each position, always able to practice law without seeking admission to the state in which I was located.1 When I retired, I worked for the Alabama attorney general after having been admitted there through reciprocity, without having to sit for the bar exam.2 My promise to never take another bar exam seemed safe, as long as I remained safely within the borders of Alabama or any other state that permitted admission upon motion.

In 2020, my wife and I realized we needed to move to California to take care of an elderly relative. I was fortunate to find a federal job in California, so I did not need to immediately be admitted to the California bar, but I harbor long-term career goals that require me to be licensed in the state. California does not offer admission on motion or otherwise offer exemptions from the bar exam requirement.3 So, with great reluctance, I broke my promise to myself and registered for the February 2022 California bar exam.

The experience was … well, it’s over. It certainly wasn’t any easier taking the bar as a 51-year-old attorney than as a 25-year-old recent graduate, despite having practical experience in many of the exam’s subject areas. Studying at night and on weekends while working full time was every bit as exhausting as I remembered from the previous exam. It took every bit of discipline I acquired over the years to stick to my schedule. In the end, I did what I needed to do and gave myself every opportunity to do well on the bar exam. However, it wasn’t without great personal costs in terms of time, money, and health.

The experience gave me a renewed appreciation for the portability that federal attorneys enjoy. Because the majority of federal attorneys do not appear in state court, most positions simply require admission to the bar of any state or federal court. As a result, federal attorneys enjoy a degree of flexibility that most attorneys can only envy. Many federal attorneys can move from position to position and location to location without ever needing to worry about state-to-state bar requirements.

This is an enormous benefit, particularly as the last two-plus years have revealed the importance of locational flexibility in many peoples’ lives. Many people would like to relocate, but few would do so at the cost of taking another bar exam. I am not alone in realizing the simple fact that bar exams are no fun. The usefulness and cost of state bar exams has been the subject of extensive scholarship recently.4 As one law professor noted, “to write merely that the bar exam is the subject of criticism would be a colossal understatement.”5 Opinion in the legal community has shifted noticeably in favor of some form of license portability or admission without taking multiple bar exams. One poll showed that 58.3 percent of attorneys polled favored them being able to easily attain admission on motion to other states, while an additional 40.8 percent favored multistate or national licensing.6 Only 0.9 percent of respondents favored state-by-state licensing without reciprocity.7 This sentiment has been reflected in the policies of 42 states that permit some sort of admission for attorneys licensed in another state without sitting for another bar exam, though many of these states require the other state to permit admission on motion under equal terms.8 Even my new home state of California, which requires passing the state bar exam in all but a very narrow set of situations,9 has begun to consider changes to the exam, though admission on motion does not seem to be on the table for now.10

In recognition of the need for portability, 40 states have adopted the Uniform Bar Examination (UBE), an exam coordinated by the National Conference of Bar Examiners that is intended to allow one’s score to be transferred to other UBE jurisdictions.11 However, even the UBE has not provided full mobility for attorneys due to factors such as holdout states, different state scoring requirements, and the fact that states

only permit scores to be transferred within a certain timeframe, sometimes as short as two years.12 Even when a UBE score can be transferred to another jurisdiction, an attorney generally must follow the new state’s licensing procedures, which can include expensive and lengthy admission requirements.

One area in which portability has commendably made some gains concerns military spouses. To date, at least 40 states have adopted measures to license military spouses who accompany a military member to a new state without passing another bar exam.13 These measures have not been extended to people like me—current or former military attorneys who seek to relocate to a state other than their original state of bar admission after their military service—though proposals to offer special concessions for military attorneys have been raised.14 For me, as is the case for most attorneys, portability remains more of an illusion than a reality.

Bar exams come at a cost, both financial and otherwise. I spent roughly $5,000 for a bar prep course (I chose one of the cheaper options), a background check, the test fee, the registration fee, and other miscellaneous expenses. Money, however, was the least of the “costs” imposed by the exam. The hundreds of hours I spent preparing for the bar exam carried physical and mental costs in terms of inactivity, strain, sleeplessness, and stress. Many people report that the strain of such intense and prolonged preparation, with so much at stake, tends to damage relationships with the applicant’s loved ones.15 And, of course, all of this could have been for nothing if I did not pass. For the July 2021 exam in California, the overall pass rate was 53 percent (which was up markedly from 39.6 percent in February 2021).16 Other states ranged from a low of 52.6 percent (Alabama) to 86.3 percent (Utah).17 Not everyone passes, including many people who would undoubtedly be fine lawyers. At best, unsuccessful bar examinees face a wait of five to seven months until the next exam, with the toll that takes on mental and financial health. At worst, some never pass the bar exam and are forced to take non-lawyer work, meaning they essentially squandered three years of law school and the large bill that comes with it. As I stood in line for the California bar exam, I talked with two applicants, both of whom had failed the July 2021 exam. I couldn’t help wondering what their lives were like for the past seven months as they had to go through another round of preparation while presumably not being able to find work, with the prospect of student loan repayments looming and no guarantee they would pass this time around.

Serving as an attorney for the federal government is attractive for many reasons. Federal attorneys have the opportunity to work on issues of national importance, advising on and litigating high-stakes matters. Many federal positions offer a better work/life balance than the typical private practice legal job. The federal government offers great benefits to its employees.

Flexibility is not often mentioned on the list of reasons in favor of practicing law for the federal government, but it should be. Like me, most people have a need to move at some point during their professional career, if not several times. With the perspective of time and distance, we can forget how traumatic the bar exam is. Until and unless license portability becomes a reality, never having to take a second bar exam is an enormous benefit, one federal agencies should continue to exploit in attracting legal talent. 

Endnotes

110 U.S.C. § 9037(b) provides that an Air Force judge advocate must be a member of the bar of a federal court or the highest court of a state. 2Rules Governing Admission to the Alabama State Bar, Rule 3(a), https://admissions.alabar.org/rule-3. 3See generally Rules of the California State Bar, Title 4, Division 1, https://www.calbar.ca.gov/Portals/0/documents/rules/ Rules_Title4_Div1-Adm-Prac-Law.pdf. California does, however, offer a one-day essay-only “Attorneys’ Examination” for attorneys who have been admitted to the active practice of law in a United States jurisdiction at least four years immediately prior to the first day of administration of the examination and who have ben in good standing during that period. Rule 4.3(C). 4See, e.g., Marsha Griggs, An Epic Fail, 64 How. L.J. 1 (2020) (asserting that failures in administering state bar exams during the COVID-19 pandemic revealed that alternative paths to bar admission should be offered); Nicci Arete, The Bar Exam’s Contribution to Systemic Inequalities in Access to Justice Around the World, 30 Wash. Int’l L.J. 324 (2021) (arguing that standardized bar exams unfairly exclude people from marginalized communities). 5Ben Bratman, Improving the Performance of the Performance Test: The Key to Managing Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565, 565 (2015). 6Stephen C. Sieberson, Alex Fayad, and Carola Cintrón-Arroyo, Changing Times in the Legal Profession – A Survey of Practicing Lawyers, 50 Creighton L. Rev. 443, 448 (2017). 7Id. at 447. 8National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements, ch. 15 (2022), https://reports. ncbex.org/comp-guide/charts/chart-15/. 9The State Bar of California, Special Admissions, https://www.calbar. ca.gov/Admissions/Special-Admissions. 10“California Officials Consider Bar Exam Options, Possible Changes,” Bloomberg Law (Jul. 21, 2021), https://news. bloomberglaw.com/business-and-practice/california-officialsconsider-bar-exam-options-possible-changes. 11National Conference of Bar Examiners, “Jurisdictions That Have Adopted the UBE,” https://www.ncbex.org/exams/ube/. 12See Dennis R. Honabach, To UBE or Not to UBE: Reconsidering the Uniform Bar Exam, 22 No. 2 Prof. Law. 43, 44 (2014): "[F]or many, the UBE cannot deliver what it promises, primarily mobility. Many of the largest jurisdictions have not adopted and seem unlikely to adopt the UBE; a passing score in one UBE state may well not suffice in another; and the time limitation on UBE score portability introduces an element of inequity, for bar applicants with different financial resources." See also Suzanne Darrow-Kleinhaus, Portability of the UBE: Where is It When You Need It and Do You Need It At All?, 37 Touro L. Rev. 665 (2021) (noting limitations to UBE portability revealed by the COVID-19 pandemic). 13Eric Cervone, “Bar Reciprocity for Military Spouses,” American Bar Ass’n After the Bar: Professional Life, https://www. americanbar.org/groups/young_lawyers/publications/after-the-bar/ professional-life/bar-reciprocity-for-military-spouses/. 14See, e.g., Michael G. Swansburg, Jr., Note, A Solider’s Heart and a Lawyer’s Mind: An Argument for Granting Reciprocity to America’s Former JAG Attorneys, 48 U. Louisville L. Rev. 613 (2010) (asserting that every state should promulgate a blanket admissionon-motion policy for the benefit of qualified former active-duty judge advocates). While serving in the military, judge advocates may be permitted to provide legal assistance to military members and

other eligible beneficiaries in a state without being admitted to that state’s bar. 10 U.S.C. § 1044(a). 15Scott Goins, “Advance Bar Prep Part Two: Friends and Family” (May 1, 2021), https://www.johnmarshall.edu/20210501-lawschool-brief-advance-bar-prep-part-two-friends-and-family/. 16National Conference of Bar Examiners, “Bar Exam Results by Jurisdiction,” https://www.ncbex.org/statistics-and-research/barexam-results/. 17Id.

Beltway Bulletin continued from page 4

judges, juries, and court personnel to make decisions without fear of intimidation or violence. As the threats have increased, so has the need for countermeasures, and until the causes of the increased threats are addressed, it is imperative that we protect against their intended effects. The FBA, through the Government Relations Committee, will continue to urge Congress to prioritize and provide funds to ensure the safety and security of all those who work and have business in our federal courts. 

Endnotes

1United States Courts, Judiciary Affirms Need for Bill to Protect Federal Judges (July 14, 2021), https://www.uscourts. gov/news/2021/07/14/judiciary-affirms-need-bill-protect-federaljudges; United States Marshals, Judicial Security (Feb. 17, 2022), https://www.usmarshals.gov/duties/factsheets/judicial_sec. pdf. 2Nate Raymond, U.S. Judiciary Receives Big Security Funding Boost in Spending Bill, Reuters (Mar. 11, 2022), https://www.reuters.com/legal/litigation/us-judiciary-receives-bigsecurity-funding-boost-spending-bill-2022-03-11/.

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