In First, Mass. Adds ‘Access to Justice’ to Bar Exam

Starting in July 2016, prospective lawyers taking the Massachusetts bar exam will be tested not just on traditional topics such as constitutional law, torts and property, but also on access to justice.

On April 25, the state’s Supreme Judicial Court approved a rule adding access to justice to the exam and indicating that applicants will be expected to be familiar with the topic. The rule makes Massachusetts the first state to add this topic to the bar exam.

The new rule specifies that exam questions related to access to justice may cover these topics:

Landlord-Tenant, including evictions, affirmative defenses and counterclaims, and fee-shifting statutes; Foreclosures; Divorce, including child custody, support, visitation; Termination of Parental Rights; Domestic Abuse; Guardianship and Conservatorship; Consumer Matters, including debt collection, predatory lending and unfair or deceptive practices; Health Care Proxies, Power of Attorney, Advance Directives; Due Process doctrines related to fair hearings, civil commitment and civil right to counsel; Representation of nonprofit organizations; and Ethical rules including Massachusetts Rules of Professional Responsibility 1.2, 1.5, 1.14, 1.15, 4.3, 6.1, 6.5 and Limited Assistance Representation.

The rule came about through the recommendation of the Massachusetts Access to Justice Commission. The commission reasoned:

The Bar Examination’s goal of ensuring that new lawyers are minimally competent to enter the profession also requires that new lawyers are prepared to solve the civil problems most often faced by low and middle income people. Given the changing nature of the legal profession and the Justice Gap, it is essential that new lawyers in Massachusetts be prepared to handle cases and provide assistance in the key substantive areas in which the Justice Gap is prominent. Lawyers ill-equipped to work in these areas will be ill-prepared to handle cases that might produce income and be essential to their professional survival, particularly those in solo practice or small firms. They also will be unable to provide needed pro bono assistance.

The commission’s report recommended that testing on access to justice be part of the essay portion of the exam. It offered several illustrations of possible essay questions, such as this:

In a real estate transaction the contract calls for delivery of the property free of tenants, but a tenant reports that there are conditions in need of repair in her apartment and she has a rent subsidy to assist her with the rent.

The Access to Justice Commission’s recommendation was endorsed by the state Board of Bar Examiners last September.