345 Franklin Street (415) 795-8795

San Francisco, CA 94102 jsarkar@sarkar.law

November 5, 2020
By U.S. Mail and E-mail
Sunil Gupta, Esq.
Principal Attorney to Chief Justice
Supreme Court of California
Earl Warren Building
350 McAllister Street
San Francisco, CA 94102
Phone: (415) 865-7000
Sunil.Gupta@jud.ca.gov

Re: National Conference of Bar Examiners’ Violations of Gov. Code § 1090

Joint Blue Ribbon Commission on the Future of the California Bar Exam
California Attorney Practice Analysis Working Group

Dear Mr. Gupta,

I am writing to you as our Chief Justice’s principal attorney and liaison with the
State Bar of California (“State Bar”). As you know, my office represents attorney applicants
regarding the California Bar Exam against the State Bar. To administer the bar exam, the
has State Bar partnered with the National Conference of Bar Examiners (“NCBE”), a
private Wisconsin corporation, for nearly a century. Attached to this letter is a copy of my
relevant complaint to the California Fair Political Practices Commission (“FPPC”) for the
NCBE’s violations of Government Code section 1090 identified so far. Because the post
facto prosecution of the violations will unlikely reverse the harm by these conflicts of
interest, I am requesting that our California Supreme Court immediately intervene and
prevent the NCBE from continuing to unlawfully obtain state contracts.
As you know, the State Bar and the California Supreme Court are in the midst of a
study of whether or how to reform the California Bar Exam. To this end, the Joint Supreme
Court/State Bar Blue Ribbon Commission on the Future of the California Bar Exam (“Blue
Ribbon Commission”) is tasked with, among other things, advising the State Bar on
whether to adopt the Uniform Bar Exam (“UBE”) in California. The UBE is promulgated
and administered by the National Conference of Bar Examiners (“NCBE”), a private
corporation which would financially benefit if California were to adopt the UBE.
Despite the NCBE’s direct financial interest in California’s adoption of the UBE, the
Blue Ribbon Commission has designated a position exclusively for the NCBE. This is a clear
conflict of interest in violation of Government Code section 1090. Section 1090 prohibits
financially interested parties from membership on government advisory committees.

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Based on the Blue Ribbon Commission’s Charter, the Commission is directed to rely
upon the findings and recommendations of the California Attorney Practice Analysis
Working Group (“CAPA Working Group”). One of the CAPA Working Group’s members is
the NCBE’s evangelist for the Multistate Bar Examination (“MBE”) and UBE of over 30
years, Gregory G. Murphy. The NCBE’s heavy influence on the CAPA Working Group is
quite apparent in its final report. In addition to the Blue Ribbon Commission’s reliance
upon this report, the Commission has a dedicated position exclusively for the NCBE. The
NCBE’s activities promoting state contracts for the NCBE on both the CAPA Working Group
and the Blue Ribbon Commission clearly violate Government Code section 1090.
As explained below and in the attached complaint to the California Fair Political
Practices Commission, the NCBE’s membership on the CAPA Working Group and Blue
Ribbon Commission is akin to Lockheed Martin serving on official State of California
committees tasked with deciding whether the State should purchase Lockheed Martin
aircrafts. Government Code section 1090 was specifically designed to prevent such
conflicts of interest.
NCBE Is a Government Contractor with a Financial Interest in the Blue Ribbon
Commission’s Recommendations
The NCBE is a private government contractor that promulgates and administers the
UBE. Approximately 36 other states have already granted contracts to the NCBE to
administer the UBE as their sole or primary examination requirement. This has largely
resulted from the extensive lobbying by Mr. Murphy for the NCBE over the past three-to-
four decades. The NCBE collections over $20 million in revenues each year, most likely
from its primarily activity of providing states with its examinations.
The Blue Ribbon Commission’s Charter identifies the adoption of the UBE as the
first priority for the Commission to decide. As the corporation which promulgates the UBE,
the NCBE has a direct financial interest in the Blue Ribbon Commission’s recommendations.
Any potential adoption of the UBE in California would amount to a financial windfall for
the NCBE. More than 12,000 applicants take the California Bar Exam each year, resulting
in the State Bar’s generation of approximately $20 million in annual exam fees. If the State
Bar were to grant the NCBE a contract to administer the entire California Bar Exam, the
NCBE’s profits would increase substantially.

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Gov. Code § 1090 Prohibits the NCBE’s Participation on the Blue Ribbon Commission
Government Code section 1090 strictly prohibits financially interested parties from
government advisory roles, such as a member seat on the Blue Ribbon Commission.
Section 1090 prohibits conflicts of interest in government contracting by members of
advisory committees. It further prohibits aiding and abetting a violation of the prohibition
on self-interested contracts.
Our California Supreme Court held in People v. Superior Court (Sahlolbei) 3 Cal.5th
230 that section 1090 applies “to outside advisors with responsibilities for public
contracting similar to those belonging to formal officers… outside advisors with
responsibilities for public contracting similar to those belonging to formal employees,
notwithstanding the common law distinction between employees and independent
contractors.” The Sahlolbei decision overturned a 2013 appellate court ruling which
permitted an independent contractor to escape liability, finding that the 2013 decision
“did not consider the legislative history or the purposes of section 1090.” The Sahlolbei
Court extended liability to “independent contractors who have duties to engage in or
advise on public contracting.”
The NCBE Testing Task Force is composed of the Chair of the NCBE’s Board of
Trustees, the NCBE’s CEO/President, and several former or current NCBE trustees. Each
of these individuals has a duty to advise the State Bar and Supreme Court to adopt the
UBE. This is a blatant violation of section 1090. If the NCBE is allowed to proceed with
advising the State Bar and Supreme Court to adopt its UBE, the resulting contract will be
void, and the culpable officer will be subject to all of the penalties under section 1090.
As a Commission Within the Judiciary, the Blue Ribbon Commission Must Avoid any
Appearance of Impropriety
California Code of Judicial Ethics, canon 2 requires the judiciary to avoid any
“appearance of impropriety” and “shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.” The judiciary “must expect to
be the subject of constant public scrutiny.”
The State Bar is a public corporation in the judiciary article of our California
Constitution. The Blue Ribbon Commission is a joint commission between our California
Supreme Court and the State Bar, and subject to the authorities governing our judiciary.
Appointments to the Blue Ribbon Commission must therefore be conducted to maintain
the appearance of impropriety, in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.

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By openly designating a position for the financially-interested NCBE on the Blue

Ribbon Commission, our judiciary has given the impression that adoption of the UBE is a
foregone conclusion, and that the NCBE has an undue influence upon our judiciary. If the
Blue Ribbon Commission proceeds with an agent of the NCBE as its member, there will be
no hope that the public’s interests can prevail over the NCBE’s financial interests. The
public is likely to suspect that our judiciary is controlled by a private Wisconsin corporation,
destroying public confidence in the judiciary’s integrity and impartiality.
The Blue Ribbon Commission is Tasked to Rely Upon the Findings and
Recommendations of the CAPA Working Group, Which Illegally Provided
Membership and Advisory Role to an NCBE Lobbyist
Under its Charter, the Blue Ribbon Commission is directed to rely on the findings
and recommendations of the California Attorney Practice Analysis Working Group (“CAPA
Working Group”). CAPA was formed in 2018 to conduct a study of “current information
regarding the knowledge, skills, and abilities needed by entry-level attorneys.” Because
the Blue Ribbon Commission is specifically instructed to use the CAPA Working Group’s
findings and recommendations, any recommendation for a contract arising out of the Blue
Ribbon Commission will be tainted by violations of Government Code section 1090 in the
CAPA Working Group.
It is unclear how Mr. Murphy, who is not a resident of California, licensed to
practice in California, or otherwise apparently connected with California, landed a position
on the CAPA Working Group as well as another State Bar committee. But it is not unusual.
For over three decades, Mr. Murphy has been the NCBE’s evangelist for selling the MBE
and then the UBE to all the states in the nation. In 2016, Mr. Murphy penned an article in
The Bar Examiner titled “Co-chairing the UBE Committee: A Labor of Love,” where he
reminisced about his successes selling the UBE to various states. That article leaves out his
use of his simultaneous role on the ABA’s Council of the Section of Legal Education and
Admissions to the Bar to encourage an ABA resolution promoting the UBE, though the
NCBE website proudly memorializes the fruits of Mr. Murphy’s lobbying.
The NCBE’s influence is clear from the CAPA Working Group’s final report. Because
that influence was not obtained impartially, but through Mr. Murphy’s unlawful
membership on the CAPA Working Group, the CAPA Working Group’s findings and
recommendations must not be used by the Blue Ribbon Commission. The Blue Ribbon
Commission’s first priority is to decide whether the NCBE should be granted a contract for
the UBE, giving the NCBE complete or near-complete control over the California Bar Exam,
and profits from over 12,000 attorney applicants each year. If the Blue Ribbon Commission

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uses the CAPA Working Group’s findings as decided by the NCBE, any recommendation by
the Commission to contract with the NCBE will be unlawful and void.
The Blue Ribbon Commission’s Charter is Incongruous with the California Bar Exam’s
Purpose Because it Fails to Reasonably Evaluate Whether the UBE Protects the Public
Not only does the Blue Ribbon Commission Charter rely on two committees where
which the NCBE illegally holds advisory positions, but the Charter’s language also does
not require the Blue Ribbon Commission to conduct of thorough review of whether an
adoption of the UBE will benefit the California public. Both the NCBE and the State Bar
contend that the purpose of the California Bar Exam is to “protect the public” by ensuring
that attorneys meet the “minimum competence” required to practice law. As such, it is
paramount that any change in the California Bar Exam should first involve a determination
that the change will benefit the California public.
The Blue Ribbon Commission’s Charter presumes that the NCBE’s and CAPA
Working Group’s findings pertain to minimum attorney competence, and omits any
reference to public protection. The Charter then instructs the Blue Ribbon Commission to
determine if “knowledge, skills, and abilities” align between the UBE and the CAPA
Working Group recommendations. In short, as long as “knowledge, skills, and abilities” as
described by the NCBE and CAPA Working Group appear to align, the Charter directs Blue
Ribbon Commission to advise in favor of adopting the UBE. Here again it is suggested that
the adoption of the UBE is a foregone conclusion, even if it is harmful to the public.
Nothing in the Blue Ribbon Commission’s Charter reasonably directs the
Commission to determine whether the public will be harmed by adoption of the UBE. The
Charter does not direct its members to assess the risks of delegating oversight to a private
Wisconsin corporation. The Charter does not direct its members to investigate the history
of the private Wisconsin corporation which will have a seat on the Blue Ribbon
Commission and obtain a financial windfall by adoption of the UBE. The Charter does not
propose studying the potential impact on communities who lack access to legal services if
the UBE is adopted.
The Blue Ribbon Commission’s Charter demonstrates the Commission will not
evaluate whether adoption of the UBE would harm the public. In fact, the Charter suggests
that the Blue Ribbon Commission will not perform any thorough or meaningful evaluation
of the UBE at all, and will merely rely upon the recommendations of the private
corporation that promulgates the UBE. The Charter demonstrates that the Blue Ribbon
Commission’s purpose is incongruous with the official purpose of the California Bar Exam.

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The Blue Ribbon Commission Charter Should Direct a Review of the New York Task
Force Study of the Adoption of the UBE
Any thorough evaluation by the Blue Ribbon Commission must also involve a
review of the recent landmark New York State Bar Association’s study on the adoption of
the UBE, which is the most comprehensive, impartial, and independent study of the UBE
to date.1 In 2019, after having replaced its own bar exam with the UBE for several years,
the New York State Bar Association (“NYSBA”) formed a Task Force to investigate and
report on the impact of New York’s adoption of the UBE. After a one-year study, the Task
Force concluded in an 80-page report the UBE fundamentally harmed legal practice in the
state. The NYSBA Task Force on the New York Bar Examination’s Report provided that:
“We conclude that since the adoption of the UBE, the fundamental purpose of the
bar examination, which is to protect the public, has been lost.”2
“The UBE as currently administered does not meet the requirements for what has
long been the standard for licensure in New York: a reliable assessment of minimum
competency to practice law in our State.”3
“[T]he adoption of the UBE has had the unintended, though foreseeable,
consequence of rendering applicants less, not more, equipped to meet the challenges of
practicing law in New York”4
“The UBE, with its reliance on testing the ‘law of nowhere,’ has led to the training
of lawyers on matters that bear little relation to the legal issues that they will encounter
in practice.”5
“Until the advent of the UBE, admission to the New York Bar certified that the
attorney had the competence and fitness to practice, not just anywhere, but in New York,
the veritable mothership of American law. With the adoption of the UBE, it is no longer
necessary for an attorney to know anything about New York law to gain admission. We
now actually have two distinct groups of New York Bar members: those who happen to be
admitted here though utterly lacking in our laws and those who are competent to practice
here.”6

1
NYSBA Task Force on the New York Bar Examination, Report of the NYSBA Task Force on the New York
Bar Examination, Mar. 5, 2020 <https://nysba.org/app/uploads/2020/03/Report-of-the-NYSBA-Task-
Force-on-the-New-York-Bar-Examination-With-Appendix-compressed.pdf> (last accessed Nov. 5, 2020).
2
Id. at 42.
3
Id. at 71.
4
Id. at 2.
5
Id. at 1.
6
Id. at 6.

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“The grading and scoring practices are questionable and no independent analysis
has been conducted into whether the UBE accurately measures what it purports to assess…
We need to demand independent answers to the scoring and grading questions
surrounding the UBE. We cannot simply rely upon the assurances of the NCBE, which
composes, licenses, and scores the UBE, as to the quality of its own product.”7
“While we are cognizant that a three-year study has recently been published as to
New York’s experience with the UBE, we are concerned by the fact that the study was
conducted by the NCBE, which is the sponsor of the UBE. It is as if the author of a book
wrote its own book review. Moreover, even that study finds that the UBE perpetuates a
disparate impact to women and, to some extent, minorities.”8
It is improbable that the UBE is more compatible with California law, or will
somehow avoid causing the same devastation to the legal profession here as it did in New
York. With the New York Task Force findings in mind, any thorough and responsible
review of the UBE by the Blue Ribbon Commission must also include a direction to review
the landmark findings of the independent and impartial New York Task Force and to
interview its authors.
Conclusion
The NCBE had its lifelong MBE/UBE evangelist serve on the CAPA Working Group
to ensure the findings and recommendations supported adoption of the UBE, violating
Government Code section 1090. The Blue Ribbon Commission’s Charter, membership
designation for the NCBE, and reliance upon the CAPA Working Group’s findings and
recommendations all involve violations or impending violations of section 1090. The Blue
Ribbon Commission’s Charter suggests that adoption of the UBE is a foregone conclusion,
regardless of whether it has a devastating impact on the public it purports to protect, as it
did in New York.
I urgently request that our California Supreme Court take the following measures
to mitigate the harm resulting from the NCBE’s violations of section 1090 and impending
conflicts of interest:
(1) Prohibit the NCBE from membership on the Blue Ribbon Commission and
prohibit the NCBE or any of its agents from any advisory role on the Commission that
would violate section 1090;

7
Id. at 1-2.
8
Id. at 1.

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(2) Prohibit the Blue Ribbon Commission from relying on findings and
recommendations by the CAPA working group based on Mr. Murphy’s appointment to that
group; and
(3) Revise the Blue Ribbon Commission Charter to require a thorough and
meaningful evaluation of the UBE, require a finding that adoption of the UBE will benefit
the California public, and require a review of the Report of the NYSBA Task Force on the
New York Bar Examination.

Sincerely,

Julian Sarkar
Enclosure

cc: Jorge Navarette, Executive Officer of the California Supreme Court

cc: Sean SeLegue, Chair, Board of Trustees, State Bar of California
cc: Donna S. Hershkowitz, Executive Director, State Bar of California
cc: Esther P. Lin, Chair, Committee of Bar Examiners, State Bar of California
cc: Alan Steinbrecher, Chair, CAPA Working Group, State Bar of California
cc: Assemblymember Mark Stone, Chair of the Assembly Committee on Judiciary
cc: Hon. Alan D. Scheinkman, Task Force on the New York Bar Examination

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November 5, 2020
By Electronic Complaint System
Fair Political Practices Commission
1102 Q Street, Suite 3000
Sacramento, CA 95811
http://www.fppc.ca.gov/enforcement/electronic-complaint-system.html

Re: Violations of Gov. Code § 1090

National Conference of Bar Examiners Directing State Bar of California Contracts

Dear Fair Political Practices Commission,

My office represents attorney applicants regarding the California Bar Exam
against the State Bar of California (“State Bar”). I am providing the Fair Political
Practices Commission (“FPPC”) with this complaint, which is based upon public records
and publications by the National Conference of Bar Examiners (“NCBE”). This complaint
pertains to potential and/or impending violations of Government Code section 1090 by
the NCBE, a private Wisconsin corporation and government contractor, with respect to
the State Bar.
As explained below, the State of California is in the midst of a major study of
whether or how to reform the California Bar Exam, its attorney licensure examination.
The NCBE is a private corporation that relies upon income from state contracts for its
examination products, which more recently includes the all-encompassing Uniform Bar
Examination (“UBE”) meant to replace state examinations. Until now, California has
maintained its independently created essay and performance test examinations, rather
than contracting with the NCBE to administer the UBE. The first stated task of the
California Bar Exam study is to evaluate whether California should enter into a large
financial license agreement with the NCBE in the future.
Two committees are tasked with issuing recommendations for the future of the
California Bar Exam and whether California should grant the NCBE a contract for
complete or near-complete control over administration of the California Bar Examination:
(1) the Joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the
California Bar Exam (“Blue Ribbon Commission”), and (2) the California Attorney
Practice Analysis Working Group (“CAPA Working Group”). The NCBE has been granted
memberships on both the Blue Ribbon Commission and the CAPA Working Group in
violation of Government Code section 1090. “[N]o man can faithfully serve two masters
whose interests are or may be in conflict… The law, therefore, will not permit one who

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acts in a fiduciary capacity to deal with himself in his individual capacity.”1 The NCBE
cannot be trusted to hold the public’s interests above its own while advising and issuing
recommendations on whether California should grant the NCBE a contract for complete
or near-complete control over administration of the California Bar Exam, which presently
produces approximately $20 million in revenue for the State Bar each year.2
The NCBE’s membership on these two committees is akin to Lockheed Martin
serving on official State of California committees tasked to issue recommendations about
whether the State should purchase Lockheed Martin’s aircrafts. But instead of selling
manufactured goods to the State of California, the NCBE is selling its own system for
repeatedly collecting examination fees. Government Code section 1090 was specifically
designed to prevent such a conflict of interest. This complaint urgently seeks the FPPC to
investigate the alleged violations of section 1090, prosecute if it finds probable cause,
issue an FPPC advisory opinion on this important matter, and take any and all other
action it deems necessary.
I. Background
Passage of the California Bar Exam is required before an individual can practice
law in the State of California, among other requirements. The California Bar Exam is
administered by the State Bar, which is an administrative arm of the California Supreme
Court. Every year, more than 12,000 applicants take the California Bar Exam. Along with
a number of other fees, each applicant pays between $677 and $983 to take the exam. 3
To date, the State Bar has retained control over the administration of the California Bar
Exam’s written portion.4
Outside of California, approximately 36 states have granted contracts to the NCBE
to administer the UBE as their sole or primary examination requirement. 5 The NCBE
collects more than $20 million annually in revenues to administer the Uniform Bar Exam

1
Thomson v. Call (1985) 38 Cal.3d 633, 647-648.
2
See State Bar of Cal., 2017 Financial Statement and Independent Auditor’s Report of the State Bar of Cal.
(Apr. 30, 2018) [“2017 Financial Statement”] p. 12 [“OPERATING REVENUES… Examination application
fees… 20,077,228”].
3
See Rules State Bar rules 4.16, 4.41, 4.47, 4.52, 4.58, 4.61, appen. A: Schedule of Charges and Deadlines
for 2020.
4
The California Bar Exam consists of two main portions, a written portion and a multiple choice portion.
The written portion is drafted by the State Bar. The multiple choice portion (Multistate Bar Examination or
“MBE”) is drafted and licensed from the NCBE. Thus, the NCBE has been and continues to be a
government contractor for the State of California, and is also a potential government contractor should the
Blue Ribbon Commission recommend adoption of the UBE.

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and other standardized tests.6 In UBE states, the NCBE owns and controls the contents of
the written portion of each exam.
A. The NCBE is a Government Contractor
The NCBE is a private government contractor that collects fees by licensing
standardized exams to state agencies. In addition to the UBE, the NCBE administers two
other exams—the Multistate Bar Examination (the “MBE”) and the Multistate
Professional Responsibility Examination (“MPRE”)—to a number of state agencies
including California, who require these exams as prerequisites to the practice of law. In
tax filings, the NCBE reported assets of over $122 million dollars, which likely reflects
the accumulation of profits from exam fees it collects from states each year.7
B. The California Supreme Court Forms a Commission to Study the
Future of the California Bar Exam and Improperly Allocates the NCBE
with Influential Roles
1. The NCBE’s Membership on the Blue Ribbon Commission
On October 26, 2020, the California Supreme Court approved the creation of a
joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California
Bar Exam (“Blue Ribbon Commission”).8 The Blue Ribbon Commission is tasked with
developing recommendations “concerning whether and what changes to make to the
California Bar Exam.”9 According to the Charter, the Blue Ribbon Commission’s first task
is to study the possibility of recommending the adoption of the NCBE’s UBE in
California. 10 In other words, the Blue Ribbon Commission’s top priority is to decide
whether to grant the NCBE a contract for administering all or almost all of the California
Bar Examination, resulting in a financial windfall for the NCBE. (The proposed Blue
Ribbon Commission is attached hereto as Exhibit A. It was adopted by our California
Supreme Court with only minor modifications.)11
According the Blue Ribbon Commission Charter, the Blue Ribbon Commission will
consist of 16 members, to be appointed by the end of 2020.12 The Charter allocates the

6
NCBE, IRS Form 990, l. 12 (2019).
7
NCBE, IRS Form 990, l. 20 (2019).
8
Balassone, California Supreme Court Approves Charter for Bar Exam Commission, California Courts
Newsroom (Oct. 26, 2020).
9
State Bar of California Exec. Dir. Donna Hershkowitz letter to C.J. Tani Cantil-Sakauye, Aug. 12, 2020, p.
10. (Attached hereto as “Exhibit A.”)
10
Exhibit A, p. 3.
11
C.J. Tani Cantil-Sakauye letter to State Bar of California Exec. Dir. Donna Hershkowitz, Oct. 26, 2020.
12
Exhibit A, pp. 9–10.

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16 positions to members from various organizations in the legal profession or relevant

governmental administration. But most importantly for the purpose of this complaint,
one of the positions is specifically reserved for the NCBE, a financially interested party.13
Described below, allocation of a Blue Ribbon Commission membership to the
NCBE is a blatant conflict of interest and illegal under Government Code section 1090.
Pursuant to that section, the NCBE cannot have an advisory role in a committee that is
tasked in recommending whether the State Bar should grant the NCBE a contract to
administer the UBE, thereby ceding complete or near-complete control over the
California Bar Exam to the NCBE. The NCBE must be prohibited from any advisory role
on the BRC.
2. The NCBE’s Membership on the California Attorney Practice Analysis
Working Group Committee
As a foundational precursor the Blue Ribbon Commission, in December 2018, the
State Bar commissioned the California Attorney Practice Analysis Working Group (“CAPA
Working Group”).14 The purpose of CAPA Working Group is to examine the content of
the California Bar Exam, “oversee a practice analysis study,” and make recommendations
to the Blue Ribbon Commission. CAPA Working Group’s “findings and recommendations
[] serve as a foundation for the work of the joint Blue Ribbon Commission on the Future
of the Bar Exam.”15 Accordingly, the Blue Ribbon Commission is instructed to closely
coordinate with CAPA Working Group and to rely on its recommendations.
One of CAPA Working Group’s members is Mr. Gregory Murphy.16 Mr. Murphy is
a co-author of each of CAPA’s reports and recommendations to the BRC. This follows Mr.
Murphy’s decades as serving the NCBE as an evangelist for the MBE and UBE. Mr.
Murphy began his career with the NCBE in the late 1980’s when Montana law students
challenged the Montana Supreme Court’s requirement that attorney applicants take the

13
The Charter allocates a membership to “One member from the National Conference of Bar Examiners
Testing Task Force.” The NCBE Testing Task force consists of 7 members all of which are current or former
NCBE trustees, as well as the CEO/President of the NCBE. NCBE Testing Task Force, Testing Task Force
Members <https://testingtaskforce.org/about/task-force-members/> [last accessed Nov. 4, 2020].
14
California Practice Analysis Working Group, State Bar of California, Fact Sheet, June 23, 2020, p. 1.
15
Id.
16
State Bar of California, California Attorney Practice Analysis Working Group Roster
<http://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/California-Attorney-Practice-Analysis-
Working-Group-Roster> [last accessed Nov. 4, 2020]. In addition to serving as a member of the CAPA
Working Group, Mr. Murphy is also a member of the State Bar’s Committee of State Bar Accredited and
Registered Schools.

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NCBE’s multiple choice bar exam. Mr. Murphy successfully defended Montana’s
requirement of the NCBE’s MBE.17
Mr. Murphy eventually rose to become the chair of the NCBE’s Board of Trustees.
As part of his duties for the NCBE, Mr. Murphy lobbied states to enter into lucrative
license agreements with the NCBE to administer the UBE. In 2016, Mr. Murphy penned
an article entitled “Co-chairing the UBE Committee: A Labor of Love” in which he
boasted about his success in lobbying states to license the UBE from the NCBE. 18
(Attached hereto as Exhibit B.)
Described below, similar to the NCBE’s membership on the BRC, Mr. Murphy’s
membership on CAPA is plainly illegal under Government Code § 1090. The NCBE’s
participation in this group automatically taints any of its recommendations and the BRC
is legally prohibited from relying upon them.
For the same reason Government Code section 1090 prohibits the NCBE from
having an official position on the Blue Ribbon Commission, Government Code section
1090 prohibits the NCBE from serving on the CAPA Working Group through its lobbyist
of over 30 years. The NCBE and Mr. Murphy were nevertheless successful in tailoring the
CAPA Working Group findings and recommendations to support adoption of the UBE—a
contract in which the NCBE is indisputably interested. In order for the Blue Ribbon
Commission to proceed without an outcome violating section 1090, it must be prohibited
from relying upon the CAPA Working Group’s findings and recommendations.
II. Legal Discussion
A. Granting the NCBE an Official Position on the Blue Ribbon
Commission Is a Blatant Violation of Section 1090
“[N]o man can faithfully serve two masters whose interests are or may be in
conflict… The law, therefore, will not permit one who acts in a fiduciary capacity to deal
with himself in his individual capacity.” 19 State and judicial district officers and
employees shall not be financially interested in any contract made by them in their

17
Roche, Douglas D. The Early Days of NCBE’s MBE Committee: Reminiscences from a Former Chair (Dec.
2012) vol. 81, no. 4, B. Exam’r, p. 15.
18
Gregory G. Murphy & Rebecca S. Thiem, Co-chairing the UBE Committee: A Labor of Love (Sept. 2016),
vol. 85, no. 3, B. Exam’r. Article omits Mr. Murphy’s simultaneous leadership of the American Bar
Association’s (“ABA”) Council of the Section of Legal Education and Admissions to the Bar, and his use of
his joint leadership to adopt an ABA resolution encouraging all states to adopt the UBE. See Chair Greg
Murphy, ABA, Council of the Section of Legal Education and Admissions to the Bar letter to Board of
Governors, ABA, Jan. 30, 2017. See also ABA, Section of Legal Education and Admissions to the Bar,
Council Res., Endorsing Consideration of a Uniform Bar Examination, Aug. 6, 2010.
19
Thomson v. Call, supra, 38 Cal.3d at 647-648.

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official capacity, or by any body or board of which they are members.20 An individual
shall not aid or abet a state or judicial district officer or employee in violating the
prohibition on self-interested contracts.21
Section 1090’s prohibition must be broadly construed and strictly enforced.22 “An
important, prophylactic statute such as Section 1090 should be construed broadly to
close loopholes; it should not be constricted and enfeebled.”23 Accordingly, a contract is
“made” for the purposes of section 1090 if the public official “had the opportunity to,
and did, influence execution [of the contract] directly or indirectly to promote his
personal interests.”24 The making of a contract “encompasse[s] the planning, preliminary
discussion, [and] compromises … that le[a]d up to the formal making of [a] contract.”25
The remedies for section 1090 range from voiding the subject contract, 26 civil
penalties, criminal penalties including imprisonment, and disqualification from holding
public office in perpetuity.27 An official is subject to criminal liability if the official knew
they might profit from the contract.28 It is not a defense that the official acted in good
faith, sincerely believed the contract was in the public’s best interest, or acted under the
advice of counsel.29
Our California Supreme Court held in Sahlolbei that section 1090 applies “to
outside advisors with responsibilities for public contracting similar to those belonging to
formal officers… outside advisors with responsibilities for public contracting similar to
those belonging to formal employees, notwithstanding the common law distinction
between employees and independent contractors.”30 The Sahlolbei decision overturned a
2013 appellate court ruling which permitted an independent contractor to escape
liability, finding that the 2013 decision “did not consider the legislative history or the

20
Gov. Code § 1090(a).
21
Gov. Code § 1090(b).
22
Stigall v. City of Taft (1962) 58 Cal.2d 565, 569-571; Finnegan v. Schrader (2001) 91 Cal.App.4th 572,
579-580; City Council v. McKinley (1978) 80 Cal.App.3d 204, 213.
23
Carson Redevelopment Agency v. Padilla (2006) 140 Cal.App.4th 1323, 1334.
24
People v. Lofchie (2014) 229 Cal.App.4th 240, 247; People v. Wong (2010) 186 Cal.App.4th 1433, 1450.
25
People v. Honig (1996) 48 Cal.App.4th 289, 315; Millbrae Assn. for Residential Survival v. City of Millbrae
(1968) 262 Cal.App.2d 222, 237.
26
Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 818.
27
Gov. Code § 1097; People v. Honig (1996) 48 Cal.App.4th 289, 317; Ops.Cal.Atty.Gen. 121, 123 (2006).
28
Gov. Code § 1097; Lexin v. City of San Diego (2013) 222 Cal.App.4th 662, 671; D’Amato v. Superior
Court (2008) 167 Cal.App.4th 861, 869.
29
Id.
30
People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 237.

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purposes of section 1090.” 31 The Sahlolbei Court extended liability to “independent

contractors who have duties to engage in or advise on public contracting.”32
Because the NCBE will obtain a substantial windfall from the over 12,000
attorney applicants who take the California Bar Examination each year if the UBE is
adopted, it would be absurd to argue that it only has a “remote interest.” 33 The
exemption that pertains to nonprofit entities “if the contract involves no direct financial
gain… and only if the officers recuse themselves from participating in the making of the
contract.”34
Government Code section 1090 was specifically designed to prevent such a
conflict of interest. The NCBE simply cannot provide impartial advice on whether it
should be granted a contract for administering the entire California Bar Examination to
12,000 attorney applicants each year, and must be prohibited from serving on the Blue
Ribbon Commission.
B. Gov. Code § 1090 Prohibits the NCBE’s Participation on CAPA and
Prohibits the BRC from Relying Upon its Recommendations Influenced
by an NCBE Agent
“Where a prohibited interest is found, the affected contract is void from its
inception…” 35 Government Code Section 1090 broadly disqualifies committee
recommendations that were influenced in any manner by financially interested
members:
“The decisional law, therefore, has not interpreted section 1090 in a
hypertechnical manner, but holds that an official [] may be convicted of
violation no matter whether he actually participated personally in the
execution of the questioned contract, if it is established that he had the
opportunity to, and did, influence execution directly or indirectly to
promote his personal interests.”36

31
Id. at 238.
32
Id. at 233.
33
Gov. Code § 1091.
34
Eden Township Healthcare Dist. v. Sutter Health (2011) 202 Cal.App.4th 208, 222, fn. 10.
35
Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at 818.
36
People v. Sobel (1974) 40 Cal.App.3d 1046, 1052.

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Participation in the making of a contract is defined broadly as any act involving

preliminary discussions, negotiations, compromises, reasoning, planning, drawing of
plans and specifications, and solicitation for bids.37
Furthermore, individuals in advisory positions can influence the development of a
contract even though they have no actual power to execute the final contract.38
Here, Mr. Murphy’s role on CAPA automatically disqualifies its recommendations
and legally precludes the BRC from relying upon CAPA. During Mr. Murphy’s time on
CAPA, the working group heavily incorporated the NCBE’s “studies” to form
recommendations that will be foundational for the BRC to recommend a contract with
the NCBE to license the UBE. Unsurprisingly, extensive criticisms of the NCBE’s products
are notably absent from the CAPA report, including those generated by studies
commissioned by the NCBE.39 The influence by Mr. Murphy and the NCBE is very clearly
reflected in the CAPA’s final report.40 The report identifies Mr. Murphy as a “former”

37
Millbrae Assn. for Residential Survival v. City of Millbrae, 262 Cal.App.2d 222, 237 (1968).
38
See, Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 291; City Council v. McKinley (1978) 80
Cal.App.3d 204 [member of Park and Recreation Board who owned a landscape architectural firm violated
section 1090 where he was also a member of a committee created to advise the Board on the design,
architecture, landscaping and technical planning of a Japanese garden].
39
See Klein & Bolus, An Analysis of the Relationship Between Clinical Legal Skills and Bar Examination
Results (July 1982) pp. 1, 66 [“In short, it is questionable whether the typical bar exam is a sufficiently
good indicator of the degree to which an applicant is prepared to practice law…” Data reflecting MBE’s
ability to measure legal skills and abilities were “Very Poor: 29%, Poor: 30%, Fair: 29%, Good: 9%, Very
Good: 2%” compared with the Assessment Centers two days at “Very Poor: 4%/3%, Poor: 12%/9%, Fair:
44%/40%, Good 28%/35%, Very Good: 12%/14%”]; Susan M. Case, Ph.D., The Testing Column: Failing
the Bar Exam—Who’s at Fault, vol. 82, no. 3, B. Exam’r, p. 34 (2013) [“[S]ome of the complaints
expressed… The bar exam is irrelevant. Complaining about the relevance of the bar exam distracts from the
examinee’s job, which is to pass the bar exam. (Besides, current examinees who suggest eliminating the
bar exam entirely would not succeed in doing so within a window of time that is relevant to them
anyway.)”]; see also NCBE Testing Task Force (Aug. 2019) Phase 1 Report of the Testing Task Force, pp.
9-10 [“tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to
know and are not reflective of minimum competence… does not mimic real practice… tests only
memorization and no skills… full of red herrings and intentionally tricky… written in such a way that
there is not a clearly correct answer choice… not realistic or an effective way to test what lawyers do.”];
inter alia.
40
California Attorney Practice Analysis Working Group, State Bar of California, The Practice of Law in
California: Findings from the California Attorney Practice Analysis and Implications for the California Bar
Exam, May 11, 2020, pp. 3, 9 [“One of the most important constraints was related to the content
validation study, which relied heavily on a national survey of practicing attorneys conducted by the
National Conference of Bar Examiners (NCBE) in 2012… however, the Working Group was notified that
the NCBE was conducting its own practice analysis survey, and was seeking participants from California…
The State Bar agreed to provide the necessary support and collaboration.”].

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trustee of the NCBE “who previously served as Chair of the Board of the NCBE.”41 While
this suggests that Mr. Murphy’s relationship with the NCBE is a matter of the past, there
does not appear to be an affirmative record stating Mr. Murphy no longer has a
relationship with the NCBE. There does not appear to be an affirmative record where he
states that he receives no compensation for his extensive MBE and UBE lobbying.
Section 1090 is clear that financially interested parties have no place on advisory
committees that could directly or indirectly influence a future government contract.
Millbrae Assn., 262 Cal. App. 2d at 237. That is exactly the case here, where CAPA’s task
is to issue recommendations for the BRC, which is tasked to heavily rely upon these
recommendations and decide upon entering into a government contract with Mr.
Murphy’s employer, the NCBE. Mr. Murphy’s role on this committee automatically taints
all of its reports and recommendations, and the BRC is legally precluded from relying
upon them.
If the BRC is to produce a recommendation that results in a lawful contract, it
must not be allowed to proceed with relying upon the planning, preliminary discussion,
or fruits of Mr. Murphy’s lobbying on behalf of the NCBE. It must not rely upon CAPA’s
final report, which is heavily influenced by the self-interested NCBE. Most importantly, it
must not grant an entire dedicated position to the NCBE and allow the NCBE’s
representative to illegally influence this important financial decision. As such, the BRC
must be prohibited from coordinating with CAPA as long as Mr. Murphy is a member, or
relying upon CAPA’s recommendations that were drafted while Mr. Murphy served on
the committee.
Conclusion
The State Bar of California and California Supreme Court are in the midst of a
major study to potentially reform the California Bar Exam. With over 12,000 attorney
applicants taking the California Bar Examination each year, the potential to obtain an
extremely lucrative examination contract is enormous. If the study recommends adoption
of the UBE, the NCBE will reap a financial windfall through the resulting contract from
the State Bar.
Two different committees are involved with the process to issue recommendations
on whether the State Bar will ultimately enter into a large financial contract with the
NCBE—the Blue Ribbon Commission and CAPA. Section 1090 prohibits the NCBE’s

41
California Attorney Practice Analysis Working Group, State Bar of California, The Practice of Law in
California: Findings from the California Attorney Practice Analysis and Implications for the California Bar
Exam, May 11, 2020, pp. 5, 24 (emphasis added).

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membership on either of these committees, yet somehow the NCBE was illegally slotted
memberships on both, as well as CSBARS.
I urgently request the FPPC to investigate these violations and potential
impending violations. I further request the FPPC intervene immediately to prevent the
NCBE from holding a role—whether through an agent on its behalf, or an officer or
employee—on the Blue Ribbon Commission. I further request the FPPC prevent the Blue
Ribbon Commission from relying upon the planning, preliminary discussion, or fruits of
Mr. Murphy’s lobbying on behalf of the NCBE through his work on CAPA.
Thank you for your anticipated professionalism. Please do not hesitate to contact
me if you have any questions.

Sincerely,

Julian Sarkar
Enclosures

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Exhibit A
 OFFICE OF THE EXECUTIVE DIRECTOR

180 Howard Street, San Francisco, CA 94105 donna.hershkowitz@calbar.ca.gov

213-765-1356

August 12, 2020

Honorable Tani G. Cantil-Sakauye, Chief Justice of California

Associate Justices of the California Supreme Court
350 McAllister Street, 5th Floor
San Francisco, CA 94102-4797

Dear Chief Justice Cantil-Sakauye and Associate Justices:

In May 2020, with the support of the Court, the State Bar Board of Trustees authorized the
creation of a joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the
California Bar Exam. On July 16, 2020, the Board approved a charter to guide the work of the
Blue Ribbon Commission on the Future of the California Bar Exam. The Board also approved the
categories of stakeholders from which commission members will be solicited.

The proposed charter and composition is outlined in Attachment A of the July 16, 2020 Board of
Trustees Agenda Item 704, as amended by the Board at the July meeting. In brief, the
commission is charged with developing recommendations concerning appropriate changes to
make to the California Bar Exam, and whether to adopt additional testing or tools to ensure
minimum competence to practice law. As previously agreed with Mr. Sunil Gupta, the
commission will consist of 16 members appointed by the Court. Members will represent key
institutional entities, attorney practice sectors and settings, and reflect the state’s demographic
and geographic diversity. At least two members shall have been admitted to practice law in
California within three years from the date of their appointment.

Upon your approval of the Blue Ribbon Commission’s charter and composition, the State Bar
will solicit nominations and submit them to the Court for appointment.

San Francisco Office www.calbar.ca.gov Los Angeles Office

180 Howard Street 845 S. Figueroa Street
San Francisco, CA 94105 Los Angeles, CA 90017
Hon. Tani G. Cantil-Sakauye, Chief Justice
Associate Justices of the Supreme Court
August 12, 2020
Page 2

If you have any questions, please do not hesitate to contact me at 213-765-1356 or

donna.hershkowitz@calbar.ca.gov.

Sincerely,

Donna S. Hershkowitz
Interim Executive Director

DSH/LC/la
Enclosures
cc: Alan Steinbrecher, Chair, State Bar Board of Trustees
Sean SeLegue, Vice-Chair, State Bar Board of Trustees
Sunil Gupta, Principal Attorney to the Chief Justice of California
Jorge Navarrete, Clerk/Executive Office, Supreme Court of California
OPEN SESSION
AGENDA ITEM
704 JULY 2020

DATE: July 16, 2020

TO: Members, Board of Trustees

FROM: Lisa Chavez, Director, Office of Research and Institutional Accountability

SUBJECT: Supreme Court/State Bar Blue Ribbon Commission on the Future of the Bar
Examination - Approval of Proposed Charter and Composition

EXECUTIVE SUMMARY

Following consultation with the Supreme Court, the Board of Trustees directed staff to establish
a joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar
Exam. The commission will review the results of the California Attorney Practice Analysis and
recommendations raised by its working group, the results of the 2020 National Conference of
Bar Examiners practice analysis, and additional recent studies conducted on the bar exam, for
the purpose of developing recommendations for the California Supreme Court and the State
Bar of California regarding the bar exam. This agenda item proposes a charge that will guide the
commission’s work and recommends categories of stakeholders from which commission
members will be drawn.

BACKGROUND

On May 14, 2020, State Bar staff presented a report to the Board of Trustees summarizing the
findings of four studies of the California Bar Exam (CBX): (1) the report of the California
Attorney Practice Analysis (CAPA) Working Group; (2) the Differential Item Functioning Analysis
Report; (3) the Review of the California Bar Examination Administration and Related
Components; and (4) A Report on the Phased Grading of the California Bar Examination. The
report to the Board also contained proposals for addressing the short- and long-term
recommendations contained within these studies.

The Board of Trustees directed the Committee of Bar Examiners to review and address items
related to short term recommendations including: (1) reviewing bar exam grading policies,
grader eligibility criteria and compensation, grading rubrics, and cheating policy; and (2)
working with the Council on Access and Fairness to develop guidelines surrounding minimizing
the risk of differential item functioning; and adopting a definition of an entry-level attorney.

The Board of Trustees also directed State Bar staff to establish, in partnership with the
California Supreme Court, a Blue Ribbon Commission on the Future of the California Bar Exam
that would consider recommendations related to the exam’s content and format that require a
longer-term, deliberative planning process, particularly as they relate to the CAPA Working
Group’s recommendations.

DISCUSSION

In 2018, the Board of Trustees of the State Bar of California created the California Attorney
Practice Analysis Working Group to convene specialists in the field of psychometrics and
practice analysis to document the current practice of law in California, and more specifically to
understand the knowledge, skills, and abilities needed by entry level attorneys in California to
practice law ethically and competently. The study collected data on attorney practices along
two principal dimensions: what attorneys do as reflected in daily tasks, and what knowledge
attorneys use to perform those tasks. The results provided information necessary to evaluate
the link between the California Bar Exam’s content and current legal practice, and created a
blueprint—an outline of content coverage across legal topics and job responsibilities—for the
future selection of bar exam topics and question items. The CAPA Working Group evaluated the
findings, applied their professional judgment, and recommended that the bar exam test eight
legal topics and six skills. In addition, the CAPA Working Group recommended that a number of
topics be eliminated from the CBX but tested elsewhere.

The recommended legal topics include:

o Administrative Law and Procedure o Criminal Law and Procedure
o Civil Procedure o Evidence
o Constitutional Law o Real Property
o Contracts o Torts
The recommended skills include:
o Drafting and Writing o Counsel/Advice
o Research and Investigation o Litigation
o Issue-spotting and Fact-gathering o Communication and Client
Relationship

The CAPA Working Group concluded its work in 2020 with a report to the Board of Trustees. 1
Their work coincided with a national practice analysis conducted by the National Conference of
Bar Examiners (NCBE) whose forthcoming final report will include recommendations regarding

1
The CAPA Working Group’s final report The Practice of Law in California: Findings from the California Attorney
Practice Analysis and Implications for the California Bar Exam is available online.
Page 2
content and format of various component tests of the Uniform Bar Exam (UBE). Currently there
are 39 UBE jurisdictions across the country.

The Commission’s Charter

The commission will review the California Attorney Practice Analysis and the working groups’
recommendations as well as the results of the 2020 National Conference of Bar Examiners
practice analysis and its recommendations for UBE content and format. In addition, the
commission will examine recent studies on the CBX including those presented to the Board of
Trustees in May 2020 as described above, as well as data on the pass rates of applicants of
color. In so doing, the commission will develop recommendations for the Supreme Court and
the State Bar addressing the following questions:

Should California adopt the UBE? The commission will advise as to whether there is sufficient
alignment in the knowledge, skills, and abilities to be tested by the UBE with the knowledge,
skills, and abilities required of entry level California attorneys to argue in favor of its adoption
by California. If the commission recommends the adoption of the UBE, the commission will also
explore whether there should be supplementary content and skills tested or trained to meet
specific California needs, and if so, modalities for that testing or training.

Should California revise the CBX? If the commission does not recommend adopting the UBE,
the commission will explore and recommend revisions to the current CBX addressing:

o Legal topics and skills to be tested: The commission will recommend legal topics
and skills to be tested on the bar exam and also provide specifications for
supplementary testing or training for topics not recommended for inclusion on the
exam itself.
o Testing format: In light of the legal topics and skills to be tested, the commission will
determine the testing format and design of the exam.
o Passing score: The commission will review the appropriateness of the current bar
exam pass line and whether it should be changed.

Commission Appointments
The Blue Ribbon Commission will consist of 16 members appointed by the California Supreme
Court. Members will represent key institutional entities, attorney practice sectors and settings,
and reflect the state’s demographic and geographic diversity. At least two members shall have
been admitted to practice law in California within three years from the date of their
appointment. Below are the categories from which nominations will be sought:
• Former members of the CAPA Working Group (2)
• Committee of Bar Examiners (2)
• NCBE Testing Task Force (1)
• Council on Access and Fairness (2)
• California Lawyers Association (2, at least one whom shall be a lawyer who took the bar
exam within the past 3 years)
• Law School Deans (2)

Page 3
 • Judges (active or retired) (2)
• California Department of Consumer Affairs (1)
• Current State Bar Board of Trustees (1)
• National expert on examination development or grading (1)
The commission will be staffed by the State Bar and include liaisons from the Supreme Court
and may include liaisons from the Legislature. A report from the California Department of
Consumer Affairs, titled “Review of the California Bar Examination Administration,”
recommended that constituents such as board members, deans, and educators be discouraged
from participating in exam development related activities. The commission’s charge as outlined
above is related to exam development in the broadest sense, but not specific to a particular
exam or set of questions, and thus staff believes appointment of representatives in these
categories is appropriate, and in fact, essential.

FISCAL/PERSONNEL IMPACT

In addition to personnel costs for staffing the commission and expenses for meetings, it is
anticipated that expenses will be incurred to hire a consultant to conduct research as needed.

AMENDMENTS TO RULES OF THE STATE BAR

None

AMENDMENTS TO BOARD OF TRUSTEES POLICY MANUAL

None

STRATEGIC PLAN GOALS & OBJECTIVES

Goal: 2. Ensure a timely, fair, and appropriately resourced admissions, discipline, and regulatory
system for the more than 250,000 lawyers licensed in California.

Objective: n. Conduct a California specific job analysis to determine the knowledge, skills, and
abilities for entry level attorneys. Upon completion, conduct a new content validation study.

RECOMMENDATIONS

Should the Board of Trustees concur in the proposed action, passage of the following
resolution is recommended:

RESOLVED, that the Board of Trustees adopts the charter for the new Blue Ribbon
Commission on the Future of the Bar Exam, as set forth in Attachment A, as amended,
and directs staff to finalize the Charter in consultation with the Supreme Court; and it is

Page 4
FURTHER RESOLVED, that upon finalization of the Charter, the Board of Trustees directs State
Bar staff to solicit nominations for the Blue Ribbon Commission to be appointed by the
Supreme Court from the categories of stakeholders listed in Attachment A; and it is

FURTHER RESOLVED, that the Commission will begin its work in the fall of 2020 and
present a final report on its findings and recommendations no later than June 30, 2022,
with periodic status updates to be provided to the State Bar Board of Trustees.

ATTACHMENT(S) LIST

A. Blue Ribbon Commission on the Future of the Bar Examination: Proposed Charter and
Composition

Page 5
 ATTACHMENT A

Blue Ribbon Commission on the Future of the Bar Examination:

Proposed Charter and Composition

Purpose

In 2018, the Board of Trustees of the State Bar of California created the California Attorney
Practice Analysis (CAPA) Working Group to convene specialists in the field of psychometrics and
practice analysis to document the current practice of law in California, and more specifically to
understand the knowledge, skills, and abilities needed by entry level attorneys in California to
practice law ethically and competently. The study collected data on attorney practices along
two principle dimensions: what attorneys do as reflected in daily tasks and what knowledge
attorneys use to perform those tasks. The results provided information necessary to evaluate
the link between the California Bar Examination’s content and current legal practice, and
created a blueprint—an outline of content coverage across legal topics and job responsibilities
—for the future selection of bar exam topics and question items. The CAPA Working Group
evaluated the findings, applied their professional judgment, and recommended that the bar
exam test eight legal topics and six skills. The CAPA Working Group concluded its work in 2020
with a report to the Board of Trustees. Their work coincided with a national practice analysis
conducted by the National Conference of Bar Examiners (NCBE) whose forthcoming final report
will include recommendations regarding content and format of the Uniform Bar Exam (UBE).

To evaluate the recommendations raised by the CAPA Working Group as well as additional
policy questions regarding the bar exam’s format and pass score, following consultation with
the Supreme Court, the Board of Trustees directed staff to establish a joint Supreme
Court/State Bar Blue Ribbon Commission on the Future of the California Bar Exam.

Commission Charter

The Joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar
Exam is charged with developing recommendations concerning whether and what changes to
make to the California Bar Exam, and whether to adopt additional testing or tools to ensure
minimum competence to practice law. In so doing, the commission will review the results of the
California Attorney Practice Analysis and the CAPA Working Group’s recommendations; the
results of the 2020 National Conference of Bar Examiners practice analysis and its
recommendations for the Uniform Bar Exam (UBE) content and format; and the results of
additional recent studies on the California Bar Exam conducted the State Bar, including data
examining the pass rates of applicants of color. While its work will be grounded in these
studies’ empirical findings, the commission shall explore other issues to ensure that the exam is
an effective tool for determining whether applicants are prepared to practice law ethically and
competently at a level appropriate for an entry-level attorney. In particular, the commission will
develop recommendations for the California Supreme Court and the State Bar of California
regarding:

1. Whether a bar exam is the correct tool to determine minimum competence for the
practice of law, and specifications for alternative tools should the commission
recommend that alternatives be explored and adopted.

Should the commission recommend that California retain a bar exam for the purpose of
determining minimum competency for the practice of law, the commission will develop
recommendations regarding the following:

2. Whether there is sufficient alignment in the knowledge, skills, and abilities to be

tested by the UBE with the knowledge, skills, and abilities required of entry level
California attorneys to argue in favor of its adoption by California.
3. If adoption of the UBE is recommended, whether there should be supplementary
content and skills tested or trained on to meet specific California needs, and if so,
modalities for that testing or training.
4. Revisions to the California Bar Exam if the UBE is not recommended for adoption,
addressing:
o Legal topics and skills to be tested: The commission will recommend legal topics
and skills to be tested on the bar exam and also provide specifications for
supplementary testing or training for topics not recommended for inclusion on
the exam itself.
o Testing format: In light of the legal topics and skills to be tested, the Commission
will determine the testing format and design of the exam.
o Passing score: The commission will review the appropriateness of the current
bar exam pass line and whether it should be changed.

Commission Composition

Nominations for the Blue Ribbon Commission will be appointed by the Supreme Court.
Members will be drawn from the following categories of stakeholders:

• Former members of the CAPA Working Group (2)

• Committee of Bar Examiners (2)
• NCBE Testing Task Force (1)
• Council on Access and Fairness (2)
• California Lawyers Association (2, at least one whom shall be a lawyer who took the bar
exam within the past 3 years)
• Law School Deans (2)
• Judges (active or retired) (2)
2
 • California Department of Consumer Affairs (1)
• Current State Bar Board of Trustees (1)
• National expert on examination development or grading (1)
Members will reflect the state’s demographic and geographic diversity and diversity in attorney
practice sector and settings.

3
Exhibit B
Co-chairing the UBE Committee: A Labor of Love

September 2016 (Vol. 85, No. 3)

This article originally appeared in The Bar Examiner print edition, September 2016 (Vol. 85, No. 3), pp 24–26.

By Gregory G. Murphy and Rebecca S. Thiem

When we were asked to write a short essay for the Bar Examiner with our observations and
re ections on the Uniform Bar Examination (UBE), we jumped at the chance. As opposed to
composing a dif cult brief for a client in a tough spot, writing an essay on the UBE, one of our
favorite subjects, would be easy. We have chaired or co-chaired NCBE’s Special Committee on
the Uniform Bar Examination (the “UBE Committee”) at the pleasure of succeeding chairs of the
NCBE Board of Trustees for the last decade—with Becky serving as the committee’s rst chair
when it was formed in 2006, and Greg joining as co-chair the following year—and it has been a
labor of love.

With the longtime acceptance of the Multistate Bar Examination (MBE) as the anchor to bar
examinations across the country and the ever-widening adoption of the Multistate Essay
Examination (MEE) and the Multistate Performance Test (MPT), NCBE President Erica Moeser
in consultation with other NCBE leadership proposed the concept of the UBE—bringing
momentum to and putting into concrete terms an idea that had once been viewed as radical.
Many jurisdictions were already employing all three components of the proposed UBE (the 2
MBE, MEE, and MPT), and the obvious question arose: If applicants are taking essentially the
same battery of tests examining them on the same knowledge and skills, what public protection
purpose is truly served by requiring them to retake the same examination in order to be
admitted in another jurisdiction, assuming that minimum competence is demonstrated by their
performance on the MBE, MEE, and MPT? A bar examination is intended to provide a measure
of protection to the public, not to raise an unreasonable barrier to entry into the profession or to
protect those already admitted against competition.

The early years of UBE development were devoted largely to raising the ag of the UBE to see if
the bar admissions community across the country would cheer. The ag was rst hoisted at two
meetings in 2009 for jurisdictions interested in discussing and moving forward with the UBE,
followed by three regional conferences around the country in 2010–2011. While no votes were
taken, it was apparent that there was enough support to move forward. It also became apparent
that in bar examining as in other things, “all politics is local.” As a result, the regional conferences
fell away, to be replaced by individual visits to jurisdictions interested in adopting the UBE.

Some jurisdiction had to be rst. In a delicious irony, Missouri, the “Show Me State,” stepped
forward before any other and adopted the UBE in 2010. Missouri also led the way in developing
a separate state-speci c component, an option available to all UBE jurisdictions that wish to
assess candidate knowledge of state-speci c law prior to admission. Its Missouri Educational
Component Test, an open-book, online, multiple-choice test, ensures that newly admitted
lawyers are aware of features of Missouri law that the bench and bar thought important for
Missouri lawyers to know. As Judge Zel Fischer of the Missouri Supreme Court put it, the idea is
to make newly licensed lawyers in Missouri aware of signi cant distinctions in Missouri law to
help them avoid “backing into a buzz saw.” What a great idea, and what a practical way to help
protect the public!

While the rst innovator is obviously critical, a movement will never go anywhere without the
rst follower, who is every bit as critical to the success of the movement as the innovator. North
Dakota joined later the same year, and it decided that no separate state-speci c component was
needed. Washington and Alabama were the next jurisdictions to adopt the UBE, with
Washington establishing its Washington Law Component for its rst UBE administration in
2013, and Alabama, which was the third jurisdiction after Missouri and North Dakota to
administer the UBE in 2011, later developing its online Course on Alabama Law.1 These
decisions by the jurisdictions regarding whether or not to require a state-speci c component
2
demonstrate an aspect of the UBE that had often been emphasized by NCBE—that jurisdictions
would retain much important control of the bar admissions process. The federal system
survives.
After Alabama, the UBE spread steadily in 2011–2012 to states primarily in the West, including
Greg’s home state of Montana in 2012. Frankly, we feared that the well-known western culture
of independence might stymie the UBE’s spread in that region. We were grati ed to see our fear
easily allayed.

Missouri’s idea about a state-speci c component of some kind found favor in other jurisdictions,
such as Arizona, which developed its online Course on Arizona Law, and Montana, which created
the Montana Law Seminar. Variations on these themes developed in other jurisdictions and are
covered in detail elsewhere in this publication.2 Suf ce it to say that as chairs of the UBE
Committee, we came to appreciate even more how the UBE could be a catalyst for better
serving the public by prompting the participation of lawyers and members of the legal academy
in the creation of these state-speci c components.

It was not lost on anyone that the rst states to adopt the UBE were states with large
geographic areas and relatively smaller populations. Indeed, the relatively few antagonists of
the UBE would sometimes be heard to say, “See, the UBE is only for smaller jurisdictions.” That
argument fell when New York adopted the UBE in 2015. As the old saw goes, “That was a game
changer.” Then−Chief Judge Jonathan Lippman of the New York Court of Appeals had appointed
an Advisory Committee chaired by Associate Judge Jenny Rivera to conduct a thorough study of
the UBE and to make a recommendation to the Court regarding a proposal to adopt the UBE.
After an exhaustive process, including a number of hearings on the record, the Advisory
Committee recommended adoption of the UBE, and New York came aboard. New York would
not have seen the light if the chair of the New York Board of Law Examiners, Diane Bosse, had
not become convinced that the UBE is the right thing for the public and for applicants.

When New York adopted the UBE, everyone in bar examining stood up and took notice. It came
as no surprise to us that states near New York soon joined. (We should note that New
Hampshire preceded New York with its UBE adoption in 2013, making it the rst UBE state in
New England.) Vermont followed, then New Jersey, Connecticut, and—most recently, in July
2016—Massachusetts.

Endorsements of the UBE owed from the Law Student and Young Lawyers Divisions of the
2
American Bar Association, and eventually from the ABA House of Delegates itself, which
adopted a resolution in early 2016 urging jurisdictions to adopt the UBE.3 The Conference of
Chief Justices adopted a similar resolution at about the same time urging jurisdictions to
consider adopting the UBE.4 The merits of the UBE had clearly become widely apparent. As we
write this, 25 jurisdictions have adopted the UBE, and we have good reason to believe that
others will soon follow.

The composition of the UBE Committee, whose members are appointed each year by the chair
of the NCBE Board of Trustees, has changed over time. Originally, the committee was composed
of representatives from jurisdictions that might be interested in the UBE, and it focused on
spreading the good word. As the UBE gained greater acceptance, the committee became more
focused on addressing issues of policy and implementation that would inevitably arise over time.
A primary example was the question of pre-release regrading of the MEE and MPT components
of the examination (a decision that was left to the jurisdictions to set their own policies). We
were heartened to learn that the jurisdictions that had adopted the UBE had much con dence in
the judgment of sister jurisdictions; comity is alive and well among bar examiners.

As would prove to be the case with later-adopting jurisdictions, much of the impetus for the
adoption of the UBE came from forward-thinking members of Courts who served as either chief
justices or liaisons to boards of bar examiners, and from in uential bar admission
administrators. Margaret Corneille, director of the Minnesota State Board of Law Examiners,
and David Ewert, assistant director for admissions for the Iowa Board of Law Examiners, are
examples of the latter who deserve special mention. And no observation on the success of the
UBE would be complete if we did not also acknowledge the inestimable contributions of Chief
Justice Rebecca White Berch (now retired) of the Arizona Supreme Court.

We nd it unnecessary now to sell the UBE. The examination sells itself. To be sure, as part of its
services to jurisdictions, NCBE often answers requests for assistance in considering the UBE by
sending Erica Moeser, NCBE Chief Operating Of cer Kellie Early, or NCBE Director of Test
Operations Judy Gundersen to discuss the UBE on a jurisdiction-by-jurisdiction basis, and the
UBE receives wonderful support from advocates like Daniel Johnson, chair of the Alabama
Board of Bar Examiners, who readily discusses the development of the Course on Alabama Law.
But it is the high quality of the UBE’s components, which undergo thorough and rigorous test
development processes no single jurisdiction has the resources to afford, coupled with the
2
advantage to applicants of the portability of the scores they earn, that makes the case for the
UBE. As co-chairs of the UBE Committee, we nd ourselves simply answering questions from
time to time from interested justices and bar examiners, and helping to manage the policies and
rules governing use of the UBE. We are fortunate to have been involved in this improvement of
the bar admissions process in the United States, and we thank the chairs of the NCBE Board of
Trustees who have demonstrated faith in us by appointing us to co-chair the UBE Committee.

Notes

1. During its rst three years of UBE administration, Alabama continued to administer its long-standing Alabama
Essay Examination, eventually replacing that essay examination with the Course on Alabama Law. (Go back)

2. [Editor’s Note: See this issue’s section devoted to describing the jurisdiction-speci c components that have been
developed by UBE jurisdictions.]  (Go back)

3. American Bar Association, House of Delegates Resolutions, Resolution 109, available at

http://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-
resolutions/109.html (last visited 26 July 2016). (Go back)

4. Conference of Chief Justices, Resolution 10, Urging Consideration of Implementation of Uniform Bar
Examination, http://ccj.ncsc.org/~/media/microsites/ les/ccj/resolutions/02012016-urging-consideration-
implementation-uniform-bar-examination.ashx. (Go back)

Gregory G. Murphy is the former chair of the Montana Board of Law Examiners. He is a
former chair of the NCBE Board of Trustees and long-standing co-chair of NCBE’s Special
Committee on the Uniform Bar Examination.

Rebecca S. Thiem is the former president of the North Dakota Board of Law Examiners. She
 is a former chair of the NCBE Board of Trustees and long-standing co-chair of NCBE’s
Special Committee on the Uniform Bar Examination. Thiem practices law in Bismarck,
North Dakota.

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