Ethics for New Lawyers: A New Deal for the Bar Exam

Each year, around 16,000 people take the California Bar Examination. The two-day exam is given in February and July and consists of five essay questions, one performance test, and the Multistate Bar Examination (MBE), which usually contains 200 multiple-choice questions.

            The next California Bar Exam will take place on February 25-26, 2025. While the State Bar of California is advising applicants to “prepare for the exam as they always have,” there is much uncertainty surrounding the administration of the upcoming exam, as well as all future California bar exams.

            Earlier this year, the State Bar decided to stop paying the National Conference of Bar Examiners around $1,000,000 annually to use its Multistate Bar Examination. Instead, the State Bar plans to administer its own bar exam either online or in small testing centers. This type of administration will allow the State Bar to save money and will reduce travel and lodging expenses for bar applicants. 

            Currently, the National Conference of Bar Examiner’s MBE exam can only be administered in person, in large event spaces, which the State Bar has had to pay for. The National Conference of Bar Examiners is planning to debut a new version of its exam, called the Next Gen Bar Exam, in July 2026, but, like the MBE, it must be administered in person. Twenty-three jurisdictions have already said they will use it. California, which has the second-largest number of bar takers — behind only New York — will not be following suit.

            Rather, the State Bar of California has finalized a five-year, $8.25 million contract with Kaplan Exam Services, LLC. Pursuant to the terms of the agreement, Kaplan will provide a multiple-choice question test for the California bar exam starting in February 2025. 

            This test will consist of 200 multiple-choice questions covering civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property, and torts. By 2026, Kaplan will provide essay and performance test questions for the California bar exam. According to the State Bar, the new exam will cover the same subject areas as the previous exam and will “continue to have 200 multiple-choice questions, five one-hour essay questions, and one 90-minute Performance Test.”

            Kaplan is contractually obligated to cease its retail bar preparation operations in California. In what the State Bar calls a “bold act of collaboration,” the contract provides that the State Bar will share potential copyright infringement litigation costs with Kaplan, up to $6.75 million.

            The deal with Kaplan is projected to save the State Bar up to $4 million annually, which should be welcome news since the organization’s Admissions Fund has run a budget deficit since 2022 and has depleted its reserves. In fact, according to a resolution passed by the State Bar of California’s Committee of Bar Examiners on September 30, 2024, without modifications to the administration of the bar exam, the Admissions Fund will be insolvent in 2026. 

            Despite these financial obstacles, 13 deans of California law schools asked the State Bar to delay changes to the bar exam, stating that “‘cost consideration alone’ is not a compelling justification ‘to rush toward a hasty, risky, and poorly planned’ test implementation.” 

            The State Bar, however, moved forward with its plans, which had been “in the works for 15 months,” and submitted its proposal to the California Supreme Court. On September 18, 2024, the Court denied the petition without prejudice. The State Bar believes the Supreme Court based its denial on procedural grounds, which the bar said it would “as quickly as possible.” On October 4, 2024, the State Bar submitted a renewed request to the Supreme Court to approve the proposed modifications to the bar exam.

            Nonetheless, the Court’s September 18 ruling has created “still more uncertainty and anxiety among” those who are preparing for the February 2025 exam, according to Deborah Jones Merritt, professor emerita at The Ohio State University Moritz College of Law. For instance, the application for the February 2025 California bar exam asks applicants to select whether they would like to take the exam remotely or in person. 

            The State Bar is still awaiting approval from the California Supreme Court to “be able to provide this exam in both modalities.” The State Bar plans to revise its exam web pages once the Court has issued an order in this regard. 

            In the meantime, the State Bar is conducting the “California Bar Exam Experiment” in order to “inform test candidates of upcoming and possible future changes” with respect to the exam. The experiment will be conducted in two phases. 

            Any applicant for the February or July 2025 bar exam is eligible to participate in Phase 1, which will consist of a multiple-choice-only exam administered on November 8 and 9, 2024. Phase 2 will take place “as a third day of the July 2025” bar exam, and per the California Bar Exam Experiment FAQ, more information about this phase “will be available at a later date.” 

            Participation in the experiment is optional, and individuals “who do not score well in either phase of the experiment” will not be penalized. On the other hand, the State Bar is seeking approval from the California Supreme Court to adjust, by up to 40 points, the bar exam scores of those individuals who “participate and perform well in one or both phases” of the experiment. The Court has not yet approved this.

            As Joan Howarth, emerita professor [KR1] at the University of Nevada Las Vegas William S. Boyd School of Law, said, “Everything related to the bar exam is complicated in California.”