What If You Fail The Bar Exam As A Lateral Attorney? – JD Advising


What If You Fail The Bar Exam As A Lateral Attorney?

Most bar exam applicants are students who need to pass the bar so that they can begin to practice law.  In these instances, the bar exam is a hurdle students must overcome to become a licensed attorney, remain employed, or find employment.  There is another group of bar exam applicants, though, that doesn’t get nearly enough attention!  We’re referring to practicing attorneys who need to take the bar exam to become licensed in another jurisdiction.  While already licensed, passing the bar exam is just as crucial for these attorneys! Keep reading to find out what happens if you fail the bar exam as a lateral attorney.

What If You Fail The Bar Exam As A Lateral Attorney?

What is a lateral attorney?

The term lateral attorney is a broad term used to encompass an attorney who starts at a new firm in the same or similar position that they had at their prior place of employment.  For example, if an attorney is a partner in their current practice and changes jobs to become a partner in a different practice, this attorney would be considered a lateral attorney.

So, why would a lateral attorney be required to take the bar exam?  This essentially comes down to certain jurisdictional requirements and the status of the attorney’s license.

If an attorney moves to a new jurisdiction, they might have to take the bar exam in that new jurisdiction.  Some attorneys might miss the deadline for transferring a UBE score but haven’t practiced long enough to earn reciprocity.  Some jurisdictions don’t accept UBE scores.  Other attorneys might not have scored high enough on the bar exam to transfer their score to another jurisdiction.  All this to say, lateral attorneys sometimes have a long road ahead of them if they move from one state to another.

It is worth emphasizing here that lateral attorneys are subject to whatever regulations the jurisdiction they are heading into might have.  This is the case even when they transfer to another office within the same firm.  Just because you might work for the same firm does not mean you can automatically practice law in another state!

Taking the Bar Exam as a Lateral Attorney

When approaching the bar exam as a lateral attorney, it’s easy to assume that you will be able to easily recall information that appears on the bar exam.  For example, if you’re a real estate attorney, you might not be worried about real property MBE questions.  Likewise, if you have handled criminal defendants throughout your entire career, you may think that criminal law and criminal procedure are going to be a walk in the park.  Be careful, though, because this might not necessarily be the case!

The bar exam approaches topics differently than most attorneys experience in practice.  Issues that rarely arise in the course of a legal career might be commonly tested on the bar exam.  Also, even if you did very well on the bar exam when you took it, you still might have a lot to catch up on if it’s been a few years.  For example, civil procedure is now on the MBE.  This was not the case if you took the bar exam ten years ago! Taking a performance test might be a brand new experience for you if it’s been several years since you took the bar exam.  Be sure to keep in mind that the exam you are going to take is not the same exam that you may have taken years ago.

Studying for the Bar Exam

One of the biggest mistakes that lateral attorneys preparing for the bar exam make is they simply do not reserve enough time to study.  Many try to approach the bar exam while working full-time.  While working and preparing for the bar exam might be feasible to a certain extent, taking some time off to study can be beneficial in the long run.  Some firms are very respectful of the time it takes to study and prepare for the bar exam.  These firms adjust workload so their attorneys can take the time they need to prepare for the bar exam.  Other firms approach the bar exam as “business as usual.”  So long as the attorney is in the office, they continue to receive assignments just as they would if they were not studying for the bar exam.

What can attorneys do to make sure they have enough time to study?  The first is to start the conversation early if you can.  Letting your employer know about your bar exam obligation and how this might impact your work is important.  This will allow both you and your employer to set expectations, work through priority obligations, and discuss what a reduced work schedule might look like.  To prepare for these conversations, do some due diligence and walk in with a study schedule (a draft will do!). This can serve as a valuable reference point as you work with your employer to determine responsibilities during bar prep.

Another consideration: a tutor.  If it’s been a minute since you’ve prepared for the bar exam, or you know you’re going to be juggling quite a bit as you prepare, working with a tutor might be beneficial.  They can work with you to put together a study schedule based on your other obligations that addresses your strenghts and weaknesses.  Additionally, tutors can provide tailored feedback so you can identify any knowledge gaps right away.  This might be helpful if you need to spend more or less time on a subject than is suggested by your commercial bar prep course.  Having someone willing to provide accountability can be invaluable as you juggle your other work obligations.

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What Happens If I Don’t Pass?

It can be difficult to learn that despite all of your best efforts, you did not pass the bar exam.  As a lateral attorney, this can bring its own set of worries. For example, if you’re moving for a new job, this might impact your moving schedule.  If you are clerking for a law firm, this might impact your timeline to becoming an associate.

One way to remove some of this worry is to discuss with your employer what their policy is if you are not successful on the bar exam.  Some law firms allow you to continue working while you wait to retake the bar exam.  Other law firms might need you to be licensed in order to keep you on the payroll.  Understanding the expectations in advance can be invaluable.

Additionally, you’ll also have to consider how you would like to proceed.  Working in a JD-preferred job for a while might allow you to save money so you can take time off to study when you decide to take the bar exam at a later date. Some attorneys decide that they simply don’t want to retake the bar exam again.  Thes eattorneys stick with a JD-preferred job for the long term.  Depending on other obligations you might have, one of these options might be more attractive than another.

The most important thing to realize is that not passing the bar exam is not the end of the world.  You can still go on to have an incredibly successful career in your new locale!


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