Out-of-State Lawyers Have Options to Transfer to Virginia

Transferring A Law License to Virginia

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Recently the Virginia Board of Bar Examiners added new ways for attorneys licensed in other states get licensed by the Virginia Bar. There are now enough ways to do this to be thoroughly confusing to potential test takers. Deciding which option is right for you can be difficult, so allow me to attempt to simplify your choices. This question has been coming up regularly on reddit, so I thought I’d address it here in more detail than I can there.

Most out-of-state lawyers are asking whether they should take the Virginia Bar Exam using Option 2B or Option 3.

There are some important differences to consider in making that choice. The decision will come down to your MBE score and the way our exam is scored. So let’s take a closer look at the options.

Option 2B: Transferring Your MBE Score to Virginia

If you’ve taken the MBE within the last three years, and you scored 133 or higher, you are eligible to use this option. But that doesn’t necessarily mean you should use this option. With this option, you transfer your prior MBE score into Virginia. You then take only the Virginia Essay Exam, which is administered on day 1 of our 2-day exam. Note that this is not a special “attorneys exam” as some states have. You’ll be taking the exact same state-specific test that every other test taker will be taking.

Your total score on the bar exam will be cumulative. Your scaled MBE score (that you transferred here) will be worth 40% of your cumulative total on the exam, and your Virginia Essay Exam will be worth 60% of your cumulative total. Like the MBE, the essay exam is also scaled. Our best educated guess is that getting roughly 64% of the questions correct will equate to a scaled score of 140 on the essay exam. You must get a minimum cumulative total of 140 to pass the bar exam. So with this option, unlike option 3, your MBE score matters.

This is exactly how the Virginia Bar Exam has always been graded for all test takers. You’re scored just like every other student taking the exam, except that you’re using a prior MBE score and they are using whatever MBE score they currently obtain on the exam they are taking. A stronger performance on one part of the exam helps you overcome a weaker performance on the other part of the exam. We’ll return to that in just a moment. For now, let’s look at option 3.

Option 3: Take the Virginia Essay Exam Without Transferring Your MBE Score

If you’ve taken and passed a bar exam, and you currently hold a license to practice law that is in good standing, you are eligible for this option. With this option, you do not transfer your MBE score to Virginia. Just like with option 2B, you will only take the Virginia Essay Exam.

However, unlike option 2B, your score will be a raw score out of 100 points. You must get 64 out of the possible 100 points to pass the exam. Your score will not be scaled. But, as explained above, a 64% raw score probably equates roughly to a scaled score of 140. So in theory, you are being held to the same standard on the essay exam as every other student using any other option. This could have benefits and drawbacks depending on your situation.

Deciding Which Option is Right For You

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Assuming you are eligible for both options, the decision between option 2B and option 3 comes down to this: Will your MBE score help you or hurt you? If your MBE will help, you should pick option 2B. If your MBE will hurt, you should pick option 3. So this decision requires a little math.

If you chose Option 2B, you’d be graded like this, with your total scaled score needing to be 140 or higher to pass:

(.40 x Prior MBE scaled score) + (.60 x essay scaled score) = total scaled score (must be at least 140 to pass)

So let’s say your MBE score was 135 and you’re wondering which option you should take. Let’s do the math:

(.40*135)+(.60x)= 140 (minimum passing score)
Here, x=143 (the essay score that you'd need to get a cumulative 140 and pass)

Since a 140 roughly equates to 64%, someone with a 135 MBE score would likely be better off taking option 3. That’s because their MBE actually hurts them. They’d have to do a little better than 64% on the essay exam in order to make up for their lower MBE score.

Now let’s look at someone who got a 146 on their MBE:

(.40*146)+(.60x)= 140 (minimum passing score)
Here, x=136 (the essay score that you'd need to get a cumulative 140 and pass)

So in this example, you’d only need a 136 essay score to pass the exam, because your MBE score is higher. A 136 would equate to a lower percentage of points (unclear how much lower, but certainly lower than 64%). So someone in this situation should choose option 2B, because his or her MBE score provides some margin of safety. He or she could score lower than 64% on the essay portion, and still pass the exam.

In a perfect world where a 64% raw essay score always perfectly correlated to a 140 scaled essay score, the dividing line would be 140 on your MBE. If your MBE score is higher than 140, you’re probably better off picking option 2B. If your MBE score is lower than 140, you’re probably better off picking option 3. Here is the math at 140:

(.40*140)+(.60*140)=140

Because we can’t perfectly predict how scores will scale from exam-to-exam, this is not a precise exercise. The closer your MBE score is to 140, the less this decision actually matters. But if your MBE is more than a few points above or below 140, this starts to matter more. For example, if your MBE score is really high — say 160 — it would be crazy to pick option 3. That high MBE score will give you tons of room to mess up on your essay exam. You could score well under the 64% raw score requirement of option 3, and still pass the exam.

About the Virginia Essay Exam

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Warning: The Virginia Essay Exam is hard. It mostly tests over unique features of Virginia law, and if you rely on MBE materials, model codes, and majority approaches, you will fail it. Of the 17 topics potentially-tested on the exam, there are only 3 (Constitutional Law, UCC, and Federal Practice & Procedure) will share much with your MBE study. The other subjects all heavily test rules of Virginia law that are different from national standards and model codes. In this sense, it is much more difficult than the MEE, because the MEE overlaps on many subjects with the MBE. For some help passing the essay exam, see the LexBar online course. But you will still need additional state-specific study resources to pass the essay exam.

Admission Without Examination

Finally, some attorneys may qualify for this unnumbered option. If you meet these requirements, and pay your money, you may not need to take the Virginia Bar Exam to get licensed here. The requirements you’d need to meet are:

  1. You have been licensed to practice in one of the 50 states or D.C. for a minimum of 5 years.
  2. You have a J.D. from an ABA Accredited law school, and you have not failed more than 2 bar exams, nor failed any bar exam within the last 5 years.
  3. You have actively practiced law on a full-time (32 hours per week minimum) basis for at least three of the last five years.
  4. You have completed at least 12 hours of Virginia-approved Continuing Legal Education within the last 6 months and you are familiar with the Virginia Rules of Professional Conduct.
  5. At least one of the states you are currently licensed in is a reciprocal jurisdiction.

Reciprocal jurisdictions are all states who allow Virginia lawyers to be admitted under their own Admission Without Examination rules. Even if you meet all those requirements, Admission without Examination is still a discretionary decision by the Board. Additionally you will have to undergo a Character & Fitness investigation and pay money.

In recent years, the Virginia Board of Bar Examiners has expanded opportunities to get licensed in our state. But the regulations can be confusing. I hope this article has helped to explain more about the decision making process in picking the right option for you.