Pre-Incorporation Contracts (UBE & NextGen UBE)

There are formalities to forming a corporation, but there may be tasks to be completed even before the corporation has been formed. Those acting on behalf of a corporation that has not yet formed are called promoters, and there is much to know both about promotors and those with whom promoters deal. 

First, promoters have a fiduciary duty to each other that is breached if they secretly pursue financial gain at the expense of the other promoters. They also have a fiduciary duty to the corporation both of fair disclosure and of good faith. 

If a promoter profits by selling property to the corporation, that might be a breach of fiduciary duty, but not if the promoter disclosed all material facts to an independent board of directors. Even if the board is not independent, a promoter will escape liability if the subscribers (those who agree to buy the initial shares offered by the corporation) either knew of the transaction at the time they subscribed, or unanimously ratified the transaction after full disclosure.

Promoters might also be liable if plaintiffs can show that they were damaged by fraudulent misrepresentations or a fraudulent failure to disclose material facts. 

Oftentimes, promoters will enter into pre-incorporation contracts with third parties. By the nature of pre-incorporation contracts, the corporation does not yet exist, and so the corporation is not bound on these contracts unless the corporation expressly or impliedly adopts the promoter's contract. An implied adoption can occur, for example, if the corporation accepts a benefit of the contract. 

Promoters, on the other hand, will be liable. Anyone who acts on behalf of a corporation knowing that it is not yet in existence is jointly and severally liable for obligations incurred. That liability continues after the corporation is formed, even if the corporation adopts the contract and benefits from it (in such a case there may be liability for both the corporation and the promoter(s). For a promoter to be entirely released from liability, a novation is required (a formal agreement between all parties releasing the promoter from liability).

Might be noted, however, that even given the above, a promoter who is held personally liable on a pre-incorporation contract may have a right to reimbursement from the corporation to the extent of any benefits received by the corporation. This type of contribution or indemnity is often available when multiple parties are deemed jointly and severally liable. 

Scoring of the NextGen UBE

Three components:

Multiple Choice Component: 49% of score 

Performance Tasks: 30% of score 

Integrated Question Sets 21% of score 

 A raw score on the 3 components above is converted to a scaled score from 500-750. That's to say, a 750 is the best score one can achieve on the exam. Each state will determine its own passing score within the range above. Though states can make that determination, the NCBE has recommended a passing score from 610-620. 

 Six states administered the exam this past July, each following the NCBE recommendation. The passing scaled score for each is as follows: 

Missouri 610 

Washington 610 

Oregon: 615 in July '26 only and then rising to 620 thereafter.

Connecticut: 616 

Idaho: 616 

Maryland: 616

Some Important NextGen UBE numbers To Keep in Mind

Some important NextGen UBE numbers to keep in mind:

Multiple Choice Sections: 3 sections of the exam, 40 questions per section. Recommended time, 1.8 minutes per question, and with 40 questions per section, a total of 72 minutes per section. With 3 sections, the multiple choice sections will take up (72 x 3) minutes of the exam, or 216 minutes. Integrated Question Sets: 3 sections of the exam, 2 integrated question sets per section. Recommended time: 24 minutes per set, and with 2 sets per section, a total of 48 minutes per section. With 3 sections, the integrated question sets will take up (48 x 3) minutes of the exam, or 144 minutes. Performance Tasks: 3 sections of the exam, 1 performance task per section. Recommended time: 60 minutes per task, and with 1 task per section, a total of 60 minutes per section. With 3 sections, the performance tasks will take up (60 x 3) minutes of the exam, or 180 minutes. Total time: 

(216 + 144 + 180) = 540 minutes 540/60 = 9 hours of testing.

NextGen UBE: Foundational Skills (Legal Writing & Drafting)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group D: According to the NCBE, the purpose of Group D is to assess the extent to which an examinee can complete a legal writing or drafting task based on the relevant rules and standards and consistent with a client's objectives, interests, and constraints. The specific tasks that will be tested to measure this purpose are as follows: 

~Draft or edit correspondence to a client explaining the legal implications of a course of action, updating the client on the status of a client's matter, and/or providing advice on the next steps to be taken in a matter. 

~Given draft sections of a complaint or an answer to a complaint in a matter, identify language that should be changed, and make suggestions on how that language should change, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given draft sections of affidavits that must be submitted to the court or other tribunal in a matter, identify the best affiant and best language to support each element to be proved, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given draft provisions of a contract or other legal document, identify language that should be changed, explain why it should be changed, and suggest how that language should change, consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

~Given a collection of legal sources, draft specified sections of a document, such as a memo, a persuasive brief or letter, or another common document, demonstrating skill at formulating an original legal analysis. 

~Draft or revise discovery documents consistent with the facts, the relevant legal rules and standards, and the client's objectives, interests, and constraints. 

NextGen UBE: Foundational Skills (Legal Research)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group C: According to the NCBE, the purpose of Group C is to assess the extent to which an examinee can identify and implement legal research strategies, including preliminary issue-spotting, working with provided resources, developing and refining a theory of the case, and reaching closure on research questions. The specific tasks that will be tested to measure this purpose are as follows: 

~In a matter that requires legal research, identify the research questions that need to be answered. 

~Identify ambiguities in the language, standards, elements, or factors of a provided resource.

~Identify efficient legal research strategies, methods, or tools (including appropriate search terms) that are likely to uncover other legal sources or documents that are likely to assist in the interpretation of a provided resource to advance your understanding of a client's position.

~Given a collection of legal sources, identify the roles and characteristics of the sources, including their authoritative weight.

~Given one or more judicial opinions, identify the facts in a matter that are analogous to and/or distinct from the dispositive facts in the opinions.

~Given a collection of legal sources, identify other sources, search terms, or research strategies that might be used to update sources or find additional sources. 

~Given a collection of legal sources, identify which sources are relevant to or dispositive of a legal issue in the matter. 

~Given a collection of legal sources, identify whether the sources are sufficient to complete an assigned research task or other lawyering task. 

NextGen UBE: Foundational Skills (Negotiation and Dispute Resolution, Client Relationship and Management)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group B: According to the NCBE, the purpose of Group B is to assess the extent to which an examinee can identify lawyering strategies within the lawyer-client relationship, based on the relevant rules and standards and consistent with a client's objective, interests, and constraints. The specific tasks that will be tested to measure this purpose are as follows: 

~Identify which claims to recommend bringing. which remedies to recommend seeking, which evidence to present, which arguments or defenses to raise, or how to respond to arguments or defenses, and in a transactional matter which provisions to recommend including, based on the relevant legal rules and standards and consistent with a client's objectives, interests, and constraints. 

~In a matter requiring review of provided materials, such as police reports, interview excerpts, or discovery, identify gaps in information obtained, suggestions for improvement, and/or grounds for objection (if applicable).

~Identify two factors that favor a client's position or two factors that favor an opposing party's position in a matter. 

~Identify two benefits or two drawbacks of a proposed resolution of a dispute, consistent with a client's objectives, interests, and constraints. 

~Identify potential terms of a contract or settlement agreement that could advance negotiation or resolution.

~In a matter in which a client has multiple stated objectives, explain why a legal rule or principle, as applied to the client's situation, may make one of those stated objectives attainable or unattainable. 

~Determine the best strategy to identify the client's needs and achieve the client's goal and objectives.

It's worth noting that the Group B skill is also where a small selection of the Model Rules of Professional Conduct will be tested. 

NextGen UBE: Foundational Skills ( Issue Spotting and Analysis, Investigation and Evaluation)

There are four categories of "foundational skills" that the NextGen UBE aims to test:

Group A: Issue Spotting and Analysis, Investigation, and Evaluation

Group B: Client Counseling and Advising, Negotiation and Dispute Resolution, Client Relationship and Management

Group C: Legal Research

Group D: Legal Writing and drafting 

This post will focus on Group A: According to the NCBE, the purpose of Group A is to assess the extent to which an examinee can apply fundamental legal principles and legal reasoning to analyze given fact patterns. The specific tasks that will be tested to measure this purpose are as follows: 

~Identify which legal concepts and principles are likely to affect the outcome of a matter based on the information provided.

~Identify which facts are likely to be relevant to or dispositive of a legal issue in a matter. 

~Identify the applicable standards of review and/or burdens of proof that will apply to legal issues in a matter.

~Identify the strengths and weakness's of a client's position or an opposing party's position based on the relevant legal rules and standards. 

~In a matter that requires additional factual development, identify which facts need to be investigated, or the best strategy for investigating or eliciting those facts, in order to be able to evaluate the strengths and weaknesses of a client's position or an opposing party's position based on the relevant legal rules and standards. 

~Assess the probable outcome of a claim, motion, discovery matter, defense, or objection based on the relevant legal rules and standards.

~Identify the applicable or dispositive language, standards, elements, or factors of a provided resource (such as a statute, contract, or judicial opinion). 

The next post will focus on Group B!

The Structure of the NextGen UBE

There's plenty yet to learn about the NextGen UBE. But with a few jurisdictions administering the exam as early as this coming July, it's important to understand some basic facts about this test. Below are some fundamentals about this new exam. This post here focuses more on the structure of the exam; future posts will have a heavier focus on content. 

~ The test runs 9 hours. There are three sessions: a morning session of 3 hours, an afternoon session of 3 hours, and then one additional morning session of 3 hours. As for a second 3-hour afternoon session, that won't be a part of the NextGen exam, but I do expect some jurisdictions to take advantage of that time period to administer a state-specific component. 

~Each of the three sessions of the exam has the exact same format: 40 multiple choice questions, 2 integrated question sets, and one performance task. Adding up the three sessions amount to in total 120 multiple choice questions, 6 integrated question sets, and 3 performance tasks. Not all multiple choice questions count towards the score: 100 of the 120 count, and 20 are used as experimental questions for future tests. Likewise, 1 of the 6 integrated question sets will be a non-scored experimental section.

~In each of the three sessions, test takers will have 72 minutes to answer the multiple choice questions (1.8 minutes per question), 48 minutes to answer the integrated question sets (24 minutes per set), and 60 minutes to answer the performance task.

~Multiple choice questions are presented in two formats; in one format you're asked to select 1 answer from a list of 4 answers; in the other format, you're asked to select 2 answers from a list of 6 answers. Partial credit is available when asked to select 2 answers. 

~Integrated Question sets are presented in two formats: drafting sets and counseling sets. Drafting sets contain one medium-length question, and there are two types: one type provides a draft document (or sections of a draft document), and asks candidates to identify errors while explaining the errors or suggesting revisions. The other type asks candidates to draft a document or portions of a document. Counseling sets contain both short answer questions and multiple choice questions. Partial credit is available except for multiple choice questions requiring only one answer. 

~Performance tasks are presented in two formats: standard performance tasks which focus on a single, longer writing assignment, and legal research performance tasks which include multiple choice questions and short answer questions, followed by a medium answer question. Partial credit is available except for multiple choice questions requiring only one answer. 

~The lowest scaled score that one can receive on the NextGen UBE is 500; the highest scaled score that one can receive is 750.  Multiple choice questions contribute to 49% of the score, integrated question sets contribute to 21% of the scaled score, and performance tasks contribute to 30% of the score. 

Look out for more on this exam, as more information is disclosed! 

Family Law Added to Next Gen Bar Exam

In a bit of Next Gen Bar Exam news, Family Law has been added to the content that will be tested on the Next Gen Bar Exam. Although states will have the option of administering this new test in July 2026, Family Law will not be tested until July 2028.

The other change noted is that that states will have the option to administer the current UBE until 2028, one year later than previously announced. 

See more @ https://www.ncbex.org/news-resources/update-nextgen-exam-content-extends-availability

Florida and the Next Gen Exam

Some news out of Florida. 

Although it's not yet known whether Florida will eventually adopt the NCBE's Next Gen Bar Exam, it won't be doing so when the new exam is first offered in July 2026. Those taking the Florida bar exam in July 2026 will continue to take the exam as it's currently taken today with the Florida portion of the exam and the MBE. 

More on this announcement is @ https://www.floridabarexam.org/web/website.nsf/file.xsp?open&documentId=5088E86827EF7FB7852589DA0067BE41

Next Gen Bar Exam: Content Scope Outlines

2026 isn't right around the corner. That said, those entering law school this coming fall will take the Next Gen Bar Exam in July 2026 if they are located in a jurisdiction administering it. 

The content scope outlines for this exam are already posted. This is the clearest indication that we have as to what will and will not be tested on the exam. Safe to say that a whole lot that is tested on the current exam will be dropped from the new one. 

The content scope outlines for the Next Gen exam are located @ https://nextgenbarexam.ncbex.org/pdfviewer/ncbe-nextgen-content-scope-may-24-2023/

Next Generation Bar Exam

Changes to the Uniform Bar Exam aren't scheduled until 2026, but I'll be posting any updates about that exam and they come in. For now, the test will be testing 8 substantive areas, and 7 skills.

The 8 substantive areas (what the NCBE is calling "Foundational Concepts and Principals") are as follows:

Civil Procedure; Contract Law; Evidence, Torts; Business Associations; Constitutional Law; Criminal Law; and Real Property.

The 7 skills (what the NCBE is calling "Foundational Skills") are as follows:

Legal Research; Legal Writing; Issue Spotting & Analysis; Investigation and Analysis; Client Counseling & Advising; Negotiation & Dispute Resolution; and Client Relationship & Management. 

Plenty more to come over the months and years...

Changes are Coming

Big changes are coming to the bar exam but not for a while. The test will be completely revamped with the new test right now set for administration in either 2025 or 2026. More updates to come here on the blog as we learn more and provided the information is available I'll also transition this website into something more relevant for the new exam.

But, again, that's quite a while away...

https://www.ncbex.org/news/ttf-prelim-recommendations/