Florida Bar Exam Catastrophe: Part 2 – And An Apology From The Florida Supreme Court

On Monday, August 17th, I reported on the over 1,150 lawyers who cannot get licensed in Florida any time soon because the July exam that was moved to August is now moved to a yet to be determined day in October.  We hope that this is October of 2020! Monday’s article can be found HERE.

Since publishing the article, I have received a great many emails from applicants, parents of applicants, and colleagues confirming the anguish and confusion being experienced. I’ve also learned some very interesting information that is discussed below, including that there have been security breaches of the students involved because of the software they were told to download. There has been no clarification as to any relationship between the present Bar organization and the individual who may have worked for that organization before working for the software company that has apparently caused this problem. 

My friend from law school, David Zill, used to say that the bar exam was simply the “final hazing” that we had to get through, following 3 years of law school, in order to get into the profession. A friend of mine who was a law professor and is now in a private practice told me today that lawyers from other states view Florida’s exam as being a way to keep good professionals from competing with those of us who are here and licensed.

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My friend Dave has now passed away, and it is easy to feel that a small part of every lawyer dies with the experience of lack of sleep, stress, and any memories that might disappear and not be retrievable when so much is crammed into one little brain for such a difficult “closed book” examination.

One lawyer has indicated that “the bar exam is like being a fish that is caught by a hook, pulled up into a boat, and then thrown back after a while.” You are wounded by the hook in the experience, you almost suffocate, and then you are thrown back into the water somewhat brain-damaged, and knowing that you will be caught again and go through the same experience if you have failed.

A protest took place today outside of the Florida Supreme Court, approximately 14 people were in attendance. Maybe some of those who would have attended were afraid of retribution, for their health, or were busy trying to determine whether security breaches have compromised the credit cards that they are having to live on. Today is the day that applicants would have taken their tests had the Florida Bar administered the exam. These graduates are reasonably upset at the lack of communication and planning by the Florida Bar. One student explained, “I paid Themis (a bar review company) over $2,000 and studied over 40 hours per week just to receive an email 3 days before the exam that it has been postponed again. I would never treat a client the way the Florida Bar has treated me.”    

Graduates have complained of computer crashes and security breaches after downloading the required software for taking the bar exam. On August 10th, a group of examiners wrote a letter to the Supreme Court of Florida regarding “software failure and data breaches connected to ILG Technologies, Inc., the remote software platform chosen by the Florida Board of Bar Examiners to administer this particular examination during the ongoing COVID-19 global pandemic.” This letter provided numerous examples of faulty facial recognition software accepting pictures other than the examiner’s face (dogs, open windows, etc.), computer crashes after downloading the software, and the End User License Agreement (“EULA”) which disclaims ILG’s liability from these things. The authors of this letter were most upset by the following two provisions in ILG’s EULA:

Password Security: You are responsible for maintaining the confidentiality of your login credentials, including user name, email address and password, and for restricting access to your computer. You agree to accept responsibilities for all activities that occur under your login credentials.

Privacy Notice: We have the right to share any information provided by You to the state bar admissions office in your relevant jurisdiction. By using the Website, you consent to all actions taken by us with respect to your information in this regard.

I reached out to attorney Geoffrey Lottenber, a partner and data privacy expert at the Berger Singerman, and a fellow member of the Florida Bar for a comment regarding his thoughts on if this software is feasible for potential use in October. His response is as follows:

As of now, it does not appear so. The Florida Bar indicated it hired a top cybersecurity vendor to investigate and correct the problems that occurred in initial test runs. It appears those measures weren’t enough as test runs right before the exam also failed. Obviously, there is a financial component, but I expect the Bar will consider putting all options on the table as it approaches the re-set exam date. Personally, if COVID becomes manageable in the next month or so, I would like to see the Bar open several small in-person testing locations subject to physical barriers and social distancing. There is too much at stake for the Bar and the test-takers to risk another cancellation.

Some very bright and conscientious lawyers who have worked for me over the years have failed the bar exam on multiple occasions, which is an indication to me that it is too difficult, or perhaps not practical, and certainly undermines the confidence of many young professionals. Perhaps the bar exam, and its purposes and professional and psychological implications can be revisited after a horrendous occurrence like this. 

By removing two-hundred-year-old British common law property and other rules that have not been pertinent in the United States for many decades and covering more practical areas of law in more detail, the system can assure that exam preparation can yield more solid knowledge that can be used to help clients and the general public, and would make the studying and knowledge derived from studying more practical for all concerned. The Florida Bar did decide to eliminate Juvenile Delinquency and Dependency from the list of possibly-tested topics. This is a step in the right direction, but there are still a good many complicated subjects that a majority of lawyers will never use in their careers, while many very pertinent and practical things that applicants could be learning are ignored.    

Even when I took a much easier version of the bar exam in 1983, we were told that we only had to put the right answer down for approximately 55% of multiple-choice questions and that the very highest scores would be in the 60-65% accuracy range. How does it feel and what does it do to one’s confidence to take a multiple-choice test that requires you to go through the experience of being wrong at least 1/3 of the time?

In fact, the exam is so difficult that approximately 90% or more of those that take it have to pay to attend private Bar Review Courses, which cost between $1,000 and $4,000, and provide hours of video and in-person content.

Many students buy their Bar review books during the first year of law school and use them to study for courses so that they can concentrate on satisfying the Bar requirements, as opposed to learning what the Professors believe they need to know to be competent professionals.

As professor Kingsfield said in the 1973 movie “The Paper Chase,” “You come in here with a skull full of mush and you leave thinking like a lawyer.”  It is 2020 now, and Law Schools, bar exam authorities, and certainly psychologists may now know better and consider this an opportunity to improve the time-honored tradition that goes back to in-person full day oral examinations that were used in the days of the Continental Congress in the 1770s, and well before then.

On the brighter side, today Florida Supreme Court Justice Charles Canady indicated that “We … understand that a three-month delay in licensure is a serious matter, a disruption in life that takes a financial toll and an emotional toll,” he said in the video. “And we know that for some applicants, such a delay will cause severe hardship.”

Canady also announced that the court would allow “applicants (to) work in the law under the supervision of licensed attorneys until they can take the rescheduled bar exam in October 2020.”

This will help a little but not a lot, as we are not accustomed to how to allow someone to practice law “under supervision” in Florida. Hopefully guidelines will come out from the court and also from malpractice carriers on how this will work.

I stated in my previous article that I will be hiring two new graduates stuck in the bar exam limbo through October. I have hired one, and am interviewing others. If you are a lawyer and are willing to hire one of these many unfortunate souls to give them an opportunity to learn and grow during these frustrating times, please send me an e-mail at agassman@gassmanpa.com and I will share the resumes that applicants will permit me to share. Let’s please do what we can to help turn these lemons into lemonades while helping to fix a system that seems to have some issues.

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