Tuesday, November 20, 2007

South Carolina's bar exam controversy is not going away

S.C. Supreme CourtThe South Carolina Supreme Court has finally spoken. But that state's bar exam controversy is still with us.

In a statement issued on Monday, November 19, 2007, the Supreme Court provided further details of its November 2 decision to nullify all negative scores on the wills, trusts, and estates (WTE) portion of South Carolina's July 2007 bar exam:
South Carolina Supreme Court statementOn October 31, 2007, the examiner of the WTE section reported to the Clerk's Office that he had made a scoring error in his report of the examinees' scores. This was not a "re-grade,” but merely an error in transcription that was discovered as the examiner prepared to transmit the examination books to the Court. The error was that an examinee who had previously been reported as having passed the WTE section, had in fact failed the section. The Clerk of Court then reviewed the examinee's other essay section scores and discovered that the examinee's WTE failure, coupled with the examinee's failure on one other essay section resulted in the examinee not receiving an overall passing score. The examiner's initial report of a passing score was a scrivener's mistake. The scoring error and its consequence was reported to the full Court at its conference on November 1, 2007, at which time the Court was faced with determining what action, if any, to take with regard to the error.

After deliberation, the decision was made to eliminate the entire WTE section from consideration. In making this decision the Court determined that it would be inappropriate to reverse the affected examinee's[2] previous notification of successful completion of the examination. See Rule 402(i)(5) ("The results reported by the Board of Law Examiners is final…”). This decision then raised the question of fair and equitable treatment for those examinees, who, like the examinee affected by the reporting error, had failed the WTE section and only one other section, thus resulting in an overall failing score. It was against this backdrop that the Court made the decision to eliminate the WTE section from consideration so as to provide equal treatment to those in exactly the same position as the affected examinee. The Clerk advised the Court that this action would result in an additional twenty examinees receiving overall passing scores on the examination.

No consideration was given to the identity of any examinee who would stand to benefit from this action. Moreover, the action was not influenced by any appeal, campaign, or public or private outcry. It was simply deemed the best choice among several problematic alternatives.
Neither The State (South Carolina's leading newspaper) nor Not Very Bright (an astute blogger) is buying the court's explanation. They shouldn't. Each of these observers has identified some serious holes in the court's explanation.

S.C. CapitolAccording to The State's account, the Supreme Court's November 20 statement came as a surprise to the chairman of South Carolina's bar examiners: "Board chairman George Hearn told The State last week that no one from the high court nor any of his examiners reported the scoring error to him after the scores were released initially." Moreover, as The State has steadfastly reported, the court's decision to reverse the final grades represents an "apparent[] violat[ion] [of] its own March order, in which it established a rule that said, 'The results reported by the Board of Law Examiners are final and no applicant shall be allowed to seek re-grading or any other review of the results of the examination."

Not Very Bright's reaction, contrary to that blog's name, is even more illuminating:
I’d be interested in someone smarter than myself making sense of why you would pass twenty persons who you knew didn’t meet the qualifications to be a lawyer in order to fix a “transcription error” for one person. And why if your goal is to allow that one erroneously-passed person to remain “passed,” you simply wouldn’t leave it be rather than throwing out a section? And how does this square with the Facebook page and the Harrison and Burch interviews admitting contact with the Court and/or examiner?
Why indeed. These steps, which seem eminently logical, appear to have lain far, far beyond the consideration of South Carolina's highest court:
  1. Petitioner X in fact flunked the bar exam. Due to a "scrivener's error," Petitioner X was wrongfully told that she or he had passed.

  2. It seems within the power of the court and of the bar examiners to inform Petitioner X that she or he would not be administered the oath of office as a new lawyer, since in fact she or he had flunked the bar exam.

  3. Insofar as the court wished to privilege the erroneous reporting of Petitioner X's exam results over her or his actual performance, the logical (and obvious) remedy would have been a decision to qualify Petitioner X as a new member of the bar.

  4. Of course, this decision instantly creates two potential vectors of unfairness:

    1. Allowing Petitioner X alone to pass disadvantages every other person who similarly flunked the bar exam as a whole on the basis of the wills, trusts, and estates question.

    2. Admitting every person who flunked the bar exam because of the wills, trusts, and estates question ─ including Petitioner X ─ cheapens the achievement of every person who passed the bar by performance rather than court order. It also creates unfairness, as palpable as it is perceived, vis-à-vis those who flunked the bar on the basis of questions besides the wills, trusts, and estates question that the Supreme Court elected to nullify.

  5. A decision to admit 20 people to the bar ─ none of whom, even by the Supreme Court's account, actually passed the exam ─ exposes the high court to speculation about ex parte manipulation of the process, improper political influence, and the deeper meaning of Facebook entries. South Carolina and its bar deserve better.

  6. Because the integrity of the bar exam process is paramount, the only defensible decision before the court was either to admit Petitioner X alone, on the basis of a scrivener's error in her or his favor, or to stand on the basis of Petitioner X's actual bar exam performance and to deny her or him admission to the bar.
I endorse Not Very Bright's conclusion: "I’m still hoping for that restoration of confidence in the process, but at the moment I can’t make sense of any of this."

Update, 11/20/07, 11:30 p.m.The South Carolina Bar has evidently accepted the Supreme Court's explanation. But the court's statement, in addition to the logical and legal flaws identified by The State and Not Very Bright, is well-nigh impossible to square with comments by House Judiciary Committee chairman Jim Harrison, made just before the swearing-in ceremony for South Carolina's newest lawyers, that his daughter Catherine's "hard work" in lobbying the high court enabled Catherine Harrison and 19 other candidates to be admitted to the bar.

A month ago I had the privilege of witnessing many members in my first class of graduates take their oaths as the newest members of the Kentucky bar. It was a special occasion, at once solemn and festive. I wish that South Carolina's lawyers could say the same of last week's ceremony in Columbia.



Anonymous Anonymous said...

Furthermore, the fact that it was the Wills & Estates question where the transcription error happened is completely random. What about the people who failed two written sections, but passed the Wills & Estates? They were just too unlucky to not fail a section where a transcription error that caused a student who would have otherwise failed to pass? How is this fair for them?

11/20/2007 8:23 PM  
Anonymous Anonymous said...

Dean Chen--

You've hit the nail on the head. Your statements reflect the sentiments of every SC lawyer I've spoken to about this mess. The whole situation just doesn't make sense.

I want to believe that there are some things in the legal profession that are purely merit-based, with the bar exam being chief among them. However, I can't help but think that the applicants' connections were somehow responsible for their passing the exam--at least based on the information publicly available so far. Truthfully, its made this young lawyer very apathetic about our state-court system and the rule of law in SC.

(For what its worth, I was a student at USC Law when you were a dean candidate and I was very impressed. Its heartening to see that someone outside of SC is offering thoughtful commentary. Thanks!)

11/20/2007 8:41 PM  
Anonymous Anonymous said...

Dean Chen, your post is, I believe correct, and these statements by the Supreme Court seem logically flawed (not only in the decision itself) but more disturbingly how the explanation itself doesn't account for other independent statments that came out about the bar scores. Particularly internet communications made prior to Oct. 31 (prior to the date the bar examiner decided to check the scores one last time, days after he was done grading and turning in final scores) and these two persons who made the communications, and who were ultimately benefited by changes of the bar exam grades, made comments regarding the section that this bar examiner did find - mind you in the furture - a mistake on the exam. They literally make Tom Cruise in the minority report look like an amatuer by the time lines.

The fact that the one of these persons father is the head of the S.C. House Judiciary Committee doesn't help matters. Nor does it help that he has credited his daughter's "hard work" for paying off in getting the exams scores overturned. I am left feeling furious, but I am sure, like for anon above, it will turn to apathy soon enough. That is unfortunately what I think the S.C. Sup. Court is expecing.

Here is a link to that article.


11/20/2007 9:55 PM  
Anonymous Anonymous said...

The South Carolina Bar issued a press release concerning the Supreme Court's explanation: http://www.scbar.org/news/2007/1120.asp

11/20/2007 11:23 PM  
Anonymous Anonymous said...

This is only tangentially related, but perhaps gives a flavor of the relevant legal/political environment - A long time ago, I was planning to take the SC bar exam after I graduated, but instead decided to take another state's exam. In the packet for the SC fitness application that I received, along with the background forms, were the reference letter forms (questions) that you needed to send to people to fill out and who would then send them directly to the powers that be.

On the list of questions for reference writers was something along these lines: "Does the candidate come from a good family?" True story, although it's been a good while back, and I can't remember the exact language. I seriously doubt that they still use that question.

11/21/2007 3:00 PM  
Anonymous Anonymous said...

Nono, you don't understand. The SC bar has decreed that "in making the additional statement, the Court has put to rest any speculation concerning the facts." You can't speculate anymore... you just can't.

I've always thought of the bar admission process as an elaborate charade designed to (1) give the legal profession a veneer of integrity, in spite of the number of smarmy lawyers out there, and (2) enrich BarBri and the local bar associations.

Yet I've always assumed that the process was somehow honest, and that all of the self-important people who administer bar exams would raise hell if something like this happened. Instead, they help the Supreme Court sweep it under the rug, because who wants to be the poor S.C. lawyer who insults the Supreme Court.

Bar associations and "legal communities" generally do more harm than good.

11/24/2007 5:08 PM  
Anonymous Anonymous said...

Dean Chen,

Isn't it true that you were passed over for dean of the University of South Carolina?

11/25/2007 4:20 PM  
Blogger Jim Chen said...

In response to Anonymous, 11/25/07, 4:20 p.m.:

Yes, I was an unsuccessful candidate during spring 2006 for the deanship of the University of South Carolina School of Law. I disclosed this in my original post on South Carolina's bar exam scandal.

11/25/2007 4:36 PM  
Blogger David M. Knights said...

Dear Dean Chen,
As a 1986 graduate of the U of L law school, I remember the trauma of the bar exam 21 years ago. I agree with your analysis. The solution of the SC supreme court seems to be the worst possible solution.
David Knights, JD '86

11/25/2007 7:55 PM  
Anonymous Anonymous said...

I should preface this by admitting that in general i am opposed to bar exams, bar associations, and any other form of "consumer protection" except in exceptional circumstances. The market should decide who is a good enough lawyer, not a bunch of busybodies. I would get behind a vague kind of ethical and morality policing in this area, but not quality control. So maybe my bias is showing.

But there is a defensible reason why this guy and this guy only should be admitted. My understanding is he was told he passed. In that, he or she has presumptively organized his life around being a lawyer, now. Indeed, he has probably represented clients, submitted documents to court, and so on. The reason for allowing him and him only, then, would be not to upset these expectations.

But that extraordinary circumstances, they could argue, shouldn't justify opening the gate entirely. Nor, would it seem unfair in any normal sense of the word. it is not that they were entitled to something they were denied. Nor was his admission based on any unfair motives, such as bribes, or race, or whatever. You can quite rationally say "we are not going to jerk this guy around." Fair enough.

And the danger is what kind of precedent we create. What if we go back and discover that, say, Lawrence Tribe failed his bar exam all those years ago. Do we say that he shouldn't have been a lawyer all those years? Or do we say at some point that its too late--the statute of limitations has passed?

Then again, I took the VA Bar, allegedly the third toughest in the nation and, after that, I have to say, bluntly, that if you can't pass the bar, you are truly pathetic.

11/25/2007 9:10 PM  
Blogger . said...

I don't remember my swearing in as being "solemn and festive" as much as being an lengthy, and somewhat annoying stopover on my way to do an important title search in a county south of the city.

Still, it was nice to see some of the same faces I'd seen through law school orientation, classes, exams, bar review and bar exam there being sworn in. More importantly, it was nice to have them see my face when I had fretted for years if I deserved to be among them.

11/25/2007 9:46 PM  
Anonymous Anonymous said...

Doesn't this decision --to pass 21 examinees who objectively failed the test-- defraud the public, who assume that the lawyers they are paying to advise them are in fact qualified to do so? And because the public will not know which 21 "lawyers" are the beneficiaries of this decision, will not all lawyers find their credibility weakened? If the SC Supreme Court applied this logic to a criminal case, it would release 21 properly convicted prisoners because one of them had been wrongly told he was innocent. This looks beyond stupid to me.

11/25/2007 10:06 PM  
Anonymous Anonymous said...

Just be happy that the individual in question did not have all sections of his/her test results transcribed incorrectly. Everyone would then have passed the SC bar.

11/25/2007 11:05 PM  
Blogger Labamigo said...

Seems to me the Court should stop digging.

The results as reported are "final".

Unless the Court changes them.

11/26/2007 10:43 AM  
Anonymous Anonymous said...

I don't think the SC Supreme Court's explanation makes sense, but I think fear of retaliation by the many powerful people who do not want this pursued will probably end things here. Is there a way to get a federal investigation started, or must my state continue to stew in the vile corruption of a powerful few?

11/26/2007 11:48 AM  
Anonymous Anonymous said...

This is completely unfair to those who failed, say, the Insurance essay and passed the Wills, Trusts essay. Why Wills, Trusts? The SC says that the essay was not flawed in grading or in the questions... it was just a scrivener's error.

If it was just a scrivener's error then why is the Supreme Court so damn confident that there were no other scrivener's errors? I mean this one was not caught until after the results were released for crying out loud.

Why is it equitable to allow those who failed wills to get a free pass, but not those who failed one different essay? Again, why do those who failed wills get this lucky pass?


Also, as someone pointed out earlier, if it truly was due to a "scrivener's error" then what "hard work" is Harrison talking about that his daughter did to get the scores thrown out? He said this in the Greenville newspaper, so the Supreme Court can't just ignore it. What hard work is his daughter talking about on Facebook?

There are too many questions here and the Supreme Court's explanation answers none of them. In fact it makes their story more unbelievable than before because it appears that they have come up with a "we tried to help these poor people out" explanation, but Harrison's comments directly conflict with their "scrivener's error" explanation.

Supreme Court of SC: There are too many holes in your explanation. Please give a real explanation and let us know how Harrison and his daughter's hard work had anything to do with a simple scrivener's error.

11/28/2007 3:16 PM  
Anonymous Anonymous said...

absolutely ridiculous that SC courts allowed this. It's pretty sad.
Licensed SC, GA

4/03/2008 3:16 AM  
Anonymous Anonymous said...

"Not Very Bright" took down all his posts about the SC Bar scandal. I wonder why?

9/03/2008 11:31 AM  
Anonymous Anonymous said...

What the hell is it in this state?

I didn't grow up here, but after living in SC for 12 years, I am still utterly amazed at the prevailing habit of rewarding pissed poor performance and behavior while punishing excellence and achievement!

Only in SC would a supreme court be able to rationalize with a straight face the passing of 20 failing applicants because of a single transcription error.

9/09/2008 9:22 AM  

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