Previous TSL.P Podcast guest Megan Zavieh has championed a cause we should all take notice.  Last fall, the CA Bar, like many other bar associations, provided bar examinees with the ability to take the bar exam virtually.  Given the COVID Pandemic, it was the proper use of technology to keep life moving forward and allow test-takers a reasonable opportunity to attempt to advance their careers.  There were some requirements to the test – one of which is causing 1/3 of the test takers a concerning set-back.

The test-takers were required to remain in the frame of their laptop's video camera during the test.  This test was proctored by a computer program.  The software has some alarms to notify the Bar if someone went outside the box.  Obviously, you don't want someone to refer to some outside materials, leave the room to ask others for help, or have someone take their place for the exam.  But, apparently, the software was a little too stringent – it identified 1/3 of the test takers in violation of the monitoring protocols! Jason Kelly at the Electronic Frontier Foundation reports: There seems to be an issue with the software monitoring algorithm. 

Stephanie Francis Ward and Lyle Moran from the ABA reported after interviewing attorneys who represent some of the test takers that their violation notice includes "… examinees' eyes being intermittently out of view of their webcams; audio not working; and examinees not being present behind their computers during the exam." This leaves little room for internet issues, computer issues, physical/psychological issues, and so on.  I am guessing you are thinking, so what, they have the right to appeal?  Well, kinda.

The test takers have ten (10) days from the date of the Notice to respond.  But, it is unlikely they will get to see the video file before their deadline.  To add to the test takers' worry, some of these notices were either unsigned or undated or both!  So, how do they respond without seeing the vide?  And do they even need to respond (to unsigned Notices), and if so, when (if the Notice is undated?  But I think Megan's quote in the ABA is spot on: "You are focusing on the exam … You are not worried about whether at all times your eyes are visible."

So think about it. The scores supposed to come out in January.  ABA reports CA Bar provides that "those applicants' October bar exam scores will be held in abeyance while hearings and appeals are resolved, and they cannot take the February 2021 exam when determinations of previous scores are pending, the bar said in a statement." If you find out you pass but may lose this round due to a tech issue, you won't have time, let alone the ability, to take the February exam.  Plus, this does not consider the time, stress, and money needed to carve out studying time and pay for the next test, prep session, and Ramen Noodles.  Even those who did pass without any issue will have a dark cloud over their passage from this botched exam.  Job applications and pending job offers are likely to go into hiatus while the CA Bar works this out.  And this is not the economy in which to be worried about jobs!

The technology, while very useful in this time of COVID, has not caught up to the unrealistic expectations of the CA Bar (apparently TN is having some issues too).  There were also issues with the technology during the testing.  One applicant was on the phone for hours trying to get the software to work correctly.  As Pasadena, California-based ethics lawyer, Erin Joyce, shared with the ABA, it really is incredible to think that 1/3 of the examinees cheated.

Unless the Bar has some solid proof the applicant cheated, they need to let them move forward unscathed.  Or, at a very minimum, place them on probation, allowing them to receive their license (if they passed) or retake the test (if they did not pass).  Technology can enhance our lives and improve our practice of law, but it is by no means perfect – much like the CA Bar response here.

Megan provided some great resources for those affected by this and for those who just want to learn and (not financially) support this case.

·         Petition to sign (no monetary donations, please)

·         Podcast episode to help Chapter 6 recipients

·         YouTube of the same content to help Chapter 6 recipients

·         YouTube encouraging other lawyers to get involved

·         Dropbox folder with resources to help Chapter 6 recipients

Thank you, Megan, for bringing this to our attention! 

To the examinees, you have my empathy. I wish you the best of luck on this!