Bar Association Technology Security – Do as I say, not as I do…

I realize that many of my editorials of late have been about COVID and the upcoming bar exams.  We should all have a lot of empathy for these test-takers.  We were all there:  The stress of studying, the continued limbo they face before, during, and after the test as they wait for the release of test results, and the worry that failure sets back your career.  But I think as practicing attorneys, we need to take some scrutiny at the state bar associations.

Many states have moved to online exams.  Personally, I think this is great!  No one wants to worry that they might get sick due to an effort to advance their careers and pay off their student loans.  The question I have is, Do the state bars have their technology ready to provide secure remote exams?  This should not be a difficult task to achieve.

We have a responsibility to be competent in our use of technology.  See my discussion of ABA Rule 1.1 Comment #8.  Our lack of competency can be abated by the hiring of competent third-party providers. But are state bar associations doing their due diligence?  The Michigan state bar exam had a portion of their exam delayed due to a cyberattack.  I can only imagine the stress the examinees were suffering at that time. 

It was alarming to learn that about 140 recent LSATs exams were “lost” by the provider.  Those victims were given a refund and the opportunity to retake the test.  Imagine saying that to a client and the possible resulting bar complaint, legitimate or not, and lawsuits, legitimate or not, resulting from stress, lost time, and delay (in your starting career).  It just seems that the providers could have been better prepared for these scenarios.

Now, at least one of the three third-party exam providers is saying they will not be ready for the fall exam.  And I have a feeling the other two may not be that far behind the first.  If exams can be taken on laptops that will lock out the rest of the drive, and start and then stop at particular times, you should be able to have software that can automatically save a copy on the test-tacker’s machine for back up and upload a copy to the states’ bar portal.  (Proctoring can be solved with Zoom conferencing [maybe not all test takers in one Zoom conference call but spread out over several proctored Zoom conferences].)

Imagine asking a judge for an extension because we don’t have the software system to go to trial?  I’m not talking about computer crashes or hardware failures – you just don’t have the means to practically, competently, and substantively go to trial.  I think the trial judge would ask why did the attorney even bring the suit?

These are unprecedented times in the COVID era.  But, the bar associations should be held to the same standards as those they govern.  Clients have recourse; bar examinees do not. The argument about Are Bar Exams Really Needed? is not the topic of this editorial.  But these apparent systemic failure do not help those on the “pro bar exams” side. Meanwhile, it seems that attorneys may be held to higher standards regarding their own competence in technology versus the bar associations that regulate them:  This is where we should take note.

Happy lawyering!