Friday, November 09, 2007

Insert bad "bar" pun here

First of all, I apologize for my recent extended bout of non-blogging. I've been, ah, on strike. Yeah, that's it.

Anyway, I wanted to blog about something that caught my eye: Last week the South Carolina Supreme Court issued an order stating that the results of the "Wills, Trusts, and Estates" essay portion of the South Carolina bar examination would not be considered in grading the bar exam. As a result of this order 20 people who had received a failing grade had their grades changed to a passing grade. The State reported today that among the twenty are the daughter of the South Carolina House Judiciary Committee, Rep. Jim Harrison, and the daughter of a state circuit court judge, Paul Burch.

Moreover, The State reports, the grade change came after both Rep. Harrison and Judge Burch contacted bar officials about the results. Rep. Harrison contacted the clerk of the South Carolina Supreme Court, as well as the attorney who is the chairman of the South Carolina Board of Law Examiners. Judge Burch also contacted the chairman of the Board of Law Examiners.

Here's the problem: In June of of this year, the State Supreme Court issued an order [Correction: The Court issued the order in March; the new rule became effective in June] changing the appellate court rules to remove a provision that allowed appeals of bar exam grades. The new rule (and the old one) contain this provision: *

(7) Prohibited Contacts. An applicant shall not, either directly or through an agent, contact any member or associate member of the Board of Law Examiners or any member of the Supreme Court regarding the questions on any section of the Bar Examination, grading procedures, or an applicant's answers.

You can read the order here.

Prior to that, the court rules governing the bar exam contained a specific procedure that allowed bar applicants who failed the exam to review the essay questions, model answers, and the applicants' responses, and to petition the state Supreme Court to have a section regraded. In amending the rule, the Court eliminated the appeal process, while leaving in place the "prohibited contacts" language. *

I know of two SC lawyers (one has since moved to another state) who, after initially receiving failing grades on the SC bar exam, requested to review the essay questions, and discovered errors that, when corrected, resulted in these attorneys being given passing grades. (In one of these cases, the attorney told me that the model answer actually contained an error of law, which he identified - one wonders how many people got unfairly docked on that year's exam and never knew it). As far as I know the Supreme Court has never published any information on the number of applicants who successfully appealed an initial failing grade. I would imagine that the number is small, and it's probably just a fluke that I know of two such people. But maybe there are more than I think.

Anyway, the old South Carolina appellate rules allowed bar applicants a formal appellate procedure. But on March 12 of this year, our Supreme Court changed its rules to deprive people of this option. In the order changing the rule, the Court pronounced: " In our opinion, the internal review process conducted by the Board is more than sufficient to insure that any error in grading is determined before the examination results are released."

Well, that is manifestly not accurate, then or now.

The difference is, then, if you were Joe Shmo, you could, if you had reason, appeal a failing grade. Now, you can't. But it sure looks like if you have the right parents, you can still get around the rule.

Initially, I understand, the Supreme Court gave no reason for its decision to toss out a whole section of the exam. Today, after The State ran its story, the Court issued this statement about the decision:

The results of the July 2007, South Carolina Bar examination were released on the Judicial Department website at 4 pm, October 26, 2007.

On October 31, 2007, a scoring error reported by the examiner of the Wills, Trusts, and Estates Section, was communicated to the Clerk of Court.

On November 1, 2007, the full Court was advised of the examiner's communication and determined that owing to this error the results of the affected section would not be considered.

I still have two questions: 1) Did the examiner discover and report the error because of the communications by the legislator and the judge with the Chairman of the Board of Bar Examiners? And 2) Was the error so egregious that it justified tossing the results of an entire essay portion of the bar exam?

Oh, and 3) Does the South Carolina Supreme Court still think the SC Bar examination grading and review procedures are error-proof, justifying the Court's new rule cutting off any appeals by the ordinary people taking the exam?

For all I know the 20 people who had their grades changed from Fail to Pass deserved it. But judging from the available information, it sure looks like if two of them didn't have well-connected fathers, they all would have been shit out of luck, as they say in the legal field. If there was an error in the exam or the scoring procedure I do NOT have a problem with correcting it - in fact, I think the Court was wrong to change the rule (it's not like THOUSANDS of people take the SC Bar exam every year, so it couldn't have been that burdensome). I do have a problem with the appearance created here of special treatment for people with the right connections. It just doesn't look good. I hope my impression is wrong, but until the Court and/or the Board of Bar Examiners do a bit more 'splaining, the negative impression isn't going to fade away.

By the way, here's an interesting blog post from Brad Warthen, editor of The State, on the anomymous tip he received about this story.

*Update/correction: I revised this post to better reflect the effect of the Supreme Court's rule change. The "prohibited contacts" language existed in the old rule; the main effect of the new rule was to eliminate the formal procedure for requesting review of ones' exam and re-grading.


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