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Friday, April 20, 2007
Bar exam questions on blog prompt subpoena

THE NATIONAL Conference of Bar Examiners is hunting for the anonymous person who published 41 questions from the 2006 Multistate Bar Examination on an Internet blog within hours of taking the exam last year.

The conference—which develops and distributes the national portion of the biannual bar exam, called the MBE—asserts in federal court documents that whoever posted the questions on tabandbrandy.blogspot.com infringed the MBE copyright and disregarded instructions that prohibit exam-takers from disclosing exam questions and answers.

This week, lawyers from the Washington office of Fulbright & Jaworski obtained a subpoena in U.S. District Court in Atlanta commanding Atlanta-based EarthLink Inc. to surrender the identity of the person who posted the questions—and, in some cases, his answers—on the blog.

In a letter to EarthLink’s legal department that was attached to the subpoena, Fulbright & Jaworski senior associate Caroline M. Mew stated that the firm has already successfully subpoenaed Google, from which it obtained the Internet protocol address of the blogger, and has identified the blogger’s server as EarthLink.

The EarthLink subpoena marks the first time that the National Conference, or NCBE, has attempted to track down an anonymous Internet poster and, possibly, seek civil damages for publishing exam questions online, NCBE President Erica Moeser said Wednesday.

The NCBE staff routinely monitors Web sites and blogs before and after the exam and occasionally has found “smatterings of [exam] questions,” she said. “What prompted us to action in this particular case was the sheer volume and audacity of the posting.”

Moeser said the NCBE has not decided what action it will take if its attorneys succeed in tracking down the poster. But, she added, “I wouldn’t rule out anything at this point.”

The NCBE is “truly pioneering in a new age … when the Internet is a factor, in contrast to 20 years ago, when this type of infringement was not imaginable,” Moeser added.

The law governing a growing number of personal Web sites and blogs that serve as diaries or extended conversations is still “an evolving area,” she acknowledged, but “one we feel compelled to explore.”

“We don’t have all the answers,” she added. “At this stage of the game, we have some important questions and a commitment to take action … when confronted with a posting of a percentage of items that is far from trivial and appears to be quite willful.”

Moeser said that EarthLink lawyers responded Wednesday to the subpoena request but did not provide the identity or e-mail of the individual who posted the bar questions on July 26, 2006.

“At this stage, it’s not clear they have retained records back to when the posting occurred,” she said.

On Wednesday, EarthLink Corporate Communications Director Jerry Grasso said EarthLink “at this time is not making any public comment” on the matter.

The MBE is a 200-question test administered twice a year as part of the bar examinations in 48 of the 50 states, the District of Columbia and most U.S. territories on the last Wednesday in February and on the last Wednesday in July. Moeser said. It is a major portion of state bar examinations—including Georgia’s—and is required for a law license.

The exam cover page describes the MBE as a “secure examination” protected by U.S. copyright laws and warns that unauthorized disclosure of the contents could result in civil liability, criminal penalties, cancellation of the violator’s test scores, denial of a bar application on character and fitness grounds or disciplinary action if the violator has already been admitted to the practice of law. Exam-takers agree that, in breaking the seal of the test booklet, they will not disclose “in whole or in part” any questions or answers to anyone during or after the examination.

Those warnings were not enough last July to discourage a poster listed only as “Anonymous” who went to the “Tab and Brandy” blog. The blogger who created it, “Tab Connoisseur,” describes herself as a female Texas lawyer who is an ardent fan of the diet soft drink Tab.

“I coulda been a contender,” Tab Connoisseur writes in an introduction about herself, “but instead I became a lawyer.”

The bar questions were posted on a string titled, “Day Two: It Blew” about Tab Connoisseur’s experience taking the MBE, according to a copy of those postings that NCBE lawyers attached to the EarthLink subpoena. Those postings were removed by the blogger sometime last summer after the NCBE contacted the Texas Board of Law Examiners, which administered the exam in Texas, Moeser said.

“Tab Connoisseur” did not respond to an e-mail sent Wednesday from the Daily Report inquiring about the posting and removal of the bar exam questions. By Thursday, the blog had been taken down.

The NCBE investigation was prompted by a rambling multiparty Internet conversation about the difficulty of the MBE on the blog that started when an anonymous poster wrote in response to a blog entry that the MBE “kicked my a$$.

“I did laugh, though, because there was an evidence 403 question on there and I could not for the life of me remember if the standard was ‘outweighed’ or ‘substantially outweighed’—luckily, the bar examiners supplied that answer in another answer choice about 50 questions later,” the anonymous poster wrote.

That prompted another poster, “youmockamee,” to note that question No. 192 in the afternoon session “was all about whether some congressional act giving some agency secretary something or another was a valid act … and all the answer choices were about a page long …”

The posting of most concern to the National Conference of Bar Examiners was from a poster, also “Anonymous,” who had taken the MBE in Wisconsin and listed what appeared to be a virtually verbatim list of 15 questions. Among them: “A person throws a brick through a car windshield and four different circumstances attempt to nullify the voluntary act itself. One was a person who was sleepwalking and did this, one was on some medication while doing it, another was retaliating in some manner which was not the right answer, the final circumstance escapes me but I picked the sleepwalker as negating the voluntary act.”

The list of exam questions prompted Tab Connoisseur to ask, “Er ... Anon. … how the heck did you remember all that???? (Psst… are you a rep for PMBR [Preliminary Multistate Bar Review—a preparatory course for the MBE]? Did you sneak those out?) And yes, those are the questions I had in the morning.”

Several posts later, “Anonymous” wrote, “Here are all 41 questions on the MBE that I could remember. I am not a rep, I simply spoke at my wife for three hours driving to the airport after the Bar, and she took notes while I gabbed. So, here are the questions and my proposed answers. Anybody remember more than these? Or can elaborate?”

The NCBE’s Moeser on Wednesday said of that 41-question posting: “There is no doubt there is an infringement here.” NCBE staff compared the questions posted on the “Tab and Brandy blog” to the actual questions administered last July and found “sufficient similarity” among them to pursue the poster’s identity.

Moeser said the posting of the 2006 exam questions had no effect on the July 2006 test because they were posted after the fact. But she explained that each year the NCBE recycles a certain number of questions that have appeared on previous tests. And, she added, it is not uncommon for the same question to appear on three or four different multistate exams over a six-to-eight-year period.

Those recycled questions—for which the NCBE has performance statistics—serve as indicators for how a bar examination compares with its predecessors in terms of difficulty, she said.

“It’s a way to adjust the newest tests for difficulty,” she said. “The score on one test is equated to scores on all previous tests. It makes it fairer for candidates.”

In order to continue that practice, Moeser said the organization has to prevent the publication or circulation of questions that might otherwise reappear on some future exam and give new test-takers a decided advantage over their predecessors.

“No matter how benign someone wants to characterize the posting of those questions on a blog, the impact is far from benign,” she said. The 41 questions that appeared on the “Tab and Brandy” blog, she said, have been retired.

Moeser acknowledged the NCBE cannot realistically stop people who have taken the MBE from talking about it. But, she said, “chatting with one’s neighbors about questions … is a lot different than exposing questions on a medium as broadly available as the Internet.

“In this particular instance, someone went to a great deal of effort to disclose a great many questions. Our choices are to stand and do nothing, or to make an effort to do something.”

The case is Fulbright & Jaworski v. EarthLink Legal Dept. No. 1:07-MI-0097 (N.D.).