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November 24, 2007

Expert Says Bar Examinees
Were Given the Benefit of the Doubt

By MEG KINNARD

Associated Press Writer

COLUMBIA, S.C. --When a scoring error was detected on the 2003 Multistate Bar Exam, test graders around the country were in a quandary: Should applicants who may have failed the exam be allowed to be sworn in as new attorneys, or should congratulatory letters already issued to some test takers be retracted?

In the end, only a handful of would-be lawyers had their hopes dashed.

When a similar situation occurred in South Carolina this year, rather than reversing a single applicant's pass to a fail, 20 people who otherwise wouldn't have become attorneys were told they now can practice law.

That's what appears to be the final word from the South Carolina Supreme Court on the case of the state's questioned tests, one that brought into public view what is usually an intensely private waiting game for new lawyers.

Along the way, the story that unfolded over several recent weeks raised questions about the influence of high-ranking officials on the outcome of the bar exam because the daughters of two officials who contacted the court saw their grades change.

Initially, with the Supreme Court and other officials close to the bar exam declining to comment, it appeared that several test takers upset by their failing grades on one section of the exam had banded together and lobbied hard enough to pass.

The family of Catherine Harrison, daughter of House Judiciary Chairman Jim Harrison, and Kendall Burch, daughter of Circuit Court Judge Paul Burch, each said their grades changed. Both fathers acknowledged contacting court officials but said it was to raise questions about a specific question on the test - not to lobby on their daughters' behalf.

Members of the state's legal community began to grumble, turning to Internet discussion groups to voice frustration as court officials remained silent. Had a lawmaker called in a political favor? Were justices, who oversee the people who grade the tests, playing a dangerous game with the state's legal reputation?

"The idea that a state Supreme Court would step in and interfere with scoring and grading strikes me as highly unusual," echoed Michael Frisch, ethics counsel and adjunct professor at Georgetown University Law Center. "On the human level, I guess I can understand the father wanting his daughter to pass the bar ... but the court responding to it strikes me as very problematic. At the heart of the bar admissions process is meritocracy, and the idea that it's a blind-graded exam."

After two weeks, South Carolina's justices broke their silence and said the grade changes had nothing to do with complaints from the examinees. The court in a statement that the grader of the wills, trusts and estates section of the exam had discovered he passed an applicant who actually should have failed that portion - and thus would have failed the entire test.

But the names of the people thought to have passed this year's July exam had already been publicly released, including that of the one applicant whose test was improperly scored. Instead of acting as other states' examiners did four years ago, retracting the applicant's congratulatory letter, the justices chose to reverse the 20 other scores en masse.

In its statement, the court also addressed the allegations of favoritism.

"No consideration was given to the identity of any examinee who would stand to benefit from this action," the justices said. "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."

The 2003 Multistate Bar Exam typo created the same problems. Nearly 7,700 of the more than 20,000 people taking the multiple choice test nationwide either got credit for the wrong answer or got no credit for the right answer on a single question, an error revealed just as states were announcing results of that exam.

National Conference of Bar Examiners Director Erica Moeser said it meant that some applicants who already had been told they'd passed may actually have failed by a narrow margin.

"Every jurisdiction struggled with it in good faith and tried to do what they thought was fairest, not only to the candidate but to the consumer of legal services," says Moeser, whose Wisconsin-based organization collected reports on how different states had handled the fiasco. "We weren't going to hide the error, and we knew that there were states that had already ... released their results, that had passed people and failed people."

In the end, Moeser said, less than a dozen of the thousands of bar applicants who had already been informed they had passed the test saw their results changed to fail, decisions made by bar examiner boards and courts at the state level.

The South Carolina Board of Law Examiners and state Supreme Court may have chosen to follow the same "pro-applicant" logic during the recent dustup, Moeser said.

"If you're confronted with an error that you knew was going to have a real impact on real lives ... would you want somebody to stonewall on an error and not back away?" she said. "You want someone to have the courage to say, 'We screwed up, we can't undo the error, but we want to move forward.'"

On Tuesday, the South Carolina Bar Association issued its own statement on the situation, thanking the justices for their explanation and effectively signing off on the debate.

"In making the additional statement, the Court has put to rest any speculation concerning the facts," the group said. "The Bar is confident that the Court has and will continue to maintain the integrity of the bar admissions process."