Brian Heckmann, a recent graduate of Florida International University College of Law, discusses the Florida Board of Bar Examiners' approach to legal competence and exam administration throughout the COVID-19 pandemic has led to the need for diploma privilege for 2020 Florida Bar Applicants...
The Florida Board of Bar Examiners (FBBE) is out of time. Applicants are out of energy. And everybody is out of patience. To be sure, the COVID-19 pandemic has severely impacted all aspects of life for people around the globe, including the legal communities within the United States. However, what is unique to the legal community is an uncompromising stubbornness to adequately and timely adapt to the challenges of this pandemic. Their reasons for doing so, as will be discussed, are inexcusable.
On March 24th I started a change.org petition that has garnered 3,500 signatures asking the Supreme Court of Florida and the FBBE to consider diploma privileges. I started it for both personal and general reasons. Personally, I suffer from Addison’s disease and a treatment that leaves me severely immunocompromised. I am in the most at-risk category for serious illness or death if I contract COVID-19. In general, I (and every reasonable person in the United States) knew as early as late March that a mass gathering of nearly 3,000 people would be unreasonably dangerous, both to the people gathered and to society.
In short, it was readily apparent that a traditional bar exam would be irresponsible and unfeasible as early as March. However, the FBBE did not deign to accept this objective reality until July 3rd, three months too late. Those three months could have been the critical time the FBBE and its software vendor, ILG, needed to construct a reliable and working platform for a remote bar exam administration. However, they didn’t act. They unwisely took incremental half measures as the situation in Florida deteriorated and the number of COVID cases skyrocketed. Their first attempt was to separate the applicants into two different cities, however, this failed because those cities soon became the most contagious COVID hot spots in the world. Despite this, the FBBE still refused to change course until widespread public outrage—and public condemnation by elected officials from Florida—publicly shamed them for this ill-considered plan and their refusal to guarantee accommodations for at-risk applicants.
Next, the FBBE made the decision to go remote. The software that they chose was, to be blunt, a catastrophic failure. Even before its complete failure in and abandonment by Indiana—a jurisdiction with on average approximately one-sixth of the number of applicants as Florida—there were widespread reports, with pictures and videos of the software breaking or breaking the computer that was running it. Problems ranged from overheating, to the facial recognition software laughably approving literally (and I do mean literally) anything, to failure to lock down the computer so that some persons could access other functions and not be detected. I myself experienced three events, with each iteration of the software the FBBE asked applicants to download, where after exiting the program my computer remained locked down. It was only through multiple repeated hard shutdowns (and some prayer) that I could access my computer and this jerry-rigged malware did not turn it into a $500 aluminum brick.
Perhaps most frustrating of all, applicants foresaw every single problem that ILG was having. Shortly after making my petition (and after it garnered 2,000 signatures in less than a week), I had a phone call with the dean of my law school who spoke to me about the original letter the Deans of the Florida law schools sent to the Florida Supreme Court about this entire situation. He asked me my thoughts on what several states were doing in making the bar exam remote. My exact response was something along the lines of, “That would work perfectly so long as the software the FBBE chooses is capable of processing the several thousand simultaneous users that are taking the test. If there are any non-minor technical issues, then that solution isn’t viable.” I’m not a computer expert, nor can I see the future. I simply have the common sense to recognize what, realistically, was needed. Unfortunately, the FBBE seems to be devoid of the same common sense.
With all of these problems, why does the FBBE continue to insist on using this broken software? Why not simply recognize the extraordinary circumstances of this year and opt to choose the cleanest solution, a solution that I and thousands of other persons endorsed back in March. As for the software, there is some speculation—and admittedly only speculation—that it is because the Executive Vice President of ILG is a former employee of the Board. As for the refusal to even consider the diploma privilege option, the FBBE has always maintained that they believe the bar exam is a critical mechanism to ensure competency to practice law. This reason, to be as frank as can be, is fraudulent nonsense and insulting.
Continuing the bar exam in its current form does not ensure minimal competency or serve the interests of clients or the people of Florida, it serves only the interests of the FBBE. The methodology used is largely unchanged since 1950, however in the last 10 years or so the number of topics that could be tested has exploded to unreasonable levels. The bar exam now includes specialist areas of law that are completely irrelevant to competent legal practice outside of those areas, such as Secured Transactions or Business Entities. Yet the FBBE insists on having it because it protects two interests of theirs. First, by making the test unreasonably difficult and expansive, the FBBE limits the supply of new lawyers into the profession and thus can maintain high fees for the services of existing lawyers when there is a demand for legal representation. Secondly, if there is a group admitted without the exam and they are entirely competent to practice, it would rightfully call into question the very need and legitimacy of the FBBE’s existence. In short, the FBBE doesn’t fear incompetent lawyers, they fear a generation of competent lawyers that will prove the FBBE is obsolete and will lead to the dissolution of the board.
The dirty secret of the bar exam is that it does nothing to ensure competence, in fact, it logically cannot. Any educator will tell you that to have an effective and objective measurement of competence, you have to have a standardized test. Between different groups taking the test, they have to be tested on the same subjects, if not the same questions. The FBBE, however, randomly chooses which areas of the law to test with each administration. Functionally, this means that for takers of, e.g., the July 2018 administration of the Bar Exam “minimal competence to practice law” consisted of knowing (in-depth): 1) Contracts and Ethics; 2) Family Law; and 3) Federal constitutional law. For the takers of the very next test in February 2019, “minimal competence” required in-depth knowledge of 1) Trusts; 2) Negotiable Instruments and Secured Transactions; and 3) Torts. How can the bar exam provide any semblance of objective measurement for “minimum competence” if the goalposts keep moving and what counts as minimum competence changes completely upon the arbitrary will of the FBBE? The only consistent (and thus valuable) part of the exam, the Multistate Bar Exam, was eliminated from this summer’s test by the FBBE in favor of its useless counterpart.
There are viable alternatives to this methodology besides diploma privileges, and in light of the FBBE’s inadequate and delayed response as well as the chaos of this year that followed, the Court should seriously consider exploring alternative methods of administration after the COIVD-19 pandemic is controlled. For example, I would advocate that admission to practice law requires three things: 1) Obtaining a JD from an accredited law school; 2) At some point (including during law school) passing what is now part B (the MBE); and 3) a part A that is more reminiscent of actual legal work, where an assignment to draft a motion or bench brief is issued by the FBBE with a week to research and write it.
However, because the FBBE has so conspicuously failed to act in a reasonably prompt manner—again not meaningfully considering or implementing remote alternatives until July 3rd— no options besides diploma privileges at this point are adequate to serve the interests of applicants. There simply is no time to implement other options. We cannot continue to put our careers and our lives on hold just so the FBBE can prop up a 70-year-old failing method that should have died long ago. We cannot, and we will not accept the destruction of our professional future simply so that bureaucratic institutions such as the FBBE can continue to justify the regulatory status quo.
On behalf of all the applicants, I ask that the Florida Supreme Court recognize the Board’s failures, mitigate the damage caused by extending diploma privileges to this year’s applicants, and to investigate alternative means of testing competency in the future that are more flexible in their application so that an unforeseen circumstance during a random summer will not cripple the professional opportunities of another class of law school graduates.
JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.
Brian Heckmann is a graduate of FIU College of Law, with honors, and was selected for the Department of Justice Honors Program. He has written on substantive First Amendment law and is published in volume 14, issue 2 of FIU Law Review.
Suggested citation: Brian Heckmann, The Abject Failure of the Florida Board of Bar Examiners, JURIST – Student Commentary, August 10, 2020, https://www.jurist.org/commentary/2020/08/brian-heckmann-florida-bar-exam-failure/.
This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at firstname.lastname@example.org
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