California High Court Probes Leak of Bar Exam Essay Topics

SAN FRANCISCO (CN) – The California Supreme Court has hired retired Justice Arthur Scotland and his law firm Nielsen Merksamer to probe the State Bar of California’s leak of exam essay topics.

The high court vowed a “thorough and independent investigation” into the leak after the topics were inadvertently disclosed in an email to a group of 16 law school deans just five days before the exam scheduled for July 30-31. Many of those deans are from correspondence or online-based law schools with low bar exam pass rates.

“This was in a routine invitation to observe a grading session – the invitation typically goes out after the completion of the exam,” said Donna Hershkowitz, the bar’s chief of programs.

While the State Bar had no evidence the deans shared the topics with students, Hershkowitz said “out of an abundance of caution and fairness” the bar released the topics to everyone scheduled to take the exam “in an attempt to level the playing field.”

The leak comes at a time of polarizing debate about the difficulty of the California exam, currently one of the toughest in the country with an abysmal pass rate of 31.4%. California’s minimum passing score is 144, while the national average is 135.

The State Bar commissioned several studies to determine whether a lower cut score is warranted, though the studies did not find any changes needed to be made. A new job analysis study is expected to be released in December, which State Bar executive director Leah Wilson said will “collect information about the knowledge and skills that entry level attorneys need” to “ensure that the bar exam is relevant and actually testing what’s needed.”

The Supreme Court also waded into the fray, announcing on July 29 that it would exercise its oversight powers over the bar to examine the leak and “address any consequences.”

Their chief investigator, Justice Arthur Scotland, has a long history with the California Judicial Council, chaired by Supreme Court Chief Justice Tani Cantil-Sakauye.

In 2011, Cantil-Sakauye picked Scotland to head a committee to review the council’s administrative staff, amid an outcry from state trial judges over the bureaucracy’s outsized budget and authority over the courts.

California Supreme Court headquarters in San Francisco. (Photo credit: Coolcaesar/Wikipedia)

Scotland resigned from the committee in 2012 after he chose to represent California’s two most powerful Democratic legislators at the time, Assembly Speaker John Perez and Senate President Pro Tem Darrell Steinberg, in their lawsuit successfully challenging former Controller John Chiang’s power to withhold legislators’ pay for failing to come up with a balanced budget.

The State Bar will pay $60,000 for the probe, according to a copy of the contract provided by the Supreme Court. A spokesperson for the court said in an email that the agreement expires on Dec. 31, “but it is anticipated that it will be completed by early November at the latest.”

The court spokesperson added: “For contract deliberations, a shortlist of uniquely qualified firms was created from which Nielsen Merksamer was chosen.”

Scotland was appointed to the Sacramento County Superior Court by former Gov. George Deukmejian in 1987. After two years, he was appointed to the Court of Appeal, and became presiding justice in 1998. He retired in 2010.

His firm Nielsen Merksamer specializes in politics, lobbying, property rights, and campaign finance law. According to its website, it has experience representing local school districts, nonprofits, counties and state agencies. It has offices in Sacramento and San Rafael.

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