(CN) – An investigation that found human error caused the leak of California State Bar exam topics this past July also revealed the agency was ill-equipped to handle the fallout.
The 19-page report commissioned by the California Supreme Court and prepared by the law firm Nielsen Merksamer Parrinello Gross & Leoni found bar leadership did not seek the court’s input as it frantically tried to get ahead of the embarrassing blunder.
The investigation, for which the state bar paid $60,000, was led by former state appellate justice Arthur Scotland, now an attorney at Nielsen Merksamer.
While bar exam topics are tightly controlled, the investigation showed the agency’s shorthandedness may have led to the inadvertent leak, when a state bar staffer mistakenly sent an email to 16 law school deans that included a list of the essay topics. The email was supposed to be an invitation to observe an exam grading session that usually happens two to three weeks after the exam, but the staffer, whose name is redacted in the report, was eager to “get a head start on certain post-exam work before the exam” and sent the topics rather than the invitation.
The leak was first reported two days later, on Saturday, July 27, by Jay Frykberg, dean of the University of West Los Angeles School of Law.
The report also reveals that flustered higher-ups within the agency chose not to consult the Supreme Court’s advice on what to do. While it did inform the court about the leak, the agency did not timely respond to frantic questions from Sunil "Neil" Gupta, the chief justice’s lead attorney and official intermediary for the bar and the court.
While the bar often acts autonomously, it still must answer to the court. The Nielsen report notes the court has recently become more “active and engaged in overseeing the state bar than it has in the past,” and said it is “readily apparent that some at the state bar have not adapted well to this enhanced oversight.”
Scotland said state bar general counsel Vanessa Holton “was at times recalcitrant during her interview,” and that Holton had remarked that the bar’s relationship with the court had "feels more adversarial” than it has been in the past.
The bar’s ultimate response was to send the essay topics to all exam applicants in the interest of fairness, an option advocated by Donna Hershkowitz, the bar’s chief of programs, who was on vacation at the time but was tasked with handling the affair.
Executive director Leah Wilson, whose son was taking the test, had recused herself from any involvement with the 2019 bar exam along with her friend Amy Nunez, the bar’s head of admissions.
Hershkowitz emailed Holton and board trustees Alan Steinbrecher and Sean SeLegue. She also separately emailed board chairman Jason Lee, who concluded that letting all test-takers know the essay topics “seems the only real option.” He also her to email a reporter for the legal publication The Recorder as part of its communications strategy.