(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.
Holton, who was at dinner with a friend, joined the email conversation at 6:27 p.m., only to suggest that Hershkowitz “try to get our psychometrician’s opinion for cover,” referring to the bar’s testing expert.
The trustees and Hershkowitz also discussed whether to alert Gupta, generally agreeing to inform him but also proceed with the plan to email all bar applicants. “FYI for Neil so he and the justices don’t hear this from the press first. No need to delay issuing the memo in my view,” SeLegue wrote. Gupta was alerted about 30 minutes later.
The Nielsen Merksamer report says that while the bar decided to notify Gupta on Saturday about the leak after it decided to disclose the exam topics to all participants, it was “unresponsive to his questions in the hours just before the email was sent to all exam participants; and some members of the state bar’s leadership became resentful that the principal attorney expressed frustration with their lack of communication.”
Gupta said the error left him “speechless,” and he began bombarding Hershkowitz with questions Saturday evening around 6:39 p.m.
He said he was “troubled that the bar’s response is going to generate more criticism and investigation than other possible responses. A mistaken email to 16 persons is much different than a mea culpa to hundreds of bar applicants. One is a quiet mistake, the other is a loud one.”
Gupta also asked to see the email sent to the deans and wanted to know their names, and said he was concerned that the draft email the state bar planned to send to exam participants somehow impugned the deans’ integrity.
“You have to consider that your decision to respond as the bar has elected to has illustrated a distrust of these 16 individuals, whether merited or not,” he wrote.
Hershkowitz replied at 7:29 p.m., saying, “As to the deans, I think we need to look at it as reducing the appearance of an unfair tilting of the scales in favor of some applicants, and not an opinion about the deans.”
According to the report, Hershkowitz did not write to Gupta again until 11:09 p.m., where she explained the bar had known about the inadvertent disclosure for only a few hours; provided a list of the law schools whose deans received the inadvertent disclosure; and included the memo sent to the deans.”
On Sunday, July 28, all 9,800 exam participants were sent an email disclosing the exam topics.
In his interview, the report says, Lee said he wanted keep the Supreme Court informed about what was happening but did not see Gupta’s emails until the following morning because he had gone out to dinner and left his phone behind.
Steinbrecher said he agreed with the decision not to consult with the Supreme Court, believing he thought the bar was expected “to take care of this problem in real time and keep them informed.” He also thought the bar could not wait another day to hear from the court.
SeLegue likewise thought the bar had a “timing problem” and “every hour counted.”
Hershkowitz told investigators that Gupta was informed within an hour of her email conversation with the trustees and that Gupta could have told the bar to wait for the court’s input but didn’t. She said “it wasn’t like there was a sort of debate about” consulting with the court.
The investigators at Nielsen Merksamer said the agency should have a plan in place for dealing with these types of emergencies and must be able to reach “key decisionmakers” in a crisis. They also found a shortage of bar exam proctors put too much pressure on state bar office staff, “leading to the shortcut in procedures that produced the inadvertent disclosure.”
The report also praises the state bar’s “sensible solutions aimed at preventing the same error from happening again,” specifically its decision to train its staff ahead of the February 2020 exam and keep the topics “under lock and key” in the future. The bar will refrain from sending any memos about the grading session until after the exam takes place.
In a prepared statement, Steinbrecher stood by the state bar’s response to the leak and invited the court to weigh in on preventing the mistake from recurring.
“The early release of topics on the July 2019 California Bar Exam was an unprecedented situation, and the decisions that were made to level the playing field for all exam takers erred on the side of fairness and transparency,” he said. “The Nielsen Merksamer report summarizes several concrete measures that the state bar is already taking to prevent such occurrences in the future, and I am confident in staff’s efforts to implement the necessary changes. The report highlights the vital importance of the Supreme court’s oversight and engagement; we welcome guidance from the court on how best to move forward with the report’s broader recommendations.”
Scotland also recommends that the state bar and Supreme Court work on their relationship, writing, “The interpersonal relationships that connect the leadership of the state bar to the Supreme Court should be strengthened; and the state bar must adapt better to the court’s enhanced oversight and input.”