By Nathan Hale

Law360 (August 14, 2020, 8:52 PM EDT) -- The Florida Supreme Court and Florida Board of Bar Examiners are facing growing pressure to offer alternatives to an online bar exam planned for Wednesday amid reports the test is plagued with buggy software.

In a joint letter sent Friday, state Reps. Carlos G. Smith and Anna V. Eskamani, both Democrats from Orlando, urged the high court and bar examiners to follow other states' examples by either authorizing some form of emergency licensing for law school graduates registered to take the Aug. 19 exam or switching to an open-book exam that could be administered over email.

In a separate letter, the deans of 10 Florida law schools pressed the high court and the board to prepare a contingency plan in case problems arise during a live trial of the software, which is set for Monday. They suggested an open-book exam without live remote proctoring, with essay answers submitted by email and possibly without a planned multiple-choice section.

The two letters came after registered test-takers presented the Florida Supreme Court earlier in the week with accounts of data security breaches, overheated computers and malfunctioning facial recognition features in the remote bar exam software made by ILG Technologies Inc.

In a post on Twitter that included the lawmakers' letter, Smith said he had heard from "countless" law school grads planning to take the test who are frustrated that software has been "overrun" with technical and security issues and that these issues have been ignored by the bar examiners board.

"The August 2020 examinees have faced more obstacles than any other group of examinees. They are a resilient group who have now been studying for three months while living in one of the worst pandemics the world has seen and entering a job market that may be worse than the Great Depression," Smith and Eskamani said in their letter. "In extreme times, extraordinary measures are warranted. That's why our offices wholly support emergency licensure, and why we believe it is the right thing to do."

The FBBE last month canceled the in-person bar exam as Florida grappled with a dramatic upswing of COVID-19 cases. It postponed a live trial exam that was scheduled for Aug. 10, saying it was working with ILG on the issues that test-takers have identified with the software, and rescheduled it for Monday, just two days before the actual test date.

While praising the FBBE and the Supreme Court for moving to an online bar exam, the lawmakers said in their letter that they have been hearing rising concerns in the past two weeks from test-takers and that other jurisdictions had experienced issues with the same software.

"We share in those concerns and want to support our legal community in getting more lawyers into practice safely while still maintaining the integrity of the field," Eskamani told Law360 on Friday.

According to the legislators' letter, the Indiana Supreme Court decided to abandon use of the ILG software because of log-in issues and instead offered applicants an email-based, open-book exam.

Nevada, which was also planning to use ILG software for its online exam, pushed back the test date because of technical issues and ended up administering the exam Aug. 11-12, using a stripped-down version of the ILG software that lacked many features Florida intends to use, the letter said.

Louisiana granted emergency licenses, also known as diploma privilege, to graduates of Louisiana law schools and planned to offer an online bar exam via ILG software for other applicants. But the Louisiana Supreme Court scrapped the ILG software and shifted to an email-based, open book exam, saying it was not feasible to use the software due to technical issues.

Several other states, including Utah, Washington and Oregon, also have granted diploma privilege during the pandemic, Smith and Eskamani said. They proposed that an emergency licensure in Florida could be coupled with additional provisions requiring completion of 40 hours of continuing legal education credits during a three-month supervision by a practicing attorney before applicants would be sworn in.

"This one-time emergency licensing would allow examinees to enter the job market, gain health insurance, and be able to move on with their lives during these trying times of COVID-19," the representatives said.

The representatives suggested an email-based, open-book exam as an alternative if emergency licensing "feels too drastic."

The law school deans did not raise the idea of emergency licensing but stressed the need for quick action.

"As legal educators, cognizant of the nature of legal practice, we feel that these measures do not undermine the fundamental purpose of the exam and will continue to comprise a 'rigorous process ... to ensure the competency of new attorneys,'" they said of their proposal for an open-book exam.

The deans are from Ave Maria School of Law, Barry University's Dwayne O. Andreas School of Law, Florida A&M University College of Law, Florida Coastal School of Law, Florida State University College of Law, Nova Southeastern University's Shepard Broad Law Center, St. Thomas University School of Law, Stetson University College of Law, University of Miami School of Law and the Tampa Bay campus of Western Michigan University's Thomas M. Cooley Law School.

Jessica Gaudette-Reed, a 2020 graduate of the University of Florida's Levin College of Law, who sent a letter on Aug. 10 to the Florida Supreme Court outlining issues with the ILG software experienced by a group of prospective test-takers, told Law360 that Smith and Eskamani's letter was a welcome surprise.

"Their leadership is reassuring to graduates across Florida who do not know when they will be able to begin their careers," Gaudette-Reed said. "The letter captures the anxieties graduates face as they prepare for this exam. There is very low morale and a high amount of distrust in the software that we all hoped would address some of the obstacles posed by administering an exam during the pandemic."

She said law graduates have reached out about bank account information being stolen and mysterious login attempts into their emails and social media accounts. She noted such vulnerabilities are troubling for examinees who have access to client files on their computers and also to survivors of sexual assault who have worked diligently to maintain their privacy but under the current plan "will be subject to having a stranger watch them for hours over a questionably secure connection."

"The representatives' letter speaks to these concerns and offers viable solutions moving forward. I am thankful for the leadership that they are providing during this moment of uncertainty," Gaudette-Reed added.

A representative for the Florida Supreme Court said Friday that the FBBE, an arm of the court responsible for administering the bar admissions process and the bar exam, is reviewing the issues and that the board will advise the court.

The FBBE did not respond to a request for comment Friday.

--Additional reporting by Carolina Bolado. Editing by Jill Coffey.

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