Fla. Postpones Bar Exam After Software Bugs Spread Chaos

By Carolina Bolado
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Law360 (August 17, 2020, 10:10 AM EDT) -- The Florida Board of Bar Examiners said late Sunday that the bar exam scheduled for Wednesday would be canceled after repeated problems with the testing software, sending law school graduates scrambling to figure out whether promised job offers will be withdrawn and how they will pay for expenses until a new exam date in October.

Applicants received an email from the board at 10:52 p.m. on Sunday, just hours before a scheduled trial run of the remote test on Monday, telling them that the Aug. 19 bar exam would be canceled. In its message, the FBBE said the board "remains committed to offering an examination to applicants in 2020" and will reschedule the exam for a date in October. Applicants will be able to take that exam or postpone until the February test.

The in-person exam that had been scheduled for July 28 and 29 was scrubbed on July 1 as Florida grappled with a dramatic upswing of COVID-19 cases.

The postponement of the remote exam is the outcome many applicants feared the most because it forces them to continue studying for several more months without an income and puts any jobs they had lined up in jeopardy.

"It's like they hit the perfect jackpot of what could hurt students the most," said Johnny Carver, a graduate of the University of Miami School of Law.

For Joanna Hotalen, a graduate of Barry University's Dwayne O. Andreas School of Law, the decision means she has to give up her apartment in Orlando and move back in with her parents in Tarpon Springs.

"I'm calling my credit card companies to try to work out something, and I've reached out to family for help with money," she said. "I've only budgeted until the end of September. That's as far as my bar loans get me."

In addition to the immediate financial strain, the job offer she had with a personal injury firm in South Florida has been rescinded for the time being.

In its statement about the postponement, the FBBE said it would develop a program that would allow applicants to work under the supervision of a member of the Florida Bar. The program will begin no later than mid-September, which was the earliest date the exam grades would have been released for the summer bar exam, according to the FBBE.

But Sean Silverman, a bar exam tutor in South Florida, said the program does not make much sense because studying for the bar is a full-time job on its own.

"The bar exam is not the kind of thing you can study for, go away from, and then come take the test," Silverman said. "These students are going to have to study for the October test. How are they going to practice for a supervising attorney and study for the test at the same time?"

What he's seen most from his students so far is anger, in addition to fear about the precarious economic position this puts them in.

"There are solutions to this, and Florida is just not giving this thought," Silverman said. "Maybe they just don't realize that we're talking about some dire situations for some law graduates."

Applicants have pushed for alternative ways to show that they can competently practice law, whether through additional continuing legal education courses designed for this purpose or extended periods of supervised practice.

They also pointed to other states like Indiana that have set up open-book exams in which applicants email their essay responses. Such an exam would be sufficient to determine candidates' legal analysis abilities, Silverman said.

"The test is timed as well," he said. "You're not going to sit there learning the law at the same time you're taking the test. You're going to already know the law but maybe forget one element, so you use your notes."

But part of the issue is that Florida's exam also includes a 100-question multiple choice section that would have to be hand graded if done over email, and the FBBE has been reluctant to dispense with the section.

The executive director of the FBBE and the CEO of ILG Technologies Inc., which makes the software that was to be used for the Florida Bar exam, did not respond to requests for comment on Monday.

In the run-up to the exam, test-takers reported hardware issues on their computers as well as compromised bank accounts and email passwords that were changed without their permission. The FBBE canceled a planned test run set for Aug. 10 and told applicants that ILG had hired a cybersecurity firm to look into the testing software.

In an email sent to applicants on Saturday, the FBBE said the updated software contained no malware but did not elaborate further. After users continued to report problems, the FBBE issued its statement Sunday night, canceling the trial run set for Monday as well as the test on Wednesday.

Carver said the uncertainty surrounding the exam has hit many applicants particularly hard, as they have complained of panic attacks, migraines and suicidal thoughts.

For Hotalen, the lack of communication and last-minute decision-making from the FBBE has been particularly frustrating. She said the board's obstinacy has put law graduates in difficult positions and in some cases, precarious financial situations.

"I just wish that they had considered other options and the financial position they've put us in," Hotalen said. "I think they're thinking more about tradition than about humanity."

--Editing by Jill Coffey.

Update: This story has been updated with additional detail. 

For a reprint of this article, please contact reprints@law360.com.

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