By Nathan Hale

Law360 (August 19, 2020, 10:22 PM EDT) -- On the day Florida had been scheduled to hold its bar exam online due to the coronavirus pandemic, before software bugs upended those plans, Florida's chief justice issued a video message Wednesday apologizing to bar applicants and acknowledging the failure of officials responsible for the test.

The Florida Board of Bar Examiners, an arm of the high court responsible for administering the exam, announced 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with the testing software, sending law school graduates scrambling to figure out whether promised job offers will be withdrawn and how they will pay for expenses until a new exam date in October.

In his four-minute video, Chief Justice Charles Canady said that he cannot guarantee that future efforts will be flawless but assured applicants that the court and the FBBE has learned from recent events and will put alternative plans in place so that "one way or another, there will be an October administration of the bar exam."

"We acknowledge and accept the criticism that has been directed at the court and the Board of Bar Examiners," Justice Canady said. "Our inability to offer the bar examination in August was a failure. We apologize for that failure."

The chief justice said that since the onset of the pandemic — which had already forced a shift of the July 28-29 in-person exam to an online version of the test — the goal has been to administer an exam as expeditiously as possible while ensuring it is a valid and secure examination and is offered in a safe manner for examinees.

"We take seriously our obligation under the Florida Constitution to protect the public in the decisions we make regarding admission to the practice of law. But we also take seriously our obligation to applicants for admission to the bar," he said.

Justice Canady also sought to acknowledge the significant financial and emotional impact that uncertainty and delays surrounding the test has had on the examinees, one of whom recently told Law360 that he had heard from fellow applicants who complained of panic attacks, migraines and suicidal thoughts.

"We understand that the bar exam is one of the most important events in the lives of the examinees — the culmination of years of hard work and for many a rite of passage to a lifetime career in the law," Justice Canady said. "We recognize that for most aspiring lawyers preparation for the exam is a matter of intense focus for an extended period of time."

The chief justice also made reference to the FBBE's announcement that it would develop a program that would allow applicants to temporarily work under the supervision of a member of the Florida Bar. But he acknowledged that the program, which is slated to begin by mid-September — the earliest date that exam grades would have been released for the summer bar exam — is a "stopgap measure that will provide limited relief to a limited number of applicants."

Examinees appreciated Justice Canady's apology and recognition of their struggles, said 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 exam software experienced by a group of prospective test-takers.

But she also told Law360 that the bar applicants hope the court considers granting an emergency waiver of the exam requirement, saying that supervised practice with the requirement of an October or February exam, especially if administered through the same software platform, would only exacerbate their hardships.

"Thousands of graduates are ready to help their communities with the tremendous burdens of the pandemic and court backlogs. Should the court want our passion and energy poured into those local court efforts, we are willing to exchange pro bono hours toward COVID-19 legal needs for the privilege of joining the ranks of the legal profession, with full rights and privileges as licensed attorneys," Gaudette-Reed said. "We now ask to begin repairing our lives through meaningful employment, employer health insurance benefits, the ability to repay our student loans, and impactful community involvement."

The postponement of the remote exam was the outcome many applicants feared the most because it forces them to continue studying for several more months without 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," Johnny Carver, a graduate of the University of Miami School of Law, told Law360 after this week's cancellation notice.

In addition to pushing 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, bar applicants also have pointed to other states, such as Indiana, that have set up open-book exams in which applicants email their essay responses.

But the FBBE has been reluctant to dispense with a 100-question multiple choice section of the bar exam that would have to be hand-graded if done over email.

In the run-up to the planned online 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 Technologies Inc., which makes the software that was to be used for the Florida Bar exam, 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 a trial run set for Monday as well as the test on Wednesday.

--Editing by Bruce Goldman.

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