Bar Exams

Is This Cheating On The Bar Exam?

Is what this bar applicant did really that bad?

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Test failI watch a lot of cooking competition shows: Chopped, Top Chef, Guy’s Grocery Games. While I’m not particularly proud of that last one, they all have highly timed elements that require you to put your hands up in the air (no, not because you don’t care) to demonstrate that you are not working beyond the allotted time. Turns out those of you taking the bar exam can learn from that example.

In Ohio, a Case Western Law graduate is learning this lesson the hard way. We’ll call her Jane Un-Esquire, because she isn’t having a very good run. While taking the the July 2014 bar exam, it seems Jane had a hard time sticking to the “pencils down” rule. The details of her foibles are laid out below, and as you go through them, try to quantify just how bad the “cheating” is:

The male applicant sitting at an adjacent table to the left of and facing [Jane Un-Esquire] testified that he looked over and observed [Jane Un-Esquire] fill in about three bubbles after time was called. He did not immediately report his observation to a proctor, though he did ask a female applicant at his table—whom he did not know prior to the exam—if she had observed [Jane Un-Esquire] writing after the command to stop. She replied that she had not. [Jane Un-Esquire] does not dispute that she continued to write after time was called at the end of the morning session, but she testified that she filled in just one bubble.

During the afternoon session, the bar-exam official once again gave a five-minute warning before the end of the session. Five minutes later, she instructed the applicants to stop writing and place their materials in the upper-lefthand corner of the table. Because of the conversation between the male and female applicants at the adjacent table following the morning session, the two applicants looked in [Jane Un-Esquire]’s direction to see if she would again write after time was called. Both of the applicants at the adjacent table testified that [Jane Un-Esquire] filled in one bubble after time was called.  The next morning, the female applicant advised a proctor of her observations. [Jane Un-Esquire] testified that she was certain that she did not write past the allotted time during the afternoon session.

Jane’s saga continued to the second day of the exam, the dreaded essay day:

Because the female applicant reported her observations the previous day, Rosey White, a 13-year employee of the Office of Bar Admissions and a proctor for the exam, approached [Jane Un-Esquire]’s table at the end of the time allotted for the first two essay questions. According to White’s testimony, after the instruction to exit the program had been given, she observed that [Jane Un-Esquire] did not remove her hands from the keyboard and let them hover over it as if she were going to continue typing—but she did not continue to type. White approached [Jane Un-Esquire], placed her hand on [Jane Un-Esquire]’s shoulder or desk, and gave her a command to stop. After receiving the verbal command, [Jane Un-Esquire] removed her hands from the keyboard and then exited the essay program. Neither the adjacent applicants nor the proctor observed [Jane Un-Esquire] typing past the allotted time in either of the remaining essay sessions.

So it seems like she probably did something she wasn’t supposed to do. At most, she answered four questions after time was called, and while no one suggests that is ideal, there is a prescribed penalty in place for people who do exactly that:

[The Board of Bar Examiners] imposed a 16.7-percent penalty on the MBE portion of [Jane Un-Esquire]’s exam—a sanction comparable to those imposed on applicants who had been determined to have written after time was called on an essay question. Even with that penalty, [Jane Un-Esquire]’s score was high enough to pass the bar exam, but the Board of Bar Examiners referred the matter to the Board of Commissioners on Character and Fitness for further review.

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So that is the end of the story, right? She did something wrong and the appropriate punishment was doled out. Nope. That wouldn’t be nearly interesting enough to make our pages:

Accordingly, we adopt the character-and-fitness board’s finding that in light of her conduct during the bar exam, [Jane Un-Esquire] has failed to prove that she currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio. Consequently, we disapprove [Jane Un-Esquire]’s application at this time. However, [Jane Un-Esquire] may submit an applicant’s affidavit and a newly completed supplemental character questionnaire to the Office of Bar Admissions on or after May 1, 2016, and if those documents reveal no further character and fitness issues, [Jane Un-Esquire] may be sworn in as a member of the Ohio bar.

The Ohio Supreme Court comes over the top with the punishment, functionally damning Jane Un-Esquire to underemployment, loan deferral, and general sadness. Here’s hoping Jane can tough it out for a little longer and finally make it to the world of lawyering. Which, come to think of it, isn’t much of a prize, but at least it is the goal she was aiming for.

Late-Writing Bar Applicant Denied Admission (For Now) [Legal Profession Blog]

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