Bar exam – Beesquared

For the second time in a year I’m studying for a test that constitutes part of admission to the New York bar.

This one goes by the name of Multistate Professional Responsibility Exam (MPRE). It has 60 multiple-choice questions and tests knowledge of the rules of professional and judicial conduct.

Alert: reading about the bar exam may feel, to borrow a word from the novelist (and lawyer) Ayelet Waldman, “spinachy.”

I had forgotten about the MPRE when I set out a year ago to pass the bar exam and apply for a law license here in the Empire State. Last fall, I received a letter advising me that I passed, but the letter went on to say that the examiners would hold off on certifying me for admission until I passed the MPRE too.

Oh. That.

Thus, I’m studying for the MPRE, which takes place on March 28. Spinachy. Still, the material illuminates something about the law that appeals to me.

For example, you may have heard it said that a lawyer should represent his or her client zealously. That matters in our adversary system, which assumes that opposing sides, represented zealously within the bounds of law, will produce justice.

However, a lawyer also owes a duty of candor to the court. According to the rules, an attorney is subject to discipline for knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Suppose you represent a client in a New York court, and your opponent fails to call the court’s attention to a case from the state’s Court of Appeals that directly counters a position taken by your client. You must cite the case.

That doesn’t mean that you have an obligation to volunteer facts that are harmful to your client – we trust the opposing side to handle that – or that you have to cite a case from Virginia, for example, here in New York. But it does mean that you have a responsibility to the tribunal that transcends even your duty to your client.

In short, press for advantage but remember that you have a responsibility to act ethically.

Happily it’s rare that I have personal knowledge of the matters at issue in a lawsuit.

However, I know something about the charges contained in class-actions filed recently by bar exam candidates against a software maker whose system left tens of thousands of test takers struggling to upload their answers for grading.

That’s because I was one of those test takers.

On August 4, Philip Litchfield, a May graduate of Chicago-Kent College of Law, filed a lawsuit against ExamSoft Worldwide Inc., in the U.S. District Court for the Northern District of Illinois.

A day later, Catherine Booher, a graduate of Wake Forest University School of Law, and Gonzaga University Law School graduate Christopher Davis, filed a similar suit against the company in the U.S. District Court for the Eastern District of Washington. A third lawsuit against ExamSoft reportedly has been filed in the federal district court for northern California.

ExamSoft supplies the software that allows bar candidates in dozens of states to type their answers to essay questions and upload the response to a computer server. A glitch in the company’s systems on July 29, the first day of the two-day exam, left thousands of candidates, including me, struggling to transfer our answers.

“The total collapse of the ExamSoft upload system (including its upload servers, website, and phone system) stemmed from its wholly insufficient infrastructure that was unable to process the thousands of bar exam results in real time,” Litchfield charges in court papers. “This failure occurred despite the fact that ExamSoft knew well in advance of Exam Day exactly how many applicants had registered and paid to use the SofTest program.”

Test takers pay between $125 and $150 to use ExamSoft’s system, which allows candidates in 42 states to type use their computers to complete the so-called essay portion of the bar exam as opposed to having to write the answers using pen and paper.

Here in New York, where I took the bar exam, the software connects to the Internet the first time a candidate goes online after taking the exam. The rules in New York required those of us who typed our essays — by my anecdotal count the great majority of candidates — to have uploaded our answers no later than 6:30 p.m. on the exam’s second day, roughly 25 hours after completing the essays.

Of course, test takers have an incentive to upload their answers as soon as possible because until ExamSoft acknowledges receipt of the answers the candidate bears the risk of missing the deadline.

Upon leaving the testing center the first day, I headed to the nearest Starbucks, where I hoped to use the Wifi connection to transfer my answers via SofTest, the name of ExamSoft’s program. However, when I tried to log in I received messages telling me that the system was unavailable. The jam continued that night, when I gave up trying to transfer my answers and turned my attention to reviewing my notes for the so-called multistate portion of the exam the next day. Around 10:30 p.m. I received an email from ExamSoft acknowledging the delays and advising me that the company was working to solve the problem.

I finally uploaded my answers around 5:30 a.m. the next day. Several fellow test takers with whom I spoke that morning reported similar jams, which, understandably, caused plenty of candidates to freak out, judging by the torrent of messages that flew across Twitter and other platforms. “Bar takers around the country are in full-on meltdown mode,” wrote David Lat, managing editor of AbovetheLaw, an online site that covers law firms and the legal industry, amid the outage.

ExamSoft attributed the problem to changes to the system. “Unfortunately, (recent) upgrades, made in an attempt to improve the exam taker experience, played a role in the post-exam processing delay that some bar exam takers experienced on July 29, despite system field performance review and ongoing monitoring,” Ken Knotts, an ExamSoft vice president, told the Associated Press in a statement.“We can confirm that this was not simply a matter of the large volume associated with the July 2014 exam.”

Knotts added that the company is not aware of any student who missed his or her deadline.

Still, Litchfield contends that the system’s poor performance resulted in significant emotional distress to candidates. The company “was fully aware that tens of thousands of individuals nationwide would attempt to upload their exam results within a very small window of time…,” he alleges.

“They knew that this was happening and we’re already so unbelievably stressed out as it is,” Booher told the AP. “They’re not getting punished, they’re not apologizing for adding to our mental anguish. Had they just come out and said, ‘Oh, my God, we are so sorry’ and refunded my money, maybe it would have been different.”

The lawsuits, which were first reported by the National Law Journal, also accuse ExamSoft of deceptive business practices, breach of contract and negligence.

Though the system obviously did not work as intended, it remains to be seen whether any candidate can show that the outage prevented him or her from uploading answers by deadline.

Further, while ExamSoft has earned heaps of bad publicity, it is unclear whether the plaintiffs will be able to produce evidence sufficient to support a claim of emotional distress, which generally requires a person to show that he or she experienced some physical symptoms as a result of the defendant’s negligence.

I will not join the class action, which to me is much more interesting to write about. Under court rules, ExamSoft has 21 days after being served with a complaint to answer.