Update 33. The courts, having punted this issue over to the General Assembly, have demonstrated the flaw in the procedural protections afforded to applicants to the Virginia Bar. With the enclosed letter (see below) I have notified a select group of state delegates and senators who may be willing to sponsor legislation that will bring Virginia up to speed with the other states in terms of transparency. The Board of Bar Examiners is on record in federal court as admitting to having an unwritten rule, unbeknownst to the candidates, that prevents any applicant from obtaining their essay answers, a rule they admit was applied in this case. I am informed by a witness to the latest exam in 2014 that the Board's software failures persist and continue to affect significant numbers of applicants at every succeeding exam. This is what happens when people, including judges, look the other way.
I have since taken the D.C. and Maryland bar exams and passed on the first attempt. Both systems operate transparently. I have decided not to take the Virginia Bar Exam again because I have lost confidence in the integrity of the system.
I am writing to you about a proposal that I have enclosed which would remedy a fault that exists in the current procedures of the Virginia Board of Bar Examiners. Let me first say that the Board is an administrative agency with both judicial and delegated legislative powers. And while there is support at the local level in northern Virginia for this proposal, this will require your office's support to succeed because the Board of Bar Examiners has refused to cooperate in making this adjustment towards transparency. I am an attorney and a magistrate in Fairfax and, based on what I have observed and experienced, there is no doubt that this proposal is what is necessary to protect the applicants and correct an ongoing problem with the new computer based bar exam. I attempted to litigate this issue, but the Virginia state courts and federal courts have decided that it is essentially a political question for the General Assembly and decided not to hear the merits of the case.
SOFTWARE FAILURES AT THE VIRGINIA BAR EXAM
Virginia's bar exam is now being administered on computer software provided to the applicants by the Board of Bar Examiners. The Board contracts with an out-of-state software company to provide this software so they can administer their test for over a thousand applicants every year. When I took the Virginia Bar Exam, I was one of a significant number of applicants who experienced a software system failure that occurred at the moment when the essay answers are to be saved and submitted. Members of the Board's technical team attempted to work on the problem but ultimately said the system had to be rebooted (abruptly turned off and then turned back on). One of the female applicants was in tears when this happened to her. An announcement was made that over the lunch break they had already discovered that 24 applicants had answers misplaced in the system from the morning session. This was exactly what happened in New York the year before: see attached, New York Law Journal "Software Snafus Upset Test Takers," July 26, 2007. I was then forced, without being able to see and verify that the answers were intact, to transfer the potentially corrupted data onto a USB thumb drive and hand it in to the graders. Upon receiving my essay score months later, I noticed a significant scoring discrepancy between the reported score and how I had performed on that day. No other information was disclosed. Of course, I immediately requested to obtain my essays. In response to my request, however, I was told there existed no corrective process and they had an unwritten rule, applied uniformly, that no applicant can obtain their essays for any reason. Even under these circumstances, where I explained that I had a job lined up at the prosecutor's office and produced a sworn affidavit saying exactly what had occurred at the test site, the secretary of the board refused to cooperate. Moreover, I was able to obtain a 20-page expert report from a leading computer forensics expert who concluded that the fault lay not with my computer but with the board's software system. As a result, I was given no redress and consequently lost a career position at the Arlington Commonwealth Attorney's Office.
The only remedy offered to me was a sham remedy wherein the board agreed to examine only what was on the USB thumb drive and do a comparison with what was printed off from the USB drive for the graders to grade (recall that the data was transferred from the software to the USB drive only after the software system failure . . . at no time was I permitted to confirm if the answers were still intact). The computer expert, and three other experts I interviewed, have been unequivocal in their conclusions that this is no remedy at all and does not address the underlying issue, namely whether the data that was saved on the USB drive in the first place was corrupted. Therefore, a comparison exercise like this accomplishes nothing because a copy of already corrupted data will necessarily be a match; nevertheless, it is still corrupted data. This is misleading. Therefore, there is no proper way to go about this other than to allow the applicant to obtain his/her essays and determine if what was graded includes everything that was written. That is what the National Conference of Bar Examiners recommends for the computer-based test, and that is how it was handled in New York. All of this was explained to a federal judge but, as I mentioned, the judge avoided the question, ruling this was essentially a political question for Virginia's legislature.
SAME PROBLEMS CONTINUE TO THE PRESENT DAY
This occurred in 2008, and I have a witness who confirms that he observed that the board's software failures continue to affect the applicants up to the most recent examination in 2014. Furthermore, this is a problem that is happening nationwide since the advent of the computer based test in 2005. For example, in New York's 2007 computer-based examination, it is well documented that as many as 47 applicants had essays that were either missing or cut short by the software after experiencing the same symptoms that I and others experienced in Virginia. See enclosed Press Release, New York Board of Law Examiners (Nov. 15, 2007) (available on archive at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm) (specifically paragraph 5 which reads "one or more of the essay answers for 47 candidates could not be recovered"). These applicants were allowed to obtain their essays; and once they did, it forced a corrective process that was not previously in existence. In the case of Eric Zeni, this made the difference between passing and failing. See enclosed Eric Zeni's account in the New York Personal Injury Law Blog. Had Eric Zeni been in Virginia when this happened, there would have been absolutely no recourse. This cannot stand, and it violates the due process rights of the applicants who expend an enormous amount of time and resources into this test and have secured positions contingent on their passing.
Allow me to provide you some background on the legislative history of this issue. In 1919 the General Assembly enacted Va. Code Section 54.1-3929 which requires the Board of Bar Examiners to preserve an individual's examination papers for a period no less than one year following an examination. This provision was relied upon by applicants and their attorneys whenever a dispute would arise. This important protection to the rights of the applicant and the integrity of the system as a whole has been effectively nullified sometime in the early 1970's when the Board put into effect an unwritten policy, unbeknownst to the candidates, that prevents applicants from being able to obtain or review their essays. This policy is being applied uniformly without exception, a fact I have the Board as having admitted to on the record in federal court. Prior to that, applicants could obtain their essays. This is a fact that I know because U.S. District Court Judge Robert Payne in Richmond replied that he could have gotten his answers when the Board attempted to say it has always been this way. Since 2005 the Board has been administering a computer-based bar exam for the essays, a condition that demands a change in policy at this time.
NATIONAL MOVEMENT TOWARDS TRANSPARENCY
In light of the national transition to computer-based testing, 44 of the states now afford their applicants an opportunity to review or obtain their essays, for any reason. See enclosed chart, "Transparency Policies of State Law Examination Offices." I hope that you will see that it is time for Virginia to acknowledge the new realities of computer-based testing and the need for transparency in the system.
The vast majority of the other state boards of bar examiners have rules that protect their applicants. In Virginia, the General Assembly sets laws from which the Board must derive its rules. Va. Code Section 54.1-3929 mentioned above is an example of one such law. The only way for this problem to be solved is for the General Assembly to act, because the Board is insistent on resisting this change.
To provide you with a brief background on myself, I went to William & Mary Law School (Class of 2008) as well as the College of William & Mary after transferring from the U.S. Military Academy at West Point. I have since taken the bar exam in the District of Columbia and Maryland, having passed both on the first attempt and have been admitted to practice in the federal courts and pending admission in the U.S. Supreme Court. However, I have not taken the Virginia Bar Exam again because, with an unwritten policy like this one in place, I have lost confidence in the integrity of the system. For more background on my story, I have published an article along with the expert I consulted in the Computer Law & Security Review (2013) (attached).
Please see my attached proposal, which includes language taken from other states which Virginia can look to for guidance to solve this problem. The Virginia Board of Bar Examiners is a state administrative agency with both judicial and delegated legislative powers.
This nonpartisan issue affects not just candidates for the Virginia Bar but by extension it affects the people of Virginia, causing well qualified lawyers trained in Virginia to leave the Commonwealth and seek admission elsewhere. Most legislation relating to the Virginia Bar Exam will be sought by the Board, but this one is for protecting the applicants from the Board's iniquitous unwritten policy of nondisclosure of test essays. I will certainly make myself available to provide a statement or sworn testimony before any committees as necessary. Furthermore, the expert report and his contact information is available upon request.
Thank you for your time, and I look forward to working with you on this important matter affecting the Commonwealth.