You be the judge! Choose wisely…1, 2, or 3?

Today, South Carolina Supreme Court Chief Justice Jean Toal addressed a Joint Assembly of the SC Legislature and specifically spoke about the recent “bar exam flap”.

The full text of today’s speech can be viewed by clicking here but I wanted to at least share her comments about the controversy with you.

Soon after this story initially “broke”, I was an Educator of the Day at Dutch Fork Middle School. Those 8th graders were on top of their current events because they not only knew about the story but also had their opinions. The general consensus was that “something didn’t seem right”.

In politics, it’s easy for folks to second guess officials and others (and I get my fair share of that myself). While I won’t question the integrity of the highest court in our state, I would question the judgement and the decision they made.

Feel free to share your thoughts. My second-guess here is simply this – why not tell the ONE person who passed (due to an error) that he actually did NOT pass? Seems that decision would be better than allowing 20 other students who DID NOT pass to end up now passing. Passing because you decided to throw out a section of the test so that you wouldn’t have to tell that original ONE young man that his passing grade was actually due to an error?

To put this into an analogy at my paying job at Wachovia Mortgage…..if I inadvertently told an applicant he was approved but later learned that was a mistake due to a certain part of his application being graded incorrectly, would I just explain that mistake to that borrower (yes) or would I then go throw out that section of the application for EVERYONE that applied that month and let them get a mortgage they otherwise would not?

You play the role of one of the highest judges in our state. What would you do?

Chief Justice Toal today….

NOW I WANT TO TURN TO THE SOUTH CAROLINA BAR EXAMINATION PROCESS, WHICH HAS BEEN THE SUBJECT OF SOME CONTROVERSY. ON BEHALF OF MY COURT, I WANT TO SPEAK TO YOU DIRECTLY, UNFILTERED BY THE GLOSS OF OTHERS.

EACH OF US IN THIS ROOM LIVES OUR LIVES AND RAISES OUR FAMILIES IN A SMALL STATE WHERE WE KNOW EACH OTHER WELL. UNLIKE LIFE IN A LARGE ANONYMOUS PLACE, WE PRIZE A LIFE OF RICH AND ENDURING PERSONAL RELATIONSHIPS. THE LEGAL PROFESSION IN OUR BELOVED STATE IS NATIONALLY RECOGNIZED FOR THE CIVILITY, DECENCY, AND INTEGRITY OF OUR APPROACH TO PRACTICE.

IN OTHER JURISDICTIONS, A LAWMAKER MIGHT NEVER MEET THE MEMBERS OF THE STATE’S HIGHEST COURT. IN SOUTH CAROLINA, YOU SEE JEAN TOAL, JIM MOORE, JOHNNIE WALLER, COSTA PLEICONES, AND DON BEATTY AMONGST YOU REGULARLY. OUR BENCH IS THE SMALLEST PER CAPITA OF ANY IN THE COUNTRY. YOU KNOW US VERY WELL.

OUR COURT HAS ISSUED SEVERAL STATEMENTS CONCERNING THE RESULTS OF THE JULY 2007 BAR EXAM. I CAN’T IMPROVE ON WHAT WE HAVE SAID AS A COURT, BUT I WANT YOU TO HEAR DIRECTLY FROM ME WHAT WE DID AND WHY.

IN THE UNITED STATES LAWYERS ARE LICENSED TO PRACTICE LAW SEPARATELY BY EACH OF THE STATES AND THE DISTRICT OF COLUMBIA. THE CRITERIA FOR THESE LICENSURES ARE SET BY THE HIGHEST COURT OF EACH STATE.

OUR THREE-DAY BAR EXAMINATION CONSISTS OF A ONE-DAY NATIONAL EXAMINATION AND A SIX-PART, TWO-DAY ESSAY EXAMINATION DEVELOPED AND ADMINISTERED BY SOUTH CAROLINA LAWYERS, THE BOARD OF BAR EXAMINERS.

THE EXAMINEES ARE IDENTIFIED TO THE BAR EXAMINERS ONLY BY NUMBER. THE KEY TO THE EXAMINEE NUMBERS IS AVAILABLE ONLY TO THE CLERK OF THE SUPREME COURT AND HIS BAR EXAMINATION STAFF.

THE BAR EXAMINERS SUBMIT THEIR RESULTS BY NUMBER TO THE CLERK, WHO THEN TABULATES ALL SECTIONS, CERTIFIES THE FINAL RESULTS, AND NOTIFIES THE EXAMINEES. AN EXAMINEE MUST PASS SIX OF THE SEVEN SECTIONS AND MEET A MINIMUM SCORE ON THE NATIONAL EXAM IN ORDER TO PASS THE BAR EXAMINATION.

ON OCTOBER 27, 2007, THE JULY RESULTS WERE RELEASED. ABOUT A WEEK AFTER RESULTS OF THE JULY EXAM WERE CERTIFIED AND RELEASED, ONE OF THE EXAMINERS RECHECKED HIS RESULT REPORTS AND DISCOVERED TO HIS HORROR THAT HE HAD INCORRECTLY TRANSPOSED SEVERAL LINES AND THUS REPORTED AS PASSING AN EXAMINEE WHO HAD FAILED HIS SECTION.

WHEN THE CLERK WAS NOTIFIED, HE CHECKED THE CONSOLIDATED LIST AND DISCOVERED THAT THIS EXAMINEE HAD FAILED ANOTHER SECTION OF THE EXAM. HE PLACED THIS PROBLEM BEFORE ME AND I CONVENED OUR COURT TO DISCUSS IT THE NEXT MORNING. AS WE SAW IT, WE HAD THREE UNPALATABLE CHOICES:

1. WE COULD NOTIFY THE EXAMINEE THAT WE WERE REVOKING HIS LETTER CERTIFYING THAT HE WOULD BE ADMITTED TO PRACTICE.

2. WE COULD DO NOTHING.

3. WE COULD DISCARD THE SECTION.

WE QUICKLY DECIDED THAT DOING NOTHING WOULD POTENTIALLY TREAT THIS EXAMINEE DIFFERENTLY FROM ALL OTHERS WHO FAILED THE WILL & TRUSTS SECTION. WE FINALLY DETERMINED TO DISCARD THE RESULTS OF THE SECTION. THIS HAD THE EFFECT OF ADMITTING ADDITIONAL EXAMINEES.

AS WE DELIBERATED THIS MATTER, WE HAD NO INFORMATION ABOUT THE IDENTITY OF THE EXAMINEES OR THEIR LAW SCHOOL.

YOU MIGHT HAVE MADE THIS DECISION DIFFERENTLY, BUT ONE THING OF WHICH YOU CAN BE ABSOLUTELY SURE IS THIS – YOUR SUPREME COURT MADE THIS DECISION WITH THE SOLE MOTIVATION OF TRYING TO BE FAIR. WE ARE PEOPLE OF DECENCY AND HONOR AND WE MUST HAVE THE ABILITY TO MAKE DECISIONS WITHOUT FEAR OR FAVOR. JUDICIAL INDEPENDENCE IS THE BEDROCK OF OUR PROFESSION.

THERE ARE NOW BILLS INTRODUCED TO AMEND OUR SOUTH CAROLINA CONSTITUTION TO PLACE RESPONSIBILITY FOR THE ADMISSION TO PRACTICE AND REGULATION OF LAWYERS AND JUDGES IN THE LABOR, LICENSING AND REGULATIONS BOARD. NO OTHER STATE LICENSES OR DISCIPLINES ITS LAWYERS BY USE OF AN EXECUTIVE BRANCH BOARD. I BELIEVE THE PRESENT SYSTEM WORKS WELL. CAN OUR SYSTEM OF BAR EXAMINATION AND DISCIPLINE BE IMPROVED? OF COURSE! INCREASED AUTOMATION WILL RECEIVE ACCELERATED ATTENTION SO THAT WE NEVER HAVE A REPEAT OF THIS YEAR’S SCORE REPORTING ERROR.

AS I ANNOUNCED LAST YEAR AT THIS TIME, SOUTH CAROLINA HAS APPLIED TO THE AMERICAN BAR ASSOCIATION FOR AN EVALUATION BY ITS SPECIALISTS OF OUR SYSTEM FOR LAWYER AND JUDICIAL DISCIPLINE. OUR APPLICATION WAS ACCEPTED LAST SUMMER, AND THE ABA TEAM WILL BEGIN ITS WORK THIS MARCH. IN THE MEANTIME, YOUR VERY EVIDENT SUPPORT FOR OUR COURT AND OUR WORK AND YOUR PERSONAL WARMTH AND AFFECTION IS A WIND AT OUR BACK.