New State Bar board faces a string of first-time challenges

For the State Bar Board of Trustees members who assumed new roles on Friday were the first to be sworn in remotely, and immediately face some first-time-ever challenges, such as the online bar exam.

"While we hope and strive for perfection, we have to expect some hiccups and deal with them as they arise," the new board chair, Sean M. SeLegue, a partner at Arnold & Porter Kaye Scholer LLP, said of the Oct. 5-6 exam.

State Supreme Court Justice Joshua P. Groban swore the five members in via Zoom. In addition to Selegue, they are: Vice-Chair Ruben Duran, partner at Best Best & Krieger LLP; new trustee Christine J. Gonong, senior associate at Nguyen Lawyers ALC; and Hailyn J. Chen, partner at Munger, Tolles & Olson LLP, who will serve an additional term as trustee.

Former trustee Debbie Manning resigned her position two weeks ago. Arnold Sowell Jr., executive director of the nonprofit NextGen Policy, will fill her spot through 2022.

In his first report as chair, SeLegue acknowledged some of the bar's challenges as he takes over from outgoing chair Alan K. Steinbrecher.

Bar applicants, law school deans and other advocacy groups have all expressed concerns in petitions to the state high court.

The petitions have argued that the program used for administering the exam, developed by ExamSoft, could violate test-takers' privacy and questioned whether the company could administer such a large-scale exam.

ExamSoft CEO Sebastian Vos said in an email Monday, "In 2020 ExamSoft has delivered more than 1 million proctored exams, including 167,000 exams simultaneously and remotely for a single high-stakes assessment across a diverse population and dispersed geographic location."

In California, 12,000 people have applied to take the exam this year. Last year, approximately 45,000 people around the country took the exam, according to the National Conference of Bar Examiners.

Late on Friday, the court directed the bar to destroy personal identifiable information collected during the online exam.

"The court understands that collection of this data is critically important to ensure the integrity and security of the examination process," the court wrote in a letter to the SeLegue. "At the same time, ExamSoft's privacy policy appears to permit the company to use and disclose applicants' data for many purposes, some of which appear to be unrelated to the administration of the examination."

The court asked the bar to submit within 60 days a proposed timetable to destroy all the data retained by ExamSoft and its third-party providers.

The court has previously tasked the bar with implementing a temporary provisional licensure program for 2020 law school graduates who haven't passed the exam but wish to practice until the program ends in June 2022. After that, applicants will have to pass the exam to remain licensed. The new board will have to deal with that program's implementation.

On Thursday, the bar approved the plan developed by the Provisional Licensure Working Group. The draft rules will go to the court for approval.

The board will also have to consider other significant initiatives.

The Paraprofessional Working Group is looking into licensing nonlawyers to practice in certain areas of the law. The newly formed Closing the Justice Gap Working Group is exploring the role of technology and private companies in providing legal advice to consumers.

There's also a new ad hoc committee that will study the attorney discipline system and investigate whether there is racial inequality in it. A bar report last year revealed that white lawyers were subjected to fewer probations compared to other racial groups.

The probation rate for Black male attorneys between 1990 and 2018 was 3.2%, compared to 0.9% for white male attorneys.

"This effort is the natural evolution of a deep dive into the discipline system that the board, its regulation and discipline committee, and the Office of Chief Trial Counsel have been undertaking in recent years," SeLegue said. "So, we have an ambitious year ahead of us on all of these special projects, in addition to our usual responsibilities of managing the State Bar."

The board also approved changes to Minimum Continuing Legal Education requirements. Attorneys will have to take two hours of hours of elimination of bias training per three-year cycle including an implicit bias training requirement, according to the bar's website.