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Friggin’ Lawyers? November 21, 2007

Posted by fitsnews in SC Politics.
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ACTUALLY, S.C. SUPREME COURT, BAR ASSOCIATION ARE THE ONES GIVING LEGAL PROFESSION A BAD NAME

FITSNews – November 21, 2007 – Five days after mildly questioning the S.C. Supreme Court’s controversial decision to throw out an entire section of the state bar exam – which resulted in five Circuit Court law clerks and two “connected daughters” passing the exam – the S.C. Bar Association folded faster than cheap suit yesterday in an effort to curry favor with the Justices. In a statement praising the “integrity” of the bar admissions process, the association said that the Court had “put to rest any speculation” concerning the controversy.

Really?

“I’m embarassed to be an attorney in South Carolina right now,” said one lawyer who e-mailed the Bar’s statement to FITSNews on the condition of anonymity. “First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”

True that. Chief Justice Jean Toal and her colleagues may have earned the “confidence” of the S.C. Bar Association, but their good standing with attorneys and the general public has been dealt a tremendous body blow by this scandal.

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Comments»

1. Thanks to FITSNews - November 21, 2007

FITSNews

On behalf of the vast majority of attorneys in this state, I would like to thank you for staying on top of this story. As much as some of our supposed leaders in the legal community would like to see this story fade, it is imperative that this issue is fully resolved and proper measures are taken to prevent this type of misconduct from reoccurring.

As noted in your post, practicing attorneys in this state cannot afford to publically criticize the parties involved in this misconduct, a likely reason for them to feel emboldened to behave so irresponsibly. The recent statement released by the Supreme Court was the most illogical and poorly reasoned excuse for the misconduct that clearly occurred and only raises more questions. Again, I commend you on your efforts and please keep up the good fight.

2. SC - November 21, 2007

According to The State, this has been put to rest. If this were a real story, The State and its professional journalists would have challenged it. Since they accepted it at face value without comment, there is obviously no story here. Plus, The Bar, fully backed by its membership of more than 11,000 attorneys, has praised the response. As such, there is nothing to see here, and everyone should just move along.

http://www.thestate.com/local/story/235794.html

By the way, has anyone talked to the T&E examiner for comment? I saw his name posted on a blog sometime recently.

3. SC Attorney - November 21, 2007

The T&E examiner was Kenneth Poston. He is an attorney in Greenwood. I do not think that the State or anyone has contacted him for his take on the “scoring error”. I am not sure why they have not done so.

4. What? - November 21, 2007

Move along or not. You still don’t give a law license to 20 people who have shown an inability to meet the floor of competence necessary to be a lawyer in this state just because of one examiner’s error on one exam. Errors shouldn’t result in these types of gifts when it is the welfare of the general public that is the central focus of adequate professional licensing. Although, I do not believe that there were under the table dealings here as been implied by those idiotic emails and facebook posts, I do not believe that the Supreme Court made the right decision here. When the welfare of the general public is at stake, I believe it is better to tell one person who believes he or she passed that they failed than to pass 20 people who didn’t actually pass. This isn’t a scandal, its just bad decision making.

5. Give me a Break - November 21, 2007

#2

How do you come to the conclusion that bar is “fully backed by its membership of more than 11,000 attorneys” in praising the court’s statement? I for one do not share the sentiment, and I haven’t spoken with anyone else who does either. Did you actually read the supreme court’s statement? It was pathetic. They would have been better off staying quiet than releasing that piece of nonsense.

6. Silence Dogood - November 21, 2007

“Plus, The Bar, fully backed by its membership of more than 11,000 attorneys, has praised the response. As such, there is nothing to see here, and everyone should just move along.”

Fully back??? That implies all of the attorney’s in this state agreed with the statement. I have already talked with several today that very vociferously disagree with that statement and are perplexed and disturbed the S. Court’s most recent statement.

“If this were a real story, The State and its professional journalists would have challenged it.” Interesting assertion consider the State and its professional journalists did not even realize it was a story (which they consequently wrote several articles about) until after it bubble up from the blogosphere???

What?

I agree with your concern about the 20 (or I guess 21 extra) faux-lawyers out there, but you also mention “Although, I do not believe that there were under the table dealings here as been implied by those idiotic emails and facebook posts”

The things that make those “idiotic” emails is that they came out before the date that the Supreme Court was supposedly made aware of the incident – did the grader, who keeps chekcing scores even after turning them it – go to Kendall Burch first, and then the Supreme Court? All of this, while mind you, never breathing a word of it to his boss. I am no conspiracy theorist, but it is pretty clear on its face that the statements by all of those involved do not currently square with one another. Therefore I am not placated by the court’s explanation. I truly think it raises more questions.

7. Two Cents - November 21, 2007

For the record, there was nothing wrong with the exam or the T&E question. It was simply a “reporting” error that resulted in one false pass. I’m sure the supreme court would have loved to have hung their hats on a faulty question or abnormally high pass rate (both rumors were tossed about), but I guess that didn’t work out.

The evidence that Sen. Harrison, Judge Burch, Catherine and Kendall were involved in professional misconduct by contacting the bar examiners either directly or through their agents is beyond a reasonable doubt. The circumstantial evidence linking their improper communications with the bar examiners to the subsequent change in the bar results is at a minimum clear and convincing.

As to the court concluding that 21 wrongs makes a right. To me, this was the absolute worst possible decision “among all competing alternatives”, aside from throwing out the entire exam. This decision violated the court’s own rule that “the results reported by the Board of Law Examiners is final” and was also grossly unfair an inequitable to everyone else who failed. The obvious solution was to let the one person pass, end of story.

So why did the court choose this course of action? Inquiring minds want to know. Sadly, we already know the answer.

8. Two Cents - November 21, 2007

Also, EVERYONE who failed the exam was in “exactly the same position” as the guy who received the false pass, not just the now infamous 20. There was no indication that the other 20 were the innocent victims of a scrivener’s error. Surely if there was any evidence to that effect, the bar examiner would have found this while doing his master’s bidding and culling back through the exams after the results were “final.”

9. SC - November 21, 2007

My comments above were more hyperbole based on the lack of journalistic investigation demonstrated by The State in the linked article. However, considering the mere 7 comments here all day, maybe the story really is dead.

10. Completely Wrong - November 21, 2007

The only fair and equitable solution that the Supreme Court has at this point is to break their new “all scores are final” rule and allow regrades for the July 2007 exam for all test takers who failed an essay, thus not giving an unfair advantage to those test takers who just so happened to fail the Wills, Trusts essay and benefit from the fact that they just so happened to fail the “faulty” essay and thus benefit from having it not count against them.

The Supreme Court’s conclusion is highly inequitable and downright unjust. How can the Supreme Court tell those others who failed with a straight face and clear conscience that there is no possibility that there was a scriveners error or scoring error that occurred in the grading of their essays?

11. Reflections from an SC lawyer - November 21, 2007

Imagine if Toal and Co. had just let the grades be “final.” One guy would have passed who shouldn’t have. Furthermore, no one would have even noticed the false pass had they not gone back to review the exams after the results had already been posted. But instead, a few powerful people decided to throw their weight around and cash in on some political favors, and of course Toal and Co. dutifully obliged. Now the reputation of the SC judiciary has been tarnished for many years to come and there will always be a big fat * in everyone’s mind when they think about people who passed the July 2007 bar. And for what? So two little girls didn’t have to suck it up and wait until February to take the bar again.

Frankly I don’t see how Toal can put on her robe and look herself in the mirror after this. She should step down, but she is to “proud” and probably thinks that all of the “good” she has done for this state outweighs this little slip-up. Well, I for one will remember, and I hope everyone else does as well. In law school I read her opinions and thought she was a pretty decent person. Now when I read them, I will just wonder who cashed in on their political capital to sway her opinion. All parties involved, from Catherine and Kendall up to Jean Toal should be absolutely ashamed of themselves for what they have done to this state. And the saddest part of all this is that these people will get away with it and one day we will see little Catherine and Kendall is some position of power and the story repeats itself.

12. SC Attorney - November 21, 2007

If a student who failed a different essay were to find a SC attorney who specializes in Constitutional Law attorney willing to take this case on, then they would win this case. It would be a huge precedent because every other time that a state’s failure to allow bar exam grade appeals has been taken to court, there was never a reason to suspect any favoritism or wrongdoing on the part of the Board of Examiners. In our instance, there is more than enough evidence of such, regardless of what the Supreme Court or the SC Bar say about it.

Of course, no attorney in this state would threaten his/her career by taking such a said case on, but perhaps a Con Law attorney practicing in another state, but licensed in SC would take such a case on.

Then there is the fact that the SC Supreme Court would hear the case and toss it out as it is basically against them. However, in our instance, I believe that the Federal courts would hear the case because there is an obvious bias in allowing the state courts to hear it and, since it deals with a due process (constitutional issue) I believe that there is enough of substantial federal question at hand to invoke federal jurisdiction on the matter on the basis of federal question jurisdiction.

This is really interesting stuff… the federal courts have never heard a case dealing with bar exams or bar admissions because they want to leave these issues to the state courts to decide since it is a state matter. BUT, here we have a bias and a showing of favoritism and at the very least we have a prima facie case of such.

This could be a huge case which would set precedent. But, again, I doubt anyone is crazy enough or brave enough to take it on and go up against our justices.

13. Another SC lawyer - November 21, 2007

Well said, #11. Unfortunately, Kendall and Catherine probably aren’t ashamed, and I’d guess they don’t think they did anything wrong at all.

I would add that I pity the other 18 false positives…if they have any sense of self-respect, they’ll never have the feeling of true accomplishment one gains from legitimately passing the Bar.

Thanks again to FITSNews for staying on top of this….it is much appreciated.

14. question - November 21, 2007

#12,

Maybe that constitutional lawyer (seeing as how he doesn’t care whether he pisses off the SC Supreme Court) could also bring a federal action challenging court appontments as well. ; D

15. dx - November 21, 2007

18 false positives…what about EVERY sworn in lawyer who took the July 07 SC Bar exam? Which one of us was the false positive. We can now all walk around with the thought that maybe it was I who should have failed. I want to know who that was.

16. Biggie - November 21, 2007

The only folks who really have any ability to do something about this are in the legislature. If something like this happened on the federal level, we might expect congressional hearings, but in the cozy world of SC politics, it ain’t gonna happen. The lawyers in the legislature are too scared of the court to say anything, and non-lawyers don’t seem interested.

Why hasn’t any member of the legislature (other than Harrison) said anything? The shame of it is that this would be a good opportunity for a young and rising star to get some good statewide press by raising a little stink and asking for hearings. Bashing judges and lawyers would probably raise the popularity of most politicians.

17. Natasha - November 21, 2007

Biggie, great point…Politicians have been VERY quiet on this issue…ass backwards SC…

18. Legal Eagles - November 21, 2007

#13

You are probably right. Catherine and Kendall probably think they are pretty clever for gaming the system. If they are so clever and smart, perhaps they could have spent more time studying for the bar exam and passed it legitimately without making the entire state look like crap.

19. concerned member of the Bar - November 21, 2007

I must be missing something here.

First, I thought that, after the original list of passing applicants was posted, after Rep. Harrison and Judge Burch contacted George Hearn and/or the Clerk of the South Carolina Supreme Court to ask about the scoring of the WTE section of the July Bar Exam, the Bar Examiner responsible for that section discovered an error within the section itself, which he reported. That error resulted in the entire section being thrown out, resulting in a change from fail to pass for 20 applicants

Now, I hear that the change from fail to pass had nothing to do with any error within the WTE section itself . It resulted because that Bar Examiner, who was grading his section without knowing the name of any applicant, but had Bar ID numbers correlating with applicants’ names, transposed a digit in one of those numbers, causing him to report that applicant as having passed, when that applicant had actually failed.

Instead of simply fixing that mistake and letting that applicant know about it and that he/she had failed the Bar Exam, the Supreme Court apparently opted to compound that mistake, throw out the entire WTE section of the Bar Exam without so much as an explanation, thereby permitting 20 applicants with failing grades to pass.

If the latter version is true and the WTE section did not contain an error, then there was no good reason to throw it out; there was no good reason to pass those 20 applicants; and, as members of the South Carolina Bar, we are in really big trouble. The rule of law will mean whatever those in authority want it to mean, and the rest of us will just have to understand that the rules are always subject to change, when the powers that be deem it necessary.

I had a really difficult time trying to understand the first explanation provided by the Supreme Court for failing to follow their own rule in this case, but their second explanation, which failed even to address not following that rule, makes absolutely no sense.

The King has no clothes!

20. Silence Dogood - November 21, 2007

SC Atty, sorry for misconstruing your hyperbolic language earlier – I thought you were being serious – it is often tough to tell the tone of the written word.

As for you suggestion about legal action –

“I believe that there is enough of substantial federal question at hand to invoke federal jurisdiction on the matter on the basis of federal question jurisdiction.” An out of stater who failed may well be able to just get a con. law specialist in his or her state to bring the suit in federal court in his or her state??? Probably won’t happen, but it feels good to think about it.

21. Keys - November 21, 2007

Lawyers always tell me that we are a “nation of laws, not men”.
This affair shows that all of lawyer talk is crap. They are terrified of the system they have created, and yet they continually tell their clients to be brave, to trust justice, and that justice is blind. Horse crap to all that.

It is as we have known all along…the system is unable to be honorable because there are not enough honorable men and women in the system to keep it honorable. When the bar decides to live by its code of ethics, instead of managing it, then the Jean Toals of the world will be turned out

22. SC - November 21, 2007

The problem is that the Executive, Legislative and Judicial branches of government in this state are so commingled and intertwined that they are all virtually the same. One won’t go against the other for fear of retaliation. It is a “you scratch my back and I’ll scratch your back/ don’t mess with me and I won’t mess with you” type of scenario.

The federal courts would not be so kind to the SC Supreme Court if sued.

23. Thanks for the Insult - November 21, 2007

I find it insulting that the court in its statement acknowledged the “honest and thoughtful criticism of [their] actions” but then turned around and trotted out Pleicones to call everyone “conspiracy theorists” in the State Paper. It is pretty clear how highly they regard themselves and how they feel about us lowly common folk who dare question their judgment.

24. Regina - November 21, 2007

I’m not sure the story is dead. The Court has been served with a media FOIA request and has not responded as far as I’ve heard. If the request is rejected, it will be proof positive of corruption in my mind (like I need any). Of course, even if they produce documents there will be no way to tell if they are legit.

It’s a dirty, shameful disgrace.

I’m wondering, though: nearly all the major players are women (not counting daddies). Has there ever been an all-female ethics scandal in SC?

Progress, ladies!

25. Note from Catherine Harrison - November 21, 2007

OMG, why are y’all still going on about this? Like, it wasn’t that big of a deal. The question was REALLY hard and like, EVERYONE failed it. Me and Kendall worked really hard to show the court how wrong they were! And why do y’all keep talking about all these rules? Are there rules about the bar exam? LMAO, I had no idea! Well, I guess I gotta go now. Me and my BFFs are going to Pavlov’s tonight to get sloshed and make out with boys.

Later!

26. Note from Kendall Burch - November 21, 2007

Cathrine-

Didn’t see you on facebook last night, I guess you were out on town. All is well with me. The Judge is helping me learn about courts and stuff and how to look in the books on the shelves for the rules and cases. Today she let me watch while lawyers argued their cases to her. It was REALLY cool. It was just like in the movies, but everyone was kinda ugly 🙂 Can you believe we are lawyers now? It is TOTALLY AWESOME! Are people still talking about that silly T&E question? I don’t like reading newspapers, kinda boring. Text me later!

27. SC Attorney - November 21, 2007

Silence Dogood,
Diversity jurisdiction as you are saying would get it to the fed courts too, but I don’t think we have it here since the test taker would have had to come to SC to take the test and should have reasonably expected to have to sue here for that reason. But through federal question jurisdiction, I think it could get to the fed level. Due process has been violated and there is clear and convincing evidence of that. Enough Civil Procedure class.

As far as Plaintiffs suing I have heard from reliable sources that a few students are bringing suit for not getting their essays regraded. We shall see what happens.

This is truly a disgrace. Thank you fits news for keeping it going and hopefully the State will as well. I still don’t know why no one has questioned the T&E examiner, Kenneth Poston, regarding what exactly the error was and why he waited to report it.

28. Ashamed SC Lawyer - November 21, 2007

Now the SC Bar is getting in on the scandal and backing down from criticizing the Sp. Court. They took down the E-Blast # 490 which asked the Court to explain their actions! Well I for one still have my copy in my email in box and if anyone wants the copy you’re welcome to it.

I just want to say how ashamed I am to be a lawyer in SC right now. The Sp. Court and now the SC Bar should also be ashamed!

29. Text Message from Catherine Harrison - November 21, 2007

Kendoll,

Sorry I missed you babe. All is well with me to. Daddy bought me a new Land Rover for passing the bar! Can you believe it?!?!? It is really cool. I accidently hit a parked car on the way home from the bar last night though. It has a big scratch on one side of it now. That person was parked way out in the road, so I just drove off. I mean the NERVE of some people! Yeah, people are still talking about this stupid bar thing. Daddy says that Jean is real mad that everyone is saying mean things about her. She will be at Thanksgiving dinner tommorrow so we will talk about it then. Anywho, we just got the Pavs so I will call you later. Huggs and Kisses! 😉

30. NCLawyer - November 21, 2007

Does anyone else think the S Ct and the SC Bar might have worked this out in advance? It’s certainly possible that that the S. Ct went to the Bar and said, “ask us to explain, then after we give an explaination, put out a public announcement that all is well and you are fully satisfied with the response. That way we can put this all behind us, and answer on our own terms.”

31. FITSNews - November 21, 2007

#25, #26 & #29,

First, remind us to never piss ya’ll off …

Second, while we’re not going to delete your comments (this is a free forum), we do try to discourage people from representing themselves as somebody they’re not. Obviously, you’re not Catherine or “Kendoll” (we get it), and while your stuff is pretty funny, it’s probably not a good idea to use their names in your comments … or if you do at least identify yourself as “anonymous – a.k.a. (fill in the blank)”

Third, we know we’re turning a little cranky in our old age, but that’s what happens when you forget to take your daily fiber supplement.

-FITSNews

P.S. – Pretty funny, though.

32. Not a Lawyer, Just a Reader - November 21, 2007

hmmmm….why do I get the feeling that all these comments are from the same 2 posters who are just responding to themselves over and over under different screennames? In fact, I just read one of the other bar stories on here that had about 100 comments following it, most of which were posted during daytime hours by people claiming to be “attorneys” – if you actually are attorneys (which I highly doubt you are), shouldn’t you be at work? Are you actually billing your clients while you read blogs and post middle-school level gibberish? Maybe it makes you feel “young” again, who knows, hey whatever it takes to get through the day right.

33. Kendall B. (WARNING - satire) - November 21, 2007

Catherine,

Your new car sounds awesome! Did you get then license plate number of that jerk who parked out in the road? That is TOTALLY illegal you know. I would probably report them, or at least sue them to pay for the scratch on your car. You might be able to get extra damages if they intentionally tried to make you hit their car.

I wish I could go to Pavs tonight! I have a big day tomorrow though. The Judge wants me to research something on tortious interference over Thanksgiving break. I guess it has something to do with a turtle being in the road. Can you even sue a turtle? I guess I will just google it tomorrow. Man, being a lawyer is really hard! Thinking about things makes my head hurt.

34. Catherine H. (WARNING - satire) - November 22, 2007

Kendall,

We just left Pavs and I am SO drunk! We are going to Club Ra now, they have a drink special on Crantinis. YOU SHOULD COME! Darnit, why do I always have the hiccups? LMAO. They just won’t stop! Maybe I shouldn’t be texting you and driving. Oh well! Anywho, I don’t think you can sue turtles because they are immunized from the law because they don’t understand the consequences of their actions. Kinda like us I guess! hehe. 😉 I would just make something up and give it to the judge, she won’t care. My head hurts when I think about stuff too. Oh well, gotta run!

35. Legally Blonde? - November 22, 2007

To #32 – Despite the screennames, no these are not attorneys. At least I hope not. No, these are just law students, which I guess really isn’t all that assuring b/c they will be attorneys sometime soon. Although on the bright side – after reading these blog comments, I think my 13 year old is ready for law school.

36. concerned member of the Bar - November 22, 2007

While I like to think that I have a good sense of humor and enjoy a good laugh, I wish this was a laughing matter. It’s sad, and it and the players involved in it are nothing to laugh about. I’ve been lucky enough to be an attorney for more than 30 years, and, like other members of the Bar who can identify with me, I believe the joke is on us. I just don’t feel like laughing.

When I went to law school, the country had just survived Watergate, and lawyers were held in contempt. Polls were taken, and the public ranked attorneys lower than used car salesmen. With the passage of time, I was naive enough to think that attitudes would change. I have always been proud to be an attorney and believed we deserved respect. After all, we’re supposed to be members of an honorable profession. But, some things never seem to change. While we should be working hard to earn and keep public respect, let alone preserve our own self-respect, we abandon our principls and act like amateurs.

Rodney Dangerfield was funny when he said, ” I get no respect.” He laughed at himself, and we all laughed with him. When the SC Bar gets no respect, I don’t think that’s funny, because it’s a bad joke, but the laugh is on us, and we deserve it.

37. Silence Dogood - November 22, 2007

I for one don’t claim to be an attorney, and find the accustion appaling that I have to be an attorney to makejibberish or asinine comments (I can do that with no law school needed) as for this comment though

“I just read one of the other bar stories on here that had about 100 comments following it, most of which were posted during daytime hours”

The one you read had the times the posts were made and not just the calendar date…which post was it?

38. Anon - November 22, 2007

I thought it was bad enough that the Court was bringing itself down, but now the SC Bar!?!? Argh. Its about-face is shameful. The SC Bar does not speak for me.

39. Pete - November 22, 2007

Anybody know who “the one” was that supposedly passed when he really failed?

40. JS - November 23, 2007

The system is without honor because the poeple in it do not require honoralbe actions.

We are supposed to be a nation of laws, not men. Is SC…it is about each and every lawyers right to be profitable.

41. SC Attorney - November 23, 2007

This is a crying shame. The Supreme Court’s explanation confused the matter even more (how do 21 wrongs make 1 wrong right)? Also, if the Supreme Court was going to throw Wills, Trusts out because “it would only be fair to those others who failed that section, then why not give every test taker who failed an essay a free pass on any essay – that would be more fair. The fact is that the “scoring error” had nothing to do with the actual material or grading manner of wills, trusts, but rather it was a clerical error. Clerical errors could have occurred on any of those essay sections – not just wills, trusts.

Sadly, the reason is that a few privileged kids just happened to fail that particular essay and they were given a free pass, while those who failed only, say the UCC section, will have to retake in February.

Is it just me or does anyone else think that this scoring error, scriveners error, whatever you want to call it is proof that the new “no-appeal” system is “more than adequate to safeguard against any grading errors” as they say in March’s order? That is, if the decision to change the grade truly was due to a scriveners error and not due to favoritism. Either way, the Supreme Court has screwed up. If the change wasn’t for reasons of favoritism, then it was due to a flaw in the grading system that now allows no appeals to grades. How can the Supreme Court tell people with a straight face that appeals are not needed because errors are safeguarded against?

Am I the only one who sees a problem here with there being no appeals process in place for the july test takers who failed and for those who will take the exam in the future?

42. SC Attorney - November 23, 2007

Sorry, I meant to say…

Is it just me or does anyone else think that this scoring error, scriveners error, whatever you want to call it is proof that the new “no-appeal” system is NOT” more than adequate to safeguard against any grading errors” as they say in March’s order?

43. JD - November 24, 2007

No story in the State in two days.. the last one said that the SC Bar had put this issue to rest. I don’t think it has been put to rest, but I wonder if we will see any more articles or coverage.

44. The Blogosphere on the Bar Exam « Not Very Bright - November 25, 2007

[…] FITSNews. […]


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