California State Bar officials said Sunday they will launch an independent investigation into how the essay topics for this week's bar exam were disclosed to 16 law school deans Thursday.

One of those deans—bar officials declined to identify which one—alerted a bar staffer Saturday that a memo inviting law school executives to observe a future exam grading session also improperly disclosed six areas that will be covered by the test.

Bar officials say they have no indication the information was shared with anyone planning to take the exam. But Donna Hershkowitz, the bar's director of programs, said after consulting with a testing expert bar leaders decided to reveal those topics to the approximately 9,000 registered test-takers.

The bar's email arrived shortly after 9 p.m. Saturday, leading many recipients to initially question whether the message was a hoax or the result of a hacked email server. It was not.

“On behalf of the state bar, we do sincerely apologize for this error,” Jason Lee, president of the bar's board of trustees, said in an interview with The Recorder on Sunday. “Having taken the test myself 20 years ago, I understand the stress of preparing. This only adds to the level of the stress.”

The disclosure is the latest round of trouble for California's notoriously difficult bar exam. Critics have said the second-highest-in-the-nation passing score requirement hurts would-be lawyers whose scores would be good enough to ace other states' tests.

“To have students distracted in this way, at this time, it's outrageous,” said Stephen Ferruolo, dean of the University of San Diego School of Law.

Ferruolo, who is traveling on the East Coast, said he first learned about the disclosure and bar email to test-takers Sunday morning. Since then, he said, he and the school staff have been trying to reassure graduates—including some questioning why he did not disclose the topics himself—that they are prepared to take the test. Ferruolo was not one of the deans that received the bar memo with the test topics.

“It raises questions about California's ability to administer the bar exam,” the dean said. Ferruolo is advocating for the state Supreme Court to lower the exam's passing score and to adopt the Uniform Bar Exam, a multistate test that allows applicants to transfer their scores among participating states.

California bar leaders say the “inadvertent” release happened this way: A bar staffer drafted a memo asking law school deans if they were interested in attending a grading session for the July 2019 bar exam. The second page of the memo listed the six topics the exam would cover and asked deans to rank their preferences for attending the grading by topic.

Hershkowitz said such invitations are usually sent to deans after the exam concludes. But the staffer drafted the memo and an accompanying email early and sent it out Thursday, not realizing that the document improperly disclosed the topics, she said.

David Faigman, dean of UC-Hastings College of the Law, said he learned about the bar's disclosure Saturday night. He was watching a movie at home when his daughter, a recent graduate of UC-Berkeley School of Law, came into the room and showed him the bar's email she had just received.

David Faigman David Faigman, University of California, Hastings College of the Law. (Photo: Jason Doiy/ALM)

Faigman said his first thought was that the email was a hoax; he had received nothing himself from the bar. Later, he said, Hershkowitz returned a message confirming that the news was indeed real. His message to Hastings grads was to stay focused.

“The last thing they need is to have their world turned upside down by the bar exam,” he said.

Faigman was actually one of the deans to receive the email Thursday. He said he saw the email, but didn't read the memo, and passed it on the school's academic dean, who passed it to an associate dean. That executive saw the topics and, while puzzled about their disclosure, assumed the information was confidential and did not share it with anyone, Faigman said.

Faigman said he and other deans are now asking for a meeting with the bar and the California Supreme Court to find out more about what happened and how it can be prevented from happening again.

In a statement released Sunday night, bar leaders said they considered changing the topics on the exam and even postponing the test. But the bar does not have authority to change the date of the Multistate Bar Exam, and it would take too long to prepare and print new test questions, they said. A postponement would harm those test-takers who were traveling long distances, including international applicants, officials said.

On social media, current and former exam-takers criticized the bar's actions.

“I can't see how this is fair to everyone taking the bar exam on any other test date,” tweeted @keitheyoung, who identifies himself as an attorney from Ohio. “Giving out the information as to the topics is a HUGE advantage, and anyone participating in a past or future test should be up in arms.”

Hershkowitz said graders for the July 2019 exam will be instructed not to score the tests any more harshly or differently because of the early topic disclosure.

Asked if the test results for this week's exam should be viewed in the future with an asterisk, Lee said “absolutely not,” citing “the lengths we have gone through and will continue to go through to make sure this test is viewed like any other we've administered.”

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