CBEC & The CT Judiciary: Show Us The Proof, But We’re Gonna Hide It From You:

I did not attend the Connecticut Bar Examining Committee’s virtual meeting this morning to listen in on its discussion of diploma privilege. I considered the meeting itself to be a public relations sham and a complete waste of time. From accounts that I got after the fact, it appears that I was right.

The way the advocacy for diploma privilege had been presented to the committee was compelling enough to get it to listen, but, like many similar efforts across the country, the very message that got the issue in front of the committee to begin with turned out to be its Achilles’ heel. The initial advocacy focused heavily on race and hardship – financial, personal, and logistical. The combination of race and hardship was enough to catch the politically correct of the committee. It alone was never going to be enough to change its mind.

The Connecticut Bar Examining Committee was forced to hold today’s meeting. Its members view themselves as public minded and socially in-tune individuals. Consequently, when diploma privilege advocates made the argument that the bar exam is racist in origin and in disparate impact, the committee could not ignore the argument for public relations purposes.

Justice Andrew McDonald, however, foreshadowed the CBEC’s refusal to recommend diploma privilege to the CT Judiciary’s Rules Committee on Tuesday. As head of the Rules Committee, Justice McDonald indicated to the media that his committee would not consider diploma privilege without recommendations from the CBEC and the chief disciplinary counsel’s office.

Justice McDonald’s message was clear. Yes, I am likely sensitive to whatever racial and personal hardship arguments you can raise, but they don’t carry the day. I consider them to be mere fig leafs that make the decision look better if we decide to go in that direction. McDonald’s comments indicate that he would need overwhelming evidence that the bar exam does not serve the purpose of protecting the public.

Diploma privilege advocates have largely neglected that aspect of their advocacy, relying instead on conclusory assertions that it doesn’t serve to protect the public. They also largely ignored the provisions of the Connecticut Rules of Professional Responsibility that would bolster their case that the public is already adequately protected from their incompetence.

To be fair to the diploma privilege advocates though, the Connecticut Judiciary has demanded that they supply proof that they would have to fight to obtain. The state’s Freedom of Information Act processes have ground to a halt, and the chief disciplinary counsel’s office has been overwhelmed with grievances from needy members of the public who blame their lawyers for a stagnant judicial process. FOIAing disciplinary metrics would thus prove to be a daunting and lengthy task and one that the disciplinary counsel’s office would likely oppose.

Consequently, diploma privilege advocates are in a no-win situation in Connecticut. The judiciary demands something that it then denies them the opportunity to obtain. To the advocates’ credit, they got the committee’s attention, but they allowed the voices of a desperate constituency to take precedent over crafting a systematic argument that anticipated and addressed the opposition they’d face.

Arguing for something when the people judging you assign you a presumption of incompetence is hard. Making a mistake in your advocacy is fatal. Being perfect can still fail when the people judging you control the relevant information for you to make your case and make it difficult for you to obtain it. The Connecticut Judiciary taught that lesson to the class of 2020 the hard way today.

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