The Board of Law Examiners (Board) has the authority to bring charges against a test taker (applicant) for any violation of their rules (22 NYCRR 6000). The violation can be based upon observation by a proctor, a report from exam security, a report by another test taker, or by computer detection software. They do not bring charges lightly, but when they do, it is usually a serious situation.
There are violations that could be considered “minor,” such as possessing a cell phone or other prohibited device. However, even these minor infractions must be addressed and will be reported to the appropriate character and fitness committee, potentially becoming “an issue” in the admission process.
More serious charges can result, inter alia, in the striking of an answer, nullification of the exam entirely, as well as disqualification from retaking the exam for as long as 6 years.
The Board commences these matters by sending the applicant a Notice of Charges that must be responded to within 30 days from the date of the letter. Notably, the Notice of Charges does not normally provide any usable specific facts. Usually, it simply alleges that the applicant violated a certain rule on a specific day by engaging in certain conduct. For example, it may state that “on July 22, while taking the MBE, you possessed a restricted electronic device,” or that “on July 21, while taking the New York portion, you copied answers from the applicant in seat number 12345.”
The Notice does not usually provide details, nor does it usually present or summarize evidence. The Board usually only does so after you submit your verified statement challenging all or a part of the Notice of Charges. This puts the applicant in a very precarious position, as they must declare a position without knowing what evidence there may be against them or how strong it is.
Moreover, this initial denial can be given a negative inference later on in the process, should the applicant decide to admit after reviewing the evidence. Responding to a Notice of Charges should not be taken lightly, as so much is riding on that initial action.
What follows the initial response depends upon the nature of the case. If contested, the applicant is allowed a hearing before the Board. If the evidence provided warrants a change of position, an applicant may submit a statement admitting all or some of the allegations.
Board matters are confidential; however, they will report negative outcomes to the appropriate New York character and fitness committee as well as the admission authorities in other states and foreign jurisdictions.
The lesson here is that Bar Exam matters are complex and not generally understood. Experienced counsel should be consulted because of this as well as the importance of the Exam to the test taker.
Chris McDonough, Esq.
New York Grievance Attorneys: Lawyers for Lawyers