Volume 34

Excess Confidentiality: Must Bar Examiners Defy Administrative Law and Judicial Transparency?

by Keith W. Rizzardi

In most regulated professions, a degree of transparency exists. When administrative agencies and boards issue licensing decisions, they comply with public records laws, open meetings laws, and on-the-record adjudication. The judicial branch, including the courts and organized state bar entities, also engages in transparency by publishing opinions and agendas, holding public meetings and hearings, and allowing access to records. These transparency tools allow citizens to become reasonably informed about the actions of its government officials. Yet when it comes to the bar examiners who regulate licenses and admission to the legal profession—the administrative agencies within the judiciary—an excessively broad doctrine of confidentiality applies.

Considering the laws and actions of all fifty states, this article contrasts the confidentiality rules used by the state bar examiners with many other laws governing transparency for administrative agencies and the judiciary. Although every state embraces the theory of judicial transparency, in practice, the bar examiners often defy transparency and operate in secrecy. Florida arguably ranks as the worst offender because, despite a clear constitutional expectation of judicial transparency, it declares all its meetings and documents wholly confidential. Conversely, Texas operates in a more transparent manner, allowing for open meetings and access to agendas and public records.

Reasonable arguments exist to support some degree of confidentiality, especially on matters associated with the integrity of bar examination questions and personal applicant privacy. Otherwise, the agents of the judiciary should adhere to the laws that govern the judiciary. The bar examiners can and should affirmatively provide information, respond to public record requests, and permit public comment or participation in the decision-making process.

Bar examiners, in their efforts to govern and protect the public, demand candor and full disclosure from applicants. Applicants and the public can rightly demand reciprocity and a degree of candor and partial disclosure from the bar examiners. State judiciaries should order the bar examiners to reform their confidentiality and transparency rules to conform with administrative law, judicial transparency, notions of ethics and professionalism, and our foundational constitutional principles.

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