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

Excess Confidentiality: Must Bar Examiners Defy
Administrative Law and Judicial Transparency?
KEITH W. RIZZARDI*
ABSTRACT
In most regulated professions, a degree of transparency exists. When adminis-
trative 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 exces-
sively 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 gov-
erning transparency for administrative agencies and the judiciary. Although ev-
ery 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 confiden-
tial. 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, espe-
cially 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.
* Keith W. Rizzardi is a Professor of Law at St. Thomas University School of Law, where he teaches and
writes about professional responsibility, civil procedure, and administrative and environmental law. A member
of the Florida Bar, he has served on its Standing Committee on Professionalism and the Professional Ethics
Committee, and he earned Board Certification in State and Federal Government and Administrative Practice.
The author thanks his legal research assistants at St. Thomas University, including Dean Ibrahim (for his metic-
ulous state-by-state research efforts) and Layla Nguyen and Keith Thomson (for their diligent public records
requests and record keeping efforts). The author also thanks the Georgetown University law student editors at
the GJLE, particularly Megan Lipsky and Olivia O’Hea, whose questions, editorial scrutiny, and suggestions
dramatically improved this article. © 2021, Keith Rizzardi.
423
Bar examiners, in their efforts to govern and protect the public, demand can-
dor 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 con-
fidentiality and transparency rules to conform with administrative law, judicial
transparency, notions of ethics and professionalism, and our foundational con-
stitutional principles.
TABLE OF CONTENTS
INTRODUCTION: REGULATING WITHOUT PUBLIC SCRUTINY. . . . . . . 426
I. THE POWER OF THE BAR EXAMINERS AS A JUDICIAL AGENCY 431
A. BAR APPLICANTS AND SENSITIVE INFORMATION . . . . . . 432
B. CONFIDENTIALITY RULES IN THE FIFTY STATES . . . . . . . 434
C. BUDGETS, POLICIES, AND THE CONDUCT OF PUBLIC
BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
II. LIMITING AGENCY POWER THROUGH TRANSPARENCY . . . . . . 442
A. FOUNDATIONAL CONSTITUTIONAL PRINCIPLES AND THE
INFORMED PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
B. TRANSPARENCY PRINCIPLES FROM ADMINISTRATIVE
AGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
1. CONCEPTS OF OPEN GOVERNMENT . . . . . . . . . . . . . . . . . . . 445
2. CONCEPTS OF ADMINISTRATIVE PROCEDURE. . . . . . . . . . . . . 448
C. TRANSPARENCY PRINCIPLES FROM THE JUDICIARY . . . . 451
1. JUDICIAL LAWS REGARDING OPEN GOVERNMENT . . . . . . . . . 453
2. ETHICAL RULES OF CONFIDENTIALITY. . . . . . . . . . . . . . . . . 456
3. PROFESSIONALISM LIMITS AND EXPECTATIONS . . . . . . . . . . . 458
4. THE INFORMED CITIZEN AND THE PRESS . . . . . . . . . . . . . . . 459
III. BALANCING CONFIDENTIALITY AND TRANSPARENCY . . . . . . . 462
A. JUDICIAL INTROSPECTION (OR LEGISLATIVE
INVESTIGATION). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
B. LEARNING FROM TRANSPARENCY LEADERS . . . . . . . . . . 466
424 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:423
1. INFORMING THE PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . 466
2. ANSWERING THE PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . 468
3. ENGAGING THE PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . 470
C. REWRITE THE CONFIDENTIALITY RULES . . . . . . . . . . . . . 471
CONCLUSION: RECIPROCAL CANDOR . . . . . . . . . . . . . . . . . . . . . . . . 472
APPENDIX I: STATE-BY-STATE SUMMARY OF JUDICIAL AND BAR
EXAMINER TRANSPARENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
APPENDIX II: A PROPOSED ORDER FOR THE SUPREME COURT OF
FLORIDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
APPENDIX III: JUDICIAL TRANSPARENCY AND BAR EXAMINER
CONFIDENTIALITY IN THE UNITED STATES . . . . . . . . . . . . . . . . . . . . 479
2021] EXCESS CONFIDENTIALITY 425

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT