Sept. 27, 2010 – The State Bar of Wisconsin’s Board of Governors voted 32-6 to oppose a petition submitted by 71 Wisconsin attorneys that would expand Wisconsin’s diploma privilege to out-of-state law school graduates or repeal it altogether. The board made that decision Saturday at its Sept. 24-25 meeting in Minocqua.

Despite lengthy debate, the board was not convinced that changing the diploma privilege rule was in the public’s best interest and voiced confidence in the current system.

Kevin Kelly, assistant dean for curricular affairs at the University of Wisconsin Law School, and Daniel Blinka, a Marquette University Law School professor and member of the Board of Bar Examiners, each made presentations and asked the board to oppose the petition.

“One of the principle weaknesses in the petition is the thought that by eliminating three words in the supreme court rules, we can very easily and without trouble open the door to all 197 accredited law schools in the United States and Puerto Rico,” Blinka said. “That’s problematic on many levels.”

“The rule as written has worked for the citizens of this state for a long time, and we have to be really careful before we start changing things without asking why we’re changing them,” Kelly said. Kelly also explained that a diploma does not automatically qualify students for the diploma privilege, unless they have met the course requirements of the rule.

The Wisconsin Supreme Court will hear public comments Sept. 30 on the petition.

The board also discussed issues relating to trust accounting, lawyer discipline, the unauthorized practice of law, and conditional admission.

Subcommittees formed on Friday to strategize Board policy, bylaw revisions, challenges to the profession, and governance. State Bar President James Boll implemented the subcommittee process as way to give governors the opportunity to work in smaller groups on issues impacting State Bar operations and the legal profession.

Diploma Privilege

Daniel Blinka, a Marquette University Law School professor and member of the Board of Bar Examiners, asked the board to oppose the diploma privilege petition.

“We as an organization should embrace the status quo and revel in all the benefits it has produced on the quality of legal work in Wisconsin,” said District 9 Governor Frank Remington, who opposed the diploma privilege petition and wrote the motion in opposition to it.

Unlike the majority, District 2 Governor Nate Cade was one of six governors who supported the petition, stating that requiring a bar exam for everyone, even graduates of Wisconsin law schools, is a “means of protecting folks from someone who is not competent” to practice law.

Board members broke into groups for subcommittee work on various issues impacting State Bar operations and the legal profession.

District 2 Governor Carmen Ortiz-Babilonia (right) and District 2 Governor Athenee Lucas (left) sift through board materials before a vote.

For more photos from the Board of Governors meeting, visit the State Bar's Facebook page or click here.

Citing the current rule as discriminatory, former State Bar President and current District 9 Governor Steve Levine’s petition asks the court to remove the words “in this state” from Wisconsin Supreme Court Rule (SCR) 40.03, which allows graduates of Wisconsin law schools to become licensed in the state without taking the bar examination. Wisconsin is the only state that still allows admission by diploma privilege.

Such a change would allow graduates of ABA-accredited law schools to become licensed in Wisconsin without taking a bar examination. In the alternative, Levine asks the court to abolish the rule and require law graduates of Wisconsin law schools to take the exam.

In his presentation, Marquette Law Professor and a BBE member Daniel Blinka said, “the Board of Bar Examiners is in strong agreement that there is no reason, compelling or otherwise stated in the petition or in supporting materials, for revoking the diploma privilege.”

District 9 Governor Frank Remington moved to oppose the diploma privilege petition, but some governors debated whether the State Bar should take a position at all.

The motion reads: “The State Bar opposes the petition to amend or repeal SCR 40.03. To that end, the State Bar of Wisconsin recognizes the benefits of the teaching of Wisconsin-specific law at the state’s two law schools which better prepares graduates for the practice of law in Wisconsin. Accordingly, the State Bar supports continuation of the diploma privilege, which will continue the tradition of ensuring the teaching of Wisconsin law in law school.”

“The motion implies that that there is some uniformity among our members, and I think that’s not the case,” said District 9 Governor Brian Anderson. “Because of the divisiveness within the bar, the board should not take a position on the diploma privilege issue.”

District 2 Governor Nate Cade is concerned that the diploma privilege allows Wisconsin graduates to practice law within the state, even though it’s likely not all of them would pass the bar exam if required to take one.

The majority of board members opposed the petition, which cites discrimination as a primary reason to abolish or repeal the diploma privilege. Many governors, and the law school presenters, were also hesitant to change the status quo.

“I don’t know why one would, in the face of 100 years of success of the diploma privilege, abolish the rule as practiced unless there is some showing that it doesn’t work,” U.W. law school Assistant Dean Kevin Kelly said in his presentation to the board.

Remington said the State Bar should embrace the current system and emphasized the important role that Wisconsin law schools play in teaching state-specific law.

“The thrust of the motion is to support the Wisconsin law schools’ teaching of Wisconsin law. That’s the most important thing that we can do as a bar association,” Remington said.

The supreme court will take public comments on the issue Sept. 30 at 9:30 a.m.

Cost assessments in the lawyer regulation system

After a presentation by Professional Ethics Committee Chair Dean Dietrich, the board voted unanimously to support the committee’s recommendation regarding cost assessments in the lawyer regulation system.

Specifically, the board authorized State Bar representatives to appear at an Oct. 4 supreme court hearing to review Order 05-01, issued in 2006. The order amended SCR 22.24, which deals with cost assessments in lawyer discipline cases.

State Bar representatives will ask the court to change the rule so that a referee can make recommendations on cost assessment and apportionment of costs involved, and give a lawyer subject to discipline an opportunity to respond to such recommendations.

The Ethics Committee proposes the change to allow referee recommendations with the argument that a referee is fully aware of how the case was prosecuted by the Office of Lawyer Regulation. Other governors with knowledge of the process agreed.

“The referee is in the best position to make a decision as to what costs should be imposed,” said District 2 Governor Raymond Dall’Osto. Dall’Ostro also supported the Ethics Committee recommendation based on “constitutional principles” and “fundamental fairness.”

Unauthorized practice of law

At the request of Past President Doug Kammer, the board took a policy position on further State Bar advocacy regarding the unauthorized practice of law (UPL).

The board adopted the following policy language: “The State Bar of Wisconsin believes that unqualified, untrained, and unlicensed persons who engage in the unauthorized practice of law are harmful to consumers of services in Wisconsin. The Board of Governors supports any efforts to give meaningful enforcement to unauthorized practice of law statutes and rules or that affords the victims of the unauthorized practice of law a means of redress for any damages caused.”

The State Bar petitioned the supreme court in 2007 seeking to protect Wisconsin consumers from the unauthorized practice of law. In July, the court issued its final version of the rule, effective Jan. 1, 2010. The court’s adoption of the new rule creates a specific definition in supreme court rules of what constitutes the practice of law in Wisconsin.

But the rule does not contain any of several options the State Bar had presented to the court for enforcement. Kammer asked the board to take a position for further advocacy on the UPL issue.

Trust account rule

The board discussed a proposed change to the trust accounting rule submitted by the Wisconsin Association of Legal Administrators (WALA).

WALA has proposed changes to trust account rule SCR 20:1.15 to allow electronic fund transfers between credit card trust and IOLTA accounts, which it currently does not allow. However, after a presentation by Ethics Committee Chair Dean Dietrich, the board did not take action on the WALA proposal at this time.

In May, the supreme court adopted amendments to SCR 20:1.15 by Order 06-04A, effective Jan. 1, 2011. But the amendments are subject to revision if comments are submitted before the new rules take effect. The WALA filed a letter with the supreme court, proposing an amendment to allow electronic fund transfers. OLR opposes such a change on the ground that electronic transfers are not sufficiently documented by independent banking records.

Dietrich explained that the State Bar will revisit the issue in the future when banks develop better record keeping methods for electronic transfers.

“The Office of Lawyer Regulation wants independent verification of those transactions and transfers in order to show if there has been an inappropriate use of those monies,” Dietrich said. Dietrich also said he and others are committed to revisiting the trust account rules when electronic record keeping is more fully developed and perfected by banks.

District 7 Governor William Curran deferred to Dietrich’s wisdom on the issue, but hopes that the "burden" will be lifted sooner than later.

“To describe what is being required of firms as an inconvenience minimizes it,” Curran said, referring to the inability of firms and lawyers to transfer funds electronically. “I think it’s a huge burden, and I can’t wait until we get this independent bank records business progressed to the point that we are not suffering this burden anymore.”

Conditional admission 

WisLAP Coordinator Linda Albert updated the board regarding the Board of Bar Examiners’ (BBE) amended petition 08-13 to create SCR 40.075 relating to conditional admission to the bar.

The conditional admission rule, under the amended petition submitted, would allow applicants who have faced chemical dependency issues or mental illness to be conditionally admitted if certain requirements are met.

The State Bar’s WisLAP Committee and the BBE Review Committee will review the new version of the petition and make recommendations to the board for action in December. The supreme court is holding a hearing on the petition in January.

Other items

• The board moved to closed session for a briefing on the recently decided case of Kingstad, et al. v. State Bar of Wisconsin, No. 09-4080.

• The board approved the appointment of attorney Grant Birtch to the State Bar’s separate Audit Committee, which was created by board action in March 2007. Birtch replaces attorney Tom Hornig, who resigned in June.

• The board approved the appointment of attorney Christine Rew Barden to complete the term of District 9 Governor Sue Collins, who was elected chairperson of the Board of Governors.

• The board approved President Boll’s appointments to the Nomination Committee for the April 2011 election. Boll appointed Mike Kernats (chair), Steven Levine, Jill Kastner, Marla Stephens, and Johanna Kirk.

• The board voted to implement procedures for the special election to fill the State Bar’s vacant American Bar Association delegate seat. The former delegate, Richard Podell, resigned.