July 21, 2010 – The Wisconsin Supreme Court may soon decide the fate of Wisconsin’s diploma privilege by ruling on a petition that seeks to amend the rule or abolish it completely.

Wisconsin Supreme Court Rule (SCR) 40.03 allows graduates of Wisconsin law schools to become licensed in the state without taking the bar examination. Wisconsin, the only state that still allows admission by diploma privilege, admitted 472 graduates by diploma privilege last year.

On Sept. 28, 2009, former State Bar president Steven Levine and 70 other attorneys filed petition 09-09, asking the supreme court to extend the diploma privilege to graduates of all ABA-approved law schools or to abolish the privilege entirely. Specifically, the petition would amend or repeal SCR 40.03.

On July 6, the supreme court scheduled debate on the petition. A public hearing with an open administrative conference is scheduled for 9:30 a.m. on Sept. 30, 2010.

Petitioners

SCR 40.03 states that an applicant “who has been awarded a first professional degree in law from a law school in this state that is fully, not provisionally, approved by the American bar association shall satisfy the legal competence requirement by presenting to the clerk certification of the board showing” at least 84 completed credit hours and other requirements.

The rule does not specifically require Wisconsin law schools to teach Wisconsin law. Instead, it sets 60- and 30-credit hour rules to ensure students get core classes in certain areas of law.

The petition asks the supreme court to remove the words “in this state” from SCR 40.03 and anywhere those words are used in the rule. Such a change would extend the diploma privilege to out-of-state law school graduates that meet the rule’s requirements. The petitioners argue that graduates of ABA-accredited law schools are competent based on the education they receive, regardless of whether the school teaches Wisconsin law.

“All ABA-approved law schools teach all aspects of an area of law – not merely the law of the state in which they are located,” Levine wrote in the petition. “The purpose of the Wisconsin Bar Exam is to test the applicant’s ability to think and to reason like a lawyer, not primarily to memorize Wisconsin law.”

The petitioners argue that the diploma privilege “is no longer necessary” to encourage law school attendance, and other ABA-accredited law schools rival the quality of Wisconsin law schools. Requiring outsiders to take a bar exam imposes significant financial and other burdens, the petitioners argue. In addition, the petitioners say the diploma privilege “discriminates against Wisconsin residents who may be unable to enroll in law schools located in Wisconsin.”

In the event that the supreme court is unwilling to amend the rule, the petitioners ask the court to repeal the diploma privilege in its entirety.

Brief history

The Wisconsin Legislature established the diploma privilege in 1870. Under this law, graduates of the law department of the University of Wisconsin enjoyed automatic admission to the bar. In 1933, the diploma privilege was extended to Marquette University Law School graduates.

According to Daniel J. Steininger, who wrote “The Diploma Privilege – Recent Developments” for the Wisconsin Bar Bulletin in 1974, the diploma privilege was created to attract lawyers that were flocking to Michigan. In its 140-year history, several challenges have failed to dispose of it.

In 1927, the supreme court refused to abandon the diploma privilege on recommendation of the Wisconsin Bar Association, as the organization was called then. In 1974, an Assembly Bill extending the diploma privilege to graduates of all law schools failed. Noting division among bar members in 1974, Steininger proposed a comprehensive report on the diploma privilege.

In 1988, the State Bar of Wisconsin appointed a special committee to study the diploma privilege with purpose of recommending its continuance or discontinuance to the Wisconsin Supreme Court. The committee recommended continuation of the diploma privilege, and the Board of Governors accepted the committee’s report in June of 1988.

Recently, a diploma privilege challenge surfaced in federal court. Led by Wisconsin attorney Chris Wiesmueller, who now supports petition 09-09, out-of-state law school graduates challenged the diploma privilege up to the U.S. Court of Appeals for the Seventh Circuit.

The plaintiffs argued that SCR 40.03 impermissibly discriminated against out-of-state graduates. The case settled in March, however, without a ruling on the merits.

Opponents

Protection of the public is a primary concern of those that oppose a rule allowing out-of-state graduates to become licensed in the state without a bar exam.

In a State Bar article published last year, James A. Morrison, chair of the Wisconsin Board of Bar Examiners, argued that testing applicants who attend law school out-of-state is important to gauge basic competency. But testing graduates of in-state law schools is unnecessary where the supreme court determines that an in-state education alone instills basic competency.

That is, the supreme court has more familiarity with in-state law schools and the the training and education they provide to students. That is not true of out-of-state law schools. The bar exam is simply “opportunity to protect the public,” Morrison said.

Comment period

The State Bar’s Board of Governors has not yet determined its position regarding petition 09-09. The State Bar’s Executive Committee may take this matter up at its meeting on Sept. 3, 2010.  State Bar members wishing to provide comments to the Executive Committee regarding this petition (either in support, opposition, or for modification) should send those comments to pubaffairs@wisbar.org no later than Monday, Aug. 23, 2010, and they will be forwarded to the Executive Committee for their consideration.