Sept. 29, 2009 – A petition filed on Sept. 25 with the Wisconsin Supreme Court aims to extend the “diploma privilege” to graduates of all ABA-approved law schools or abolish it entirely.
Petitioner Steven Levine, a past State Bar of Wisconsin president, and 70 other State Bar members seek to amend SCR 40.03, which exempts from a bar examination requirement those graduates of an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law. Among those State Bar members is Christopher Wiesmueller, the plaintiffs’ counsel in a federal class action lawsuit, Wiesmueller v. Kosobucki, 07-C-0211, challenging the constitutionality of the diploma privilege.
James A. Morrison, the chair of the Wisconsin Board of Bar Examiners, criticized Levine’s petition for overlooking the bar exam’s public protection purpose. Whereas the Wisconsin Supreme Court ensures the competency of UW and Marquette graduates to practice law through its involvement with those schools’ curriculums, the bar exam screens graduates of less familiar schools, he said.
The petition
Petitioners ask the supreme court to remove the words “in this state” wherever they appear in SCR 40.03 so that the diploma privilege would extend to all graduates of ABA-approved law schools. The court should then review the effects of the change after a 10-year trial period, the petition states.
In the alternative, the court should repeal SCR 40.03 entirely, the petition proposes. (Wiesmueller supports just the petition’s request to extend the diploma privilege to all graduates of ABA-approved law schools and not the proposed repeal.)
The Wisconsin Legislature established the diploma privilege in 1870 to encourage prospective lawyers to study at the UW Law School rather than enter the profession by an apprenticeship followed by a bar exam, the petition notes.
“Today the diploma privilege is no longer necessary as an incentive to encourage lawyers-to-be to attend law school,” the petition states. “All Wisconsin bar admission applicants are required to have attended law school as a prerequisite to admission to practice law in Wisconsin.”
Further, the petitioners argue, the quality of ABA-approved law schools located outside Wisconsin is as high as those located in Wisconsin. “In order to be accredited by the American Bar Association, these law schools meet the same requirements as do Marquette and UW,” Levine wrote in a memorandum in support of the petition.
“As indicated by the inclusion of the Multi-state Bar Exam and Multi-state Practice Exam in the Wisconsin Bar Exam, 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 petition continued.
Protecting the public
“My concern with Mr. Levine’s petition, as I understand it, is that he takes the position that if you graduated law school, you’re probably competent to practice law,” said Morrison.
While acknowledging many might agree with that sentiment, Morrison said that it is not necessarily true. As one who has graded the bar exam, Morrison said he has seen test answers that would convince him not to ever hire certain applicants as lawyers. Identifying those people is the entire purpose of the exam because the average person in need of legal services may be unable to tell a good lawyer from an incompetent one, he explained.
“This is our opportunity to protect the public,” Morrison said.
Graduates from Wisconsin’s ABA-accredited schools do not raise these same concerns because the Wisconsin Supreme Court has considerably more familiarity with them. For example, the court specifies elective and mandatory courses at those schools through SCR 40.03. Further, faculty representatives from the Wisconsin law schools are required to sit on the Board of Bar Examiners, Morrison said.
Petitioners criticized the bar exam for imposing “a substantial financial, time, pressure, family, and employment disadvantage burden” on out-of-state law school graduates.
But Morrison said that while studying for the bar exam can be very challenging, it is the only time in most legal careers to synthesize the areas of law ranging from torts to tax into a working knowledge. Morrison explained this exercise has a practical purpose because lawyers receive a general law license, creating the consumer’s expectation of a certain level of competency across all areas of a general legal education.
The petition and the lawsuit
Plaintiffs in the class action lawsuit challenging the constitutionality of the diploma privilege filed a brief this month in the U. S. District Court for the Western District of Wisconsin.
In their brief, the plaintiffs ask for summary judgment on the question of whether Wisconsin discriminates against interstate commerce when it requires an examination of graduates from out-of-state law schools in subject areas not particular to Wisconsin law. That is, the plaintiffs contest the rationale for administering only to them the Multistate Bar Examination (MBE), which tests areas of federal and common law.
In his memorandum supporting the petition, Levine picks up this line of argument. Asserting that no justification exists for exempting Wisconsin graduates from the examination requirement, Levine notes that ABA-approved law schools located outside Wisconsin “teach the same federal law course and courses based on uniform laws as do Marquette and UW” and that “UW Law School does not emphasize particular Wisconsin law in its courses, which are taught from national casebooks and materials.”
“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.
The petition puts a finer point on the lawsuit as well. Within the class of out-of-state law school graduates claiming discriminatory treatment on account of the diploma privilege, the petition identifies a subgroup. “The limitation of the diploma privilege to graduates of Wisconsin law schools discriminates against Wisconsin residents who may be unable to enroll in law schools located in Wisconsin because of those schools’ admission policies unrelated to academic performance, because of capacity limitations, or for other reasons,” the petition states.
Levine analogizes the discriminatory effect of the diploma privilege to the time when only UW – not Marquette – benefited from the diploma privilege. “In 1983, Marquette University Law School celebrated the 50th anniversary of its achieving equality with the UW Law School in bar admission requirements,” Levine wrote. “Now graduates of ABA-approved law schools located outside Wisconsin seek elimination of the last vestiges of discrimination in Wisconsin bar admission by requesting that the diploma privilege requirements for bar admission be extended to them.”
Alex De Grand is the legal writer for the State Bar of Wisconsin.
