Diploma privilege rule won’t change, Wisconsin Supreme Court unanimously decides

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 4, 2010 – The diploma privilege rule that allows most graduates of Wisconsin law schools to become licensed in the state without taking a bar examination will not be changed, the Wisconsin Supreme Court decided today at its administrative conference.

On a motion by Justice David Prosser, the court voted unanimously to deny petition 09-09 filed by former State Bar of Wisconsin President Steven Levine and 70 other attorneys that would have extended the diploma privilege to graduates of all 197 ABA-approved law schools or repeal it entirely.

Instead, Wisconsin Supreme Court Rule (SCR) 40.03 will not change, meaning most graduates of both Marquette Law School and the University of Wisconsin Law School won’t need a bar exam to become licensed in Wisconsin, while graduates of all other law schools will.

Graduates of Wisconsin law schools only 

In deciding not to extend the diploma privilege to graduates of law schools outside the state, Chief Justice Shirley Abrahamson expressed her confidence in the quality of both Wisconsin schools but said the quality and grading systems of other law schools across the country are different.

“I just don’t want to see the churning out of students that can automatically get into a particular bar,” Abrahamson told her colleagues.

Justice Michael Gableman said that Wisconsin law schools are providing a lot of “time, effort, and quality instruction in the topics of Wisconsin-centered and Wisconsin-focused law, sufficient to provide a rational basis and a very good justification for the diploma privilege.”

The diploma privilege has “served the two law schools and the graduates of those law schools well for a long time, and I heard nothing that would justify us in changing things at this point,” Justice N. Patrick Crooks added.

Justice Ann Walsh Bradley mentioned the close relationship between the court and both “high quality” law schools in Wisconsin in terms of teaching content and the ability of the court to “be on the ground and see what’s going on” at the schools.

No bar exam for all 

Abrahamson and the other justices also rejected the proposal that all students should be forced to take a bar examination, even ones graduating from Wisconsin law schools.

“I am not convinced that the bar exam has a relationship to being a good practitioner,” Abrahamson said. “I am not sure that getting a law degree, and how well you do in law school, are necessarily related to practice.”

Abrahamson was confident that Wisconsin law schools teach law students how to “think, how to research and how to find the law” but questioned whether all law schools around the country do the same given different levels of quality and different grading systems.

At the same time, Abrahamson questioned whether the Wisconsin bar exam is the best way to give lawyers opportunities across borders.

“We will have to keep looking at this whole issue of what kind of bar exam is best for both protecting our citizens against incompetent lawyers and also allowing competent lawyers from across the country to practice in the state with appropriate regulation,” Abrahamson said.

Abrahamson urged the Board of Bar Examiners to look at a Uniform Bar Examination that will allow lawyers to move more easily across state borders.

“I would make things simpler so lawyers can move across boundaries,” she said. “I would urge the BBE to look at a unified bar exam. I think it would simplify all of this for the people who want to practice, including the present lawyers who want to go to other states.”

The court’s ruling ends debate, for now, on whether the diploma privilege unfairly discriminates against out-of-state law school graduates, as argued by the petitioners. But Abrahamson said she hoped Levine “brings back this petition periodically” to keep the court on its toes.

The State Bar of Wisconsin’s Board of Governors voted to oppose the motion at its Sept. 24-25 board meeting, and State Bar President James Boll spoke on behalf of the board Oct. 1 at the supreme court’s public hearing on Levine’s petition.

Marquette Law School Dean Joseph Kearney and Kenneth Davis, outgoing Dean at U.W. Law School, also appeared in opposition to the motion, as did BBE Director Jacquelynn Rothstein.

Related stories:

Court set to act on diploma privilege petition on Oct. 4 – Oct. 1, 2010

Supreme court schedules diploma privilege debate for Sept. 30 – July 21, 2010 (InsideTrack)

Settlement retains diploma privilege – March 25, 2010

Crabb decertifies class challenging diploma privilege – Dec. 3, 2009

Crabb considers decertifying class challenging Wisconsin’s ‘diploma privilege’ – Nov. 5, 2009 (InsideTrack)

Petition filed with Wisconsin Supreme Court aims to extend ‘diploma privilege’ to out-of-state law school grads – Sept. 29, 2009 (InsideTrack)

Plaintiffs’ brief filed in challenge to Wisconsin’s ‘diploma privilege’ – Sept. 16, 2009 (InsideTrack)

Challenge to 'diploma privilege' reinstated by U.S. Court of Appeals – July 9, 2009 (InsideTrack)