Court set to act on diploma privilege petition on Oct. 4
By Tom Solberg, State Bar of
Wisconsin Media Relations Coordinator
Oct. 1, 2010 – The fate of a petition asking the Wisconsin
Supreme Court to amend or repeal its diploma privilege rule will be
determined by the court on Monday, Oct. 4.
The court scheduled the vote after listening to a half-day of
testimony on petition
09-09 at a public hearing on Thursday, Sept. 30. The petition
proposes that the diploma privilege either be extended to graduates of
all ABA-approved law schools for a 10-year trial period or be eliminated
entirely.
Wisconsin Supreme Court Rule (SCR) 40.03
allows most graduates of the Marquette University and U.W. law schools
to be licensed in the state without taking the bar examination.
Wisconsin is the only state that still allows admission by diploma
privilege.
Levine argues for petition
Former State Bar President Steven Levine represented the views of 70
attorneys who joined in the petition (some supported only one of the two
options it proposes). Levine termed the current structure of the diploma
privilege “unfair and discriminatory” and explained that the
goal of extending it to graduates of law schools outside Wisconsin
“is to remove from them the heavy burden in terms of the financial
cost of preparing for the bar exam, months of study time involved,
stress and pressure on personal and family life, and disadvantage in
searching for employment because of their bar exam.”
The petition, filed in September 2009, argues that “the quality
of American Bar Association-approved law schools located outside
Wisconsin is as high as those located in Wisconsin.”
Levine stressed in his testimony that the petition proposes a 10-year
trial period “to see if it can work.” If the concept proves
unworkable (for example, increased complaints about graduates of
out-of-state law schools), Levine told the court that it can then
“decide to move in other directions.” He suggested that
fears voiced by critics of the petition that Wisconsin may be
“invaded by a flood of lawyers who have failed bar exams in other
states” can be addressed by adopting another rule disqualifying
them from the diploma privilege.
Levine also warned that the percentage of State Bar members who
graduated from out-of-state schools is growing from the current 37.5
percent and could reach 50 percent. “As this demographic continues
to change, support for a diploma privilege limited to U.W. and Marquette
graduates might prove to be unsustainable unless the base of support for
the diploma privilege is broadened by extending it to graduates of other
ABA-approved law schools.”
Boll reports Board of Governor’s opposition to petition
State Bar President James Boll, Board of Bar Examiners (BBE) Director
Jacquelynn Rothstein, representatives of the Marquette University and
U.W. law schools, and others asked the court to reject the petition.
Boll reported to the court that, at its Sept. 25 meeting in Minocqua,
the State Bar’s Board of Governors voted 32-6 (with 2 abstentions)
to adopt the following motion affirming the State Bar’s continued
support for Wisconsin’s diploma privilege.
“The State Bar of Wisconsin 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.”
Boll told the court that the board voted on the matter after hearing
from Prof. Dan Blinka from Marquette University Law School and from
Kevin Kelly, the Assistant Dean for Curriculum at the U.W. Law School,
who stressed the emphasis the two Wisconsin law schools place on
incorporating Wisconsin law into coursework. Boll cautioned that
extending the diploma privilege to other ABA-approved law schools would
pose potentially insurmountable logistical and administrative problems
if the BBE were required to track the curricula of 200-plus law schools
across the nation.
He added that several governors had voiced support for including a
greater emphasis on Wisconsin law in both the bar exam administered by
the BBE and law school curricula. While acknowledging that the board
position is not unanimous, Boll concluded that most members believe the
current system has worked well for more than 100 years and continues to
serve the interests of Wisconsin’s legal profession and the
clients they serve.
Others warn against adoption of rule in its current form
BBE Director Rothstein told the court that the agency does not
support the petition and reminded the justices that a BBE subcommittee
has been formed to review the general issue of bar admission, including
the bar exam. In response to a question, she said that this review will
include consideration of the Uniform Bar Examination (UBE), which has
been adopted by two states (Missouri and North Dakota) and is under
discussion in several others. She noted that Levine serves on this
subcommittee.
Rothstein asked the court to include a delayed effective date if the
petition is adopted to allow the BBE time to implement it. Critical
logistical and administrative steps would include developing procedures
to scrutinize transcripts, finding larger exam venues, funding higher
costs for grading and similar activities, and taking other steps to
ensure “the essential pieces are in place.”
U.W. Law School Dean Kenneth Davis expressed the school’s
continued strong support for the diploma privilege, based on the
experience faculty has had with it over the years. He is not impressed
by the argument that Wisconsin is the sole remaining state allowing the
practice and suggested that other states should reconsider it and make
it available. He cautioned that ABA-approved law schools do not produce
uniformly qualified graduates and noted that some award diplomas to
students who scored low on LSATs.
Joseph Kearney, Dean of the Marquette University Law School,
characterized the petition as “destabilizing” and a
distraction from other, more pressing issues (for example, access to
justice). He asked the court to deny the petition for two basic reasons:
1) there is no evidence that the diploma privilege has had adverse
impacts; and 2) there are, in fact, important differences between
Wisconsin law schools and other ABA-approved schools.
The court’s review of the petition had been delayed by a
federal lawsuit (Wiesmueller v.
Kosobucki, 08-2527) brought by attorney Christopher Wiesmueller of
Waukesha. That matter was resolved
by a March 2010 settlement reached between the state and
Wiesmueller.
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