Wisconsin Lawyer
Vol. 79, No. 12, December 2006

Letters

Maintain Diploma Privilege, Abandon Bar Exam

I strongly disagree with Mr. Levine's opinion that the diploma privilege should be abandoned.

As a trial attorney with over 25 years' experience, I agree with the general sentiment of his statement in the November president's column that, "… most lawyers who have passed the bar exam will tell you that the bar exam bears little if any relationship to a lawyers' ability to practice law."

Wisconsin has a long history of substantive approach to ensure access to the legal process. This is good for parties and attorneys. Our courts allow for pro hac representation and even nonlawyer representation in certain administrative proceedings. Other states' courts recognize Wisconsin attorneys. The bar exam may provide a measure of qualification to practice, but so does graduation from an accredited law school (especially, Wisconsin's two great law schools). Our law schools are already reviewed for quality and standards. Law school and the bar exam are only the beginning of a career in the profession and mentoring is a better way to ensure quality than is an exam.

Diploma privilege has nothing to do with discrimination. Your analogy to race discrimination does not relate. Maybe the diploma privilege properly exists to influence highly educated graduates of the U.W. and Marquette law schools to stay in Wisconsin. The imposition of a bar exam is merely an arbitrary impediment to persons who want to become lawyers.

Finally, this is not a pressing issue the State Bar needs to address. There are many more significant and pressing issues that our resources could better be used to address, like providing legal services to indigent parties and educating the public about the law and legal process.

I request that you forward my comments to the study committee.

Kevin J. Killeen,
Janesville

There Can Be No Analogy between Racial Segregation and Diploma Privilege

In the November Wisconsin Lawyer, State Bar President Steve Levine outlined his position on the Wisconsin diploma privilege. Generally, the president has the right and the obligation to set forth his or her thoughts in the President's Message column. Members often respond, sometimes in agreement, sometimes not. Typically, past presidents do not respond, seeing it as inappropriate to jump into the fray. We've had our say; we've served our term. It might even be bad form for a past president to criticize so publicly the current president.

Before I sat down to write this letter, I thought long and hard. I was concerned that it might not be appropriate for me to comment on President Levine's November message. But I decided to do it anyway, because my public response may be the only way to shock the president into understanding the degree to which his "analogy" was offensive.

Let me state immediately that I am not writing to weigh in on the diploma privilege. I am writing solely to tell the president that there is no analogy between the racial segregation practiced in this country and the examination of lawyers who did not graduate from one of the two law schools in Wisconsin. His argument fails as a false analogy. His linking these issues so that he could, in the heat of debate, suggest that anyone who disagrees with him would also be willing to accept "separate but equal" is nothing more than an immature debate tactic.

More to my point, however, is that to equate racial segregation and discrimination with a regulatory process for all, simply for "shock value," is insensitive and does, in fact, denigrate the experiences of people subjected to racial segregation and discrimination. The fact that he gave great thought to the inappropriateness of making such an analogy, but chose to proceed, only adds insult to injury.

Michelle Behnke, State Bar past-president,
Madison

Privilege Comparison is Insulting

I read Mr. Levine's November article entitled "Separate but Equal in Wisconsin" with a combination of disgust and anger. How the State Bar president can insult such a large percentage of the Bar and make such ludicrous arguments is beyond me. I found nothing of merit in the article, but there are two things that I found particularly offensive.

First, Mr. Levine compares the diploma privilege to segregation. For a minute, let's ignore the fact that he is comparing our State Bar's policy of 100-plus years to the darkest days of this nation's history. Unlike those who lived under segregation or apartheid, those in the legal profession are in a profession of privilege. Students today are spending $100,000-plus to go to law school.

Furthermore, students have a choice of where they want to go to school. If students want to go to a Wisconsin school, that is their choice. If students want to go to another school, but practice in Wisconsin, that is their choice. If lawyers practicing in other states want to come to Wisconsin, that is their choice. With all of these situations, the people involved are intelligent enough to make their own decisions and be aware of the ramifications with regard to taking or not taking the bar exam. Unlike people who were and are discriminated against because of the color of their skin, all the lawyers and law students out there have a choice. How can Mr. Levine possibly compare the diploma privilege to segregation or apartheid? There is no justification for making this absurd comparison.

Second, Mr. Levine's opinions insult the quality of the education provided at the Marquette and U.W. law schools. The diploma privilege is not a "free pass" that simply allows anyone who pays their tuition to start practicing law in Wisconsin. Students must meet strict character and fitness requirements, take certain classes that are not required at out-of-state law schools, and maintain a certain grade point average. During my relatively short time in law, the lawyers graduated from Marquette and U.W. are among the best I have met - and I have worked with many lawyers from across the country.

Contrary to Mr. Levine's assertions, Wisconsin has been ahead of the game with respect to the diploma privilege. Any student graduating from an ABA-approved law school should be able to start practicing immediately; and if they can't, it is the law school that has not done its job properly.

Bar exams are arbitrary and ineffective measures of a person's competence to practice law. More states should follow Wisconsin's lead.

Mr. Levine and the Wisconsin Lawyer owe the Wisconsin bar an apology for publishing this insulting article.

Mark Lee Snell,
Eagan, Minn.

Response: I appreciate your taking the time to express your views, even though we appear to disagree. The only way I learn is to listen and consider the views of others, so thank you. And thanks to everyone who took the time to contact me with your thoughtful and considered viewpoints.

Steve Levine, State Bar president,
Madison

Use Political System for Change

I want to commend President Levine for his message "Changing the Bar" in the September issue. Finally, a substantive communication from a bar president discussing, and attempting to resolve, his tremendous dissatisfaction with the Bar.

The Bar is, and will be, unable to reform itself. Ninety full-time positions work at the Bar to provide "member services." Compare this with 31 at the Office of Lawyer Regulation and nine at the Board of Bar Examiners - the offices which actually regulate and license attorneys. No entrenched employment agency such as the Bar is going to work for meaningful reform.

As for the board of governors, the direction of the board is already evident on a mandatory bar. Currently a referendum on the issue of a voluntary bar has been put on hold so that a study can be completed as to the impact of a voluntary bar. There is no reason a referendum cannot take place now while the Bar prepares instead a business plan on how to operate and succeed as a voluntary bar. But a study will provide some stall time and paint a dandy gloom and doom scenario. One need only look at the disastrous leadership on the WisTAF assessment to see where this is going.

Given the expanding legislative role assumed by the court, in particular by the chief justice, expect no reform here. The Bar has become a captive bureaucracy and revenue source for the court, unable as it is to secure enough otherwise through the democratic process, much less constitutionally. Does anyone think that the court will do anything but fight to continue the status quo, undermine reform, or as demonstrated by the illegal WisTAF assessment, pursue even more outrageous initiatives?

Of the three avenues for change suggested by Mr. Levine, I believe only one, the political system, is viable. Possible actions might include these: A constitutional amendment removing the regulation of attorneys to the executive branch as well as clarification of the obvious for the court that its jurisdiction is limited to the courts. The regulation of attorneys by the Department of Regulation and Licensing, free of the court. Legislation prohibiting a mandatory bar. A legislative audit exposing the expanding extra-constitutional role of the court, particularly as regards taxation and social services. Legislation that curtails the appointment power of the chief justice and guides her back to a role of hearing and deciding cases. Contacts with the Legislature's attorneys, Sen. Grothman and Rep. Gundrum, who might be none too happy to realize WisTAF has had them supporting the ACLU, often on matters unrelated to legal services to the poor, for years. A bar and judicial reform package accompanying the eventual legislation addressing the legislative decisions of the court this year. The list is hardly exhaustive.

Any changes President Levine is able to effectuate before the return to business as usual with the next president is greatly appreciated. In reality, however, the only meaningful reform is going to come when those dissatisfied with the Bar bypass the Bar and court, and instead work directly with the Legislature.

Mark Schlei,
Madison

Wisconsin Lawyer