Wisconsin Lawyer
Vol. 84, No. 2, February 2011

Executive Committee Did Not Take Position on Diploma Privilege

The December 2010 Wisconsin Lawyer contained a letter from past president Steve Levine concerning his petition asking the Wisconsin Supreme Court to extend the diploma privilege to graduates of non-Wisconsin law schools. In his letter, Mr. Levine stated that, at the Sept. 3, 2010, meeting of the Bar’s Executive Committee, six members said that each “could not support extension of the diploma privilege to graduates of other law schools, because it would result in more economic competition for ‘Wisconsin’ lawyers.”

Mr. Levine attended the Executive Committee meeting as a guest and spoke briefly in support of his petition. However, the Executive Committee neither debated the merits of the petition nor took any position on it; rather, the Executive Committee simply voted (unanimously, with 13 of the 14 members attending and voting) to place the issue on the Board of Governors’ Sept. 24-25, 2010, meeting agenda.

At its meeting, the Board of Governors voted 32 to 6 (with 2 abstentions) to oppose the petition, stating specifically that “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.”
Any assertion that the Executive Committee took any position on the petition is inaccurate.

The Executive Committee of the Board of Governors: James C. Boll, James M. Brennan, Susan L. Collins, William T. Curran, Charles E. Hanson, Margaret W. Hickey, Douglas W. Kammer, Charles “Mike” Kernats, Gordon G. Kirsten, Kevin G. Klein, Kelly C. Nickel, Robert W. Swain, Paul G. Swanson, and Nicholas J. Vivian

Diploma Privilege as Seen from Outside Wisconsin

It is rather amusing to see all the ink expended in defense of the diploma privilege. I wonder if those defending the privilege consider the viewpoint of the legal community outside Wisconsin? I am surprised how often this issue is mentioned when I deal with lawyers from other states. They laugh about the diploma privilege, because they view it as a form of provincial protectionism.

There are two common threads in these conversations. The first is that the diploma privilege is maintained to avoid the embarrassment of Wisconsin and Marquette grads failing the bar exam in greater numbers than those who graduated from out-of-state law schools. The second thread is that by emphasizing Wisconsin law in the curriculum, Wisconsin and Marquette lawyers set themselves apart in an atmosphere of quaint nostalgia, rather like the Amish; they could ill function in the real world. When this issue comes up, I quickly point out that I attended law school outside Wisconsin and had to take the bar. Given the low failure rate for the bar exam, I cannot comprehend why the privilege exists at all.

Atty. Peter M. Farb, Appleton

Bar Exam for Everyone or No One

Every time I think about the recent decision upholding the diploma privilege my blood pressure jumps and I begin channeling the self-righteous anger of Col. Nathan Jessup (“You can’t handle the truth!”). For the privilege to be perpetuated by an organization dedicated to justice is nothing short of a mockery.

Anyone who did not have to take the bar exam after law school simply cannot appreciate the huge obstacle it represents or the extreme stress it produces. Nothing in one’s prior academic life really prepares a person to take a two-day exam, particularly one on a subject as vast and nuanced as “the law.” It’s roughly the equivalent of rolling every final exam of every course you took in law school – and some you didn’t – into a single, 12-hour test, and then having to travel to Madison to take it. And the stakes of this road trip from hell couldn’t be higher: fail, which one in four did when I took the exam, and you cannot practice for at least six more months, during which time mouths still need to be fed and bills, including your mortgage-sized student loans, still need to be paid. So, before the ink on your J.D. even dries, you are effectively forced to spend your first summer after law school and thousands of dollars that you don’t have on a bar review course to re-master legal labyrinths (rule against perpetuities, anyone?) that you may not have thought about in two years and which, depending on your practice area, you may never need to know again. It’s brutal.

Because it is so brutal, though, passing the bar exam is a serious achievement. Indeed, in a life marked by some fairly impressive academic accomplishments, passing the bar exam is easily the one of which I am most proud.

It is particularly infuriating and insulting, therefore, when people who did not have to pass the bar themselves – many of whom consciously avoided it, by the way, even as they regularly patronized every other bar in Madison or Milwaukee – decide that the exam remains an appropriate ordeal for others. It is roughly the equivalent of mocking the labors of a marathoner from the comfort of one’s own couch.

Reasonable people can disagree about whether the bar exam serves a substantive purpose or not – and I think it does, if only in demonstrating one’s intellectual dexterity and intestinal fortitude. The fact remains, though, that the bar exam is a hurdle that every would-be lawyer in every other state is required to clear, and one which is really no different than the litmus tests that society, and indeed Wisconsin, requires of nearly every other professional aspiring to the title. Moreover, while I graduated from Minnesota, I also took a couple of classes at Marquette along the way. In my experience, law school is law school. So if the bar exam serves a purpose for anyone, it serves a purpose for everyone. For Wisconsin’s bar and its highest court to ignore this basic principal of fairness is infuriating.

Atty. Chris Geary, Mt. Pleasant

Neither Lincoln nor Grant Filed for Bankruptcy

Theresa Laughlin’s review in the December issue of The Judge Who Hated Red Nail Polish: And Other Crazy but True Stories of Law & Lawyers, by Ilona Bray and Richard Stim, repeats the authors’ assertion that Abraham Lincoln and Ulysses S. Grant “filed for bankruptcy.” Neither president did so. Although Berry & Lincoln, the New Salem, Ill., general store in which Lincoln was a partner, failed in the early 1830s, and the Sangamon County sheriff levied execution on Lincoln’s horse, saddle, bridle, and surveying equipment, Lincoln didn’t file for bankruptcy relief. He couldn’t. Congress had repealed the Bankruptcy Act of 1800 in 1803 and did not enact another bankruptcy statute until 1841. It took Lincoln a number of years to pay the debts of his unsuccessful foray into the retail business.

Nor did Grant file bankruptcy. The Wall Street firm of Grant & Ward filed a voluntary assignment for the benefit of creditors in New York state court in May 1884, after Ward – the Bernie Madoff of his day – swindled the former president and other investors in Grant & Ward. Grant had to part with Civil War mementos to pay his debts. To help him financially, Samuel Clemens gave Grant a generous contract for his memoirs. Neither Grant & Ward nor Grant himself filed bankruptcy. Congress had repealed the Bankruptcy Act of 1867 in 1878 and did not replace it until the enactment of the Bankruptcy Act of 1898, the precursor to today’s Bankruptcy Code. The many historical references to Grant & Ward’s “bankruptcy” are inaccurate references to its state court receivership.

Many prominent Americans have filed for bankruptcy relief. Among them were the “financier of the Revolution,” Robert Morris; Civil War photographer Mathew Brady; Texas governor and U.S. Treasury secretary John Connally; and football great Johnny Unitas. Lincoln and Grant never filed bankruptcy.

Leonard G. Leverson, Leverson & Metz S.C., Milwaukee

Now, That’s Customer Service

President Boll shares the following letter he received in December:

In a time when it is rare to receive customer service from someone who is not only fluent in the English language but also prepared to actually listen and take the time to resolve a problem, positive experiences are few and far between. I write to tell you how much pleasure it gave me when I recently called the State Bar’s main number with the hope of finding an address for an old professor. The young man who answered the phone did not even bother to ask whether or not I was a member of the State Bar. He took down the information, checked his database, confirmed what I already knew (that this individual’s name was not showing in the database) and then went the extra mile. He asked me how old I thought this person would be, indicated that old records could be found in the State Bar’s archives, took my name and phone number, and within 30 minutes called me back to confirm that he had checked the database and archives for both the name that I had and some reasonable permutations of that name. Although he was unsuccessful in finding the attorney I was looking for, it was such a pleasure to deal with him that I felt a letter was warranted.

In the 30-plus years that I have been a member of this Bar, I have had nothing but this kind of experience with every person I have ever spoken to. It is a testament to the dedication of all of the employees at the State Bar together with you and most of your predecessors that this service continues in such an exemplary fashion. Please pass along my compliments to the State Bar staff.

Stephen D. Chiquoine, Chiquoine & Molberg S.C., Reedsburg

Correction: In the December 2010 Wisconsin Lawyer, the editors accidentally altered the meaning and intent of Kenneth W. Krause’s review of Shawn Peters’ book, When Prayer Fails: Faith Healing, Children and the Law. According to Krause, “readers should infer no undue criticism of the Hebrew texts from the editors’ mistake. On the other hand, Christian faith healers do find support for the reckless decisions that frequently result in the sickness and death of their own children primarily in and throughout the New Testament, which deserves much criticism indeed.” The editors regret the error.

Wisconsin Lawyer