Vol. 75, No. 12, December 2002

Is it Time to End the Bar Exam?

End Separate-But-Equal Bar Admission

by Steven Levine

On Sept. 25, 2002, 105 lawyers were sworn in as new members of the Wisconsin bar. They all graduated from ABA-approved law schools. They all took the usual courses that students take in law school. But because they attended law schools located outside Wisconsin, they all were required to pass the Wisconsin bar exam in order to practice here. It's time to end this "separate-but-equal" form of bar admission. It's time to extend the diploma privilege to graduates of all ABA-approved law schools, regardless of where the schools are located.

The diploma privilege has a long and colorful history in Wisconsin. It was first offered by the legislature to U.W. Law School graduates in 1870 to encourage lawyers-to-be to receive formal legal education instead of just "reading law," which was the method de jure of qualifying to be a lawyer at that time.¹ After years of unsuccessfully attempting to persuade the legislature to abolish the privilege for U.W. graduates,² Marquette University Law School apparently decided that if you can't lick 'em, join 'em, and the privilege was extended by the legislature to Marquette graduates in 1933.³ The supreme court acquiesced,⁴ and since 1933 graduates of both Wisconsin law schools have had the benefit of the diploma privilege.

Nationally, the diploma privilege has waxed and waned. Thirty-three other jurisdictions also adopted the diploma privilege⁵ to encourage the formal education of lawyers, but during the twentieth century the privilege began to fall out of favor, and states slowly returned to the bar exam. The idea gained favor that a comprehensive entrance exam is a necessary prerequisite for all professions and, since law is a profession, lawyers have to pass a bar exam. Such diploma privilege hold-outs as Montana, West Virginia, and Mississippi finally threw in the towel, until Wisconsin was left as the only state offering the privilege. The American Bar Association formally disapproves of the diploma privilege,⁶ but any suggestion of abolishing the privilege here is slightly less popular than the 21-year drinking age is to teenagers.

But what's good for the goose is good for the gander. Many students,⁷ including Wisconsin residents, choose to attend out-of-state law schools that prepare them just as well to practice in Wisconsin as do the U.W. and Marquette law schools. By supreme court rule, virtually all lawyers-to-be who take the Wisconsin bar exam must be graduates of law schools approved by the American Bar Association;⁸ therefore, these schools are quality institutions, and the lawyers they graduate are just as qualified to practice law as are U.W. and Marquette graduates. There is no reason to deny equal bar admission treatment on the basis of where a student has attended law school.

But don't the Wisconsin law schools emphasize Wisconsin law? Isn't that the real basis for limiting the diploma privilege to only U.W. and Marquette graduates? As a graduate of both an out-of-state law school and the U.W. Law School, I saw no difference in emphasis on Wisconsin law. There certainly is no difference in such courses as constitutional law, bankruptcy, securities law, federal civil procedure - all federal in nature - and the many areas where Wisconsin has joined other states in adopting uniform laws. Ironically, the multi-state bar exam (given as a part of the Wisconsin bar exam) tests on "majority law," some of which is contrary to Wisconsin law. A bar admission applicant must answer tort questions on the basis of contributory negligence, then forget all that he or she has learned for the bar exam in order to practice correctly in Wisconsin. And face it, the law changes so frequently that what is here today is gone tomorrow. The purpose of law school is not so much to teach a student what the law is as it is to teach a student how to think like a lawyer.

But wouldn't abolishing the bar exam be an expensive administrative nightmare? Actually, eliminating the bar exam would save the state the time and expense of administering the exam and save law school graduates the time and expense of studying for it. Students attending out-of-state law schools would have to meet the same course requirements as U.W. and Marquette law school graduates and receive the same certifications from their deans that are now required of the in-state school attendees. A diploma privilege requirement for bar admission that applies to all applicants equally would be a more efficient, less expensive, and fairer method of bar admission than the present "separate-but-equal" system.

Is extending the diploma privilege to graduates of out-of-state law schools a radical idea? Not according to the late Marquette Law School Dean Howard Eisenberg, who also was chair of the Wisconsin Board of Bar Examiners. In an article published in the November 2001 Wisconsin Law Journal in which he advocated eliminating the bar exam in all states, Dean Eisenberg wrote, "For graduates of accredited American law schools, the bar exam serves no purpose and misleads the public. It should be eliminated."⁹ Ending the bar exam in Wisconsin would be a good place to start.

For years prior to their successful legislative effort in 1933, Marquette University Law School graduates felt the sting of discriminatory treatment in bar admission requirements. Now, it's time to treat everyone equally and fairly by extending the diploma privilege to graduates of all ABA-approved law schools, regardless of where the schools are located. The Wisconsin Supreme Court should extend the diploma privilege to graduates of all ABA-approved law schools on a 10-year trial basis to see if such a system can work. It's time to end the present "separate-but-equal" system when it comes to bar admission. It's time for equal justice under law.

Steven Levine, Georgetown 1973, is an attorney with the Wisconsin Public Service Commission.

Endnotes

¹ Chapter 79, Laws of 1870.

² In its efforts to have the diploma privilege abolished, Marquette pointed out that the states of Michigan and Minnesota had recently abolished the privilege. The American Bar Association as well as the Wisconsin State Bar Association's Committee on Legal Education also supported the bar exam over the diploma privilege as the better method of bar admission. See 3 Marq. L. Rev. at 105 (1918-19), 9 Marq. L. Rev. at 49, 50 (1924-25). All efforts to abolish the diploma privilege, however, were unsuccessful.

³ Chapter 60, Laws of 1933 (amending Wis. Stat. § 256.28(1)). To a great degree, Marquette University Law School viewed its success in acquiring the diploma privilege as a declaration of equal status with the U.W. Law School. In 1983 Marquette officially marked the occasion by "Celebrating 50 Years of Diploma Admission to the Bar."

⁴ In re Admission of Certain Persons to the Bar, 211 Wis. 337, 247 N.W. 877 (1933). Ironically, although the Wisconsin Supreme Court jealously guards its authority over who can practice law in this state, the diploma privilege was granted to graduates of both Wisconsin law schools by the legislature rather than by the court.

⁵ Francis D. Morrissey, Comprehensive Test on Legal Principals is Last, Best Step in Determining Fitness for Lawyering, Chicago Daily L. Bull., April 22, 1995.

⁶ American Bar Association Code of Recommended Standards for Bar Examiners, No. 16, states: "A person who is not a member of the bar of another jurisdiction of the United States should not be admitted to practice until the person has passed a written bar examination administered under terms and conditions equivalent to those applicable to all other applicants for admission to practice."

In addition to the ABA's disfavor of the diploma privilege, some states refuse to grant "reciprocity" admission (admission without having to take a bar exam) to lawyers admitted via diploma privilege on the same terms as lawyers who have passed a bar exam in the jurisdiction in which they are practicing. See, e.g., Tennessee SCR 7, sec. 5.01(e) (2002).

In a move of doubtful constitutionality, the Wisconsin Supreme Court has retaliated by adopting SCR 40.05(1m)(b), which denies reciprocity admission to lawyers from those states.

⁷ In the year 2001, 232 lawyers who attended law schools outside Wisconsin were admitted via bar exam, while 422 U.W. and Marquette law school graduates were admitted via diploma privilege. Those entering via bar exam constituted more than 35 percent of lawyers admitted to practice in Wisconsin last year via both methods of admission. (In addition to admission via bar exam or diploma privilege, 77 lawyers were admitted in 2001 on the basis of their practice in other jurisdictions - mainly Illinois and Minnesota.) The bar exam pass rate was just over 75 percent in 2001 and just over 77 percent in 2002. Thanks to attorney Gene R. Rankin, director, Board of Bar Examiners, for this information.

⁸ Supreme Court Rule 40.04(1)(a) requires an applicant for bar admission via exam to have graduated from a law school fully or provisionally approved by the American Bar Association. An exception is made if an applicant has graduated from an unapproved law school but has already passed the bar exam of the state where the law school is located. SCR 40.04(1)(b).

⁹ Howard B. Eisenberg, Eliminate the Bar Exam!, Wis. L.J., Nov. 28, 2001, at 10A.

Other States Should Catch Up to Wisconsin

by Gene R. Rankin

The diploma privilege is a very good thing, but the way it has been made into a very good thing is largely unique to Wisconsin. As anecdotal evidence is the best kind, allow me to relate my conversation (reconstructed, of course) with the chief justice of a state that once had the diploma privilege but has it no longer:

Justice: From Wisconsin, eh? Still have the diploma privilege?

Me: Yes, sir. And will continue to have it for as long as it continues to work well.

Justice: What do you mean, "works well"? How do you manage it?

Me: Well, the supreme court has the 30-credit rule specifying the basic required courses, the 60-credit rule which has a broader scope and then, for the U.W., there's the Board of Visitors and the fact that the law school is a mile away from the supreme court. Marquette is a little further away, but has similar oversight through its Dean's Board of Advisors.

Justice: Really? We just took the law school's word and admitted them.

***

What this all means is that Wisconsin has made the diploma privilege work. Wisconsin is a smallish state with but two law schools, and it has paid attention to legal education. This level of attention is evidenced by the fact that Wisconsin's adjoining states do not insist that diploma privilege graduates take a bar exam to be admitted in them, as do a number of other states that adjoin former diploma privilege states (specifically, Alaska [said to have adopted Ohio's rule without further analysis], Ohio, Tennessee, and Wyoming).¹ Clearly, Minnesota, Iowa, Illinois, and Michigan do not find the legal training acquired at the U.W. or Marquette to be wanting.

With respect to that training, it is true that there is a substantial body of what approaches "national" law, but not every state has adopted the most recent accretions to the UCC, nor have they accepted the wisdom that informs Wisconsin's criminal law, marital property law, tort law, or real estate law. These areas of law unique to Wisconsin are, in fact, taught at Wisconsin's law schools and tested on by Wisconsin's bar examination. We do so because we think that a lawyer professing minimal competence to practice law in Wisconsin ought to know them. I would be astonished if anyone thought otherwise.

The late Dean Howard Eisenberg advocated extending the diploma privilege to other law schools, but it cannot be done easily. In his own words, "Wisconsin is the only state that gets it right."² (Emphasis in original.) Wisconsin gets it right because it regulates legal education. If the same quality is to be secured from out-of-state law schools as has been from the in-state ones, either the supreme courts of the states where those law schools are located will have to exercise the degree of oversight exercised by the Wisconsin Supreme Court or Wisconsin will have to ensure that their curricula meet the requirements set by SCR 40.03. This may sound easy on the surface, but operationally it would be terribly difficult. As of Oct. 1, 1999, there were 182 ABA-approved schools granting the first professional degree in law, and their quality varies greatly.³

Extending the diploma privilege to only ABA-approved schools could raise another question. Recently, the supreme court extended the right to sit for Wisconsin's bar exam to graduates of non-ABA-approved schools. There are at least 29 non-ABA-approved law schools in the U.S.⁴ In addition, there are non-ABA-approved schools not included in this total, schools granting correspondence law degrees to people who never acquired a college degree.⁵ Graduates of these schools sit for the Wisconsin bar exam only if they are eligible to sit for the bar exam where their school is located and if they have already taken and passed a bar exam. How diploma privilege parity might be granted to these schools presents an even more difficult question.

Beyond this, there is the problem of how to cope with the people who have obtained their legal training in other countries, some of which are common-law jurisdictions, while others are code jurisdictions, and still others have their legal structure tied to cultural traditions. Keeping tabs on all of these from Madison would be at least as difficult a chore as creating, administering, and grading two bar examinations each year.

Still beyond this is the basic issue of fairness. More than half of America's jurisdictions, the ABA's recent debates on multijurisdictional practice (MJP) notwithstanding, do not allow admission without a bar examination.⁶ It can hardly be fair to extend the diploma privilege to all, when most states extend reciprocity to none. It is that notion of fairness that underlies the adoption of SCR 40.05(1)(c), which not only denies reciprocity to lawyers from those bar-exam-only states but which also imposes the sending jurisdiction's rule upon its lawyers seeking admission to Wisconsin. In effect, this rule precludes admission on motion to lawyers from four more states (which have residency requirements, clerkship requirements, or which grant temporary licenses), and imposes higher thresholds than the three-year practice requirement set by SCR 40.05(1)(b), Wisconsin's base reciprocity rule. The last nail in the reciprocity coffin is SCR 40.05(1m)(b), the section that bars admission on motion to lawyers from those states that abjure the diploma privilege and the lawyers admitted by it. This section bars motion admission to the lawyers from only four states, surely an effect less discriminatory than the effect of the majority of the admissions rules afoot in the U.S.⁷

The constitutionality of reciprocity rules, though perhaps disturbing to those caught in their net, has been affirmed in challenge after challenge. One of the most succinct statements on this point came out of a challenge in South Carolina, where the appellate court said "Reciprocal statutes or regulations, it has been uniformly held, are designed to meet a legitimate state goal and are related to a legitimate state interest. For this reason, they have been found to be invulnerable to constitutional attack on equal protection grounds."⁸

While I have expressed concern with the utility of Wisconsin's reciprocity rule, I have never had a moment's doubt about the utility of the diploma privilege. If other states applied the same rigor that Wisconsin does, then I believe that extension of the privilege to those states could be granted with ease. A good first step would be for those states to grant the diploma privilege to their own graduates. When do you suppose they might?

Gene R. Rankin, U.W. 1980, is director of the Wisconsin Board of Bar Examiners.

Endnotes

¹ Erica Moeser and Margaret Fuller Corneille, eds., "Comprehensive Guide to Bar Admissions 2002," National Conference of Bar Examiners and American Bar Ass'n, Madison, Wis., and Chicago, Ill., 2002, Chart X.

² Howard B. Eisenberg, Eliminate the Bar Exam!, Wis. L.J., Nov. 28, 2001, at 10A.

³ Official American Bar Association Guide to Approved Law Schools, 2001 Edition, IDG Books Worldwide 2000, Foster City, Calif., at 9.

⁴ Id. at 452.

⁵ See, for example, a California-based Internet school granting a J.D., www.concordlawschool.com.

⁶ "Comprehensive Guide," supra note 1, Chart X.

⁷ See note 1, supra.

⁸ Hawkins v. Moss, 502 F.2d 1171 (4th Cir. 1974), cert. den., 420 U.S. 928 (1975).

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