State Bar of Wisconsin

New world order: Supreme court considers rule to permit graduates of foreign law schools to take Wisconsin bar exam

Feb. 11, 20090 – On Feb. 9, the Wisconsin Supreme Court took public comment and then debated the merits of a proposed rule 8-09 enabling graduates of foreign law schools to join the Wisconsin bar through examination.

James Huston, vice chair of the Board of Bar Examiners, explained that his organization sponsored the proposal in recognition of a world economy that increasingly brings immigrants with legal skills to Wisconsin.

Illustrating Huston’s point, British lawyer Gail Worley and Mexican lawyer Cynthia Herber appeared before the court to explain that despite their many years of practice in their native countries, they are not graduates of ABA-approved American law schools and consequently are barred from sitting for the bar examination.

Justices identified areas of concern and directed the BBE to rework the draft rule. Among the issues to resolve:

• Huston commented that the BBE does not assume that mere passage of the bar exam is enough to obtain a law license. Accordingly, he said the BBE has required applicants to have a degree from an ABA-approved law school. In this context, Huston said that the proposed rule permits the BBE to evaluate a foreign applicant’s education and experience to determine if the applicant should complete a supplemental educational program. Remarking that it makes little sense to require a foreign school to look like an American law school, Chief Justice Shirley S. Abrahamson said that she would have to see what this contemplated educational equivalency process looked like before adopting the rule.
• Some foreign nations present greater challenges to investigation of an applicant’s background, Huston acknowledged. Abrahamson suggested that those inquiries could take a long time. She recommended that the rule be rewritten so that the applicant could take the bar exam first and then await the outcome of the background check.
• The justices agreed that the two foreign lawyers, Worley and Herber, presented compelling hardship circumstances. Justice David T. Prosser said that the BBE should use its discretionary powers under SCR 40.10 to waive the law school requirement and permit them to sit for the bar exam. Huston said that the court should provide within the rule guidance for the use of the BBE’s discretion to overcome reluctance among board members to issue waivers.
  Abrahamson said that In Matter of Bar Admission of Altschuler, 171 Wis. 2d 1 (1992), is a roadblock to the BBE’s use of discretion. In Altschuler, an Israeli lawyer petitioned to take the Wisconsin bar exam and, despite evidence of a considerable legal background, the supreme court affirmed the BBE’s decision to deny her petition. Although the case was ostensibly a review of whether the BBE abused its discretion, its effect has been to discourage the BBE from issuing waivers. Abrahamson noted that she dissented from Altschuler and said that the court needed a new rule to address this precedent.
• Justices noted that there likely may be other foreign lawyers in the same bind that Worley and Herber found themselves, but have not put their cases forward in the same way. The justices said that this rule was too important to rush through, but agreed to provide relief in the interim. The court voted to direct the BBE to grant waivers to each applicant similarly situated as Worley and Herber following satisfactory evaluation under a totality of the circumstances test. A formal articulation of this direction is to be published soon enough to give applicants time to apply for the July exam, the court said.
• As proposed, the rule requires an applicant to have “actively and continuously” practiced law “for at least five of the seven years immediately before making application.” Huston advised the court that the BBE was willing to amend the practice requirement to three of the past five years. Adding another consideration to the mix, Herber noted that it has been a number of years since she was a practicing lawyer in Mexico so that she could not satisfy the requirement that her experience “immediately” precede her application. The court directed further study for these issues.

By Alex De Grand, Legal Writer, State Bar of Wisconsin