Vol. 76, No. 3, March 2003

Letters

Is It Time to End the Bar Exam?

Readers respond to December's pro/con editorial on whether it is time to end the bar exam and extend the diploma privilege to graduates of all ABA-approved law schools.

Not All Wisconsin Grads Would Pass Bar Exam

The editorial in the December 2002 Wisconsin Lawyer, "Is It Time to End the Bar Exam?," did not discuss a third option: the elimination of the diploma privilege and the requirement that all law school graduates take the bar exam.

I believe it is time to reconsider the diploma privilege in Wisconsin, the only state with the diploma privilege.

The public has a right to expect minimum levels of competence from attorneys. Although a bar exam is not the only measure, it does impose objective criteria by which lawyer applicants are measured in terms of basic levels of competence. The diploma privilege instead uses the collective, often partially subjective, opinion of a law school faculty that a graduate is competent to practice law.

I am an AV-rated attorney who graduated from Golden Gate University School of Law in San Francisco in December 1979. I was admitted to practice in Wisconsin and California in 1980 after successfully passing both bar exams on the first attempt.

The California pass rate for July 2001 first-time bar exam takers who graduated from ABA-accredited law schools in California was 78.6 percent compared to 70.3 percent from ABA-accredited law schools outside of California. In July 2002, the ratio was 68.5 percent compared to 66.5 percent.

The Wisconsin pass rate for bar exam takers who graduated from ABA-accredited law schools outside of Wisconsin was 83 percent in July 2002, 67 percent in February 2002, 77 percent in July 2001, and 72 percent in February 2001.

Although I can only speculate as to what the Wisconsin bar exam pass rate would be for graduates of Wisconsin law schools, it clearly would not be 100 percent and would likely be in the neighborhood of 85 to 90 percent. This, of course, means that anywhere from 10 to 15 percent of the graduates of Wisconsin law schools would be unable to pass the Wisconsin bar exam, a bar exam not known for its difficulty.

A bar exam and the review used as a condition precedent ensure that law students have at least minimum levels of competence. For example, civil procedure is normally taken in the first year of law school. It is not unreasonable to assume that after two additional years of study, students may have forgotten some of the basic rules of civil procedure. I believe that the public in Wisconsin would be better served if the bar exam were required of all applicants in Wisconsin.

Incidentally, eliminating the diploma privilege would likely have the added effect of actually improving law schools in Wisconsin as they compete with out-of-state law schools for the most qualified students.

Thomas R. Jones, Waukesha

Exam Doesn't Consider Timeliness and Specialization

I think neither article spoke to the biggest inequities faced by licensed lawyers moving into the state compared to diploma privilege attorneys: timeliness and specialization.

Lawyers moving to Wisconsin can be subjected to a full-scale testing of every subject in law many years after completing course work on a subject, including subjects those lawyers have never practiced and have no intention of ever practicing. The scoring of the Wisconsin bar exam is weighted to specifically preclude passage by receiving high scores in areas of expertise. Lawyers who are not recent grads are often employed and have moved beyond "starving student" financial commitments. Most cannot take a month off and spend thousands to pay BAR/BRI to distill the highlights of Wisconsin law. (And, although it may be effective for a bar exam, I question whether a BAR/BRI cram course really provides the depth of legal knowledge necessary to be competent in practice.)

The Wisconsin diploma privilege is based on taking a certain series of courses, maybe geared to Wisconsin law, and achieving certain grades. Exams are given at the end of a semester of devoted study (many times to students who have nothing diverting their attention from the wholehearted study of the law). Those grades are what are considered for the diploma privilege.

Following completion of a course, a particular subject matter may never be reviewed again in the professional careers of many attorneys who go on to practice in another field. Perhaps if Wisconsin wanted to verify that the diploma privilege really recognizes the production of such highly knowledgeable generalists, it should administer the full bar exam to fully employed attorneys who have been out of law school two to four years. Perhaps those kinds of results would be helpful to the debate.

Mary Sajna, Portland, Ore.

Provincial Air of Superiority Colors Debate

Regarding the diploma privilege: I recently attended a talk by the chancellor of U.W.-Platteville that included an astonishing statistic - Wisconsin ranks 50th among the states in attracting graduates from out-of-state colleges. While not directly related to the legal profession, that statistic helps to explain the provincial air of superiority that colors so much of our public policy debate.

If Wisconsin wants to excuse U.W. and Marquette law school graduates from sitting for a bar examination, fine. But please spare those of us who toiled our way through second-class law schools like Chicago, Harvard, Stanford, Michigan, Illinois, Northwestern, Georgetown, and so on, the lectures about how only Wisconsin law schools get legal education "right." Take a look at Supreme Court Rule 40.03(2). Do you think these subjects are unknown to law schools in the hinterlands, or that Harvard Law School would be unable to certify to the Wisconsin Supreme Court that its graduates have studied them for 60 semester hours?

Is Wisconsin law so "unique" that its mastery demands bar testing for out-of-state grads? Why then is the Wisconsin ABA delegation lobbying against the ABA's proposed controls on out-of-state admissions? The ABA proposal, as I understand it, would require that Wisconsin lawyers prove they have passed a bar exam to qualify for pro hac vice admission in the other 49 states. I believe it is foolhardy to assume that the law of no other state is more "unique" than Wisconsin's. But if that's your assumption, then the assumption itself should serve to disqualify untested Wisconsin lawyers from practicing in all those other states where the law is so different.

Wisconsin is a truly wonderful place to live and work. But its virtues are diminished by the perpetual claims that legislatures, governors, courts, and law schools elsewhere are engaged in nothing more than producing feeble imitations of the wheels invented here.

George Vernon, Monroe

Wisconsin Lawyer