Vol. 79, No. 12, December
Letters to the
editor: The Wisconsin Lawyer publishes as many letters in each
issue as space permits. Please limit letters to 500 words; letters may
be edited for length and clarity. Letters should address the issues, and
not be a personal attack on others. Letters endorsing political
candidates cannot be accepted. Please mail letters to " Letters to the
Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax
them to (608) 257-4343, or
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,
There Can Be No Analogy between Racial Segregation and
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
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
Michelle Behnke, State Bar past-president,
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
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
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
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.
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
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
Mr. Levine and the Wisconsin Lawyer owe the Wisconsin bar
an apology for publishing this insulting article.
Mark Lee Snell,
Response: I appreciate your taking the time to
express your views, even though we appear to disagree. The only way I
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,
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
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.