Correspondence Law School Grads May Practice in Wisconsin

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by Jeffrey S. Kinsler

For decades, the only persons eligible to take the Wisconsin bar examination were graduates of ABA-approved law schools.1 This all changed, however, on June 4, 1998, when the Wisconsin Supreme Court promulgated a seemingly innocuous amendment to SCR 40.04(1). In a one-page order, the supreme court amended SCR 40.04(1) to read:

"(1) An applicant who has been awarded a first professional degree in law from one of the following [shall be eligible to take the bar examination]:

"(a) A law school that is fully or provisionally approved by the American bar association at the time of the applicant's graduation.

"(b) A law school whose graduates are eligible to take the bar examination of the state, territory or District of Columbia in which the law school is located, provided the applicant has passed the bar examination of and has been admitted to practice in that or another state." 2

This amendment arose out of a petition filed by the Massachusetts School of Law (MSL), a non-ABA-approved law school whose graduates are eligible to take the Massachusetts bar examination.3 MSL filed its petition pursuant to SCR 40.10, asking the Wisconsin Board of Bar Examiners (BBE) to waive SCR 40.04(1) so that its graduates could take the Wisconsin bar examination. At that time, SCR 40.04(1) stated that only graduates of ABA-approved law schools could sit for the Wisconsin bar examination. In support of its petition, MSL claimed that the quality of its legal education is substantially equivalent to that of ABA-approved law schools. The BBE denied MSL's request for a waiver on the ground that only applicants, and not law schools, are eligible to seek waivers under SCR 40.10.4 MSL then petitioned the Wisconsin Supreme Court for review. The BBE, MSL, and the ABA submitted briefs and other materials to the supreme court, which held a public hearing on Oct. 21, 1997.5

On June 4, 1998, the supreme court issued Order 97-09, permitting graduates of law schools that lack ABA approval but that have some form of state approval (for example, MSL) to take the Wisconsin bar examination. There are 43 such schools in California alone, including 10 correspondence law schools.6 The 1998 amendment to SCR 40.04(1) has opened up Wisconsin to a whole new class of law school graduates. It is now possible for graduates of correspondence law schools to sit for the Wisconsin bar examination and, if successful, practice law in Wisconsin. Moreover, it appears that the supreme court never contemplated the admission of correspondence school graduates when it amended SCR 40.04(1). This article urges the supreme court to reconsider its amendment to SCR 40.04(1) to determine whether it is overly inclusive.

Correspondence Law Schools

Concord University School of Law in Los Angeles, Calif., is one of a growing number of Internet and correspondence law schools in America.7 It has no campus, so its students never set foot in a classroom. Concord offers a four-year, part-time program with a curriculum and materials it claims are substantially similar to those of brick-and-mortar law schools. Concord is approved by the Bureau of Private Postsecondary and Vocational Education to grant law degrees, and is registered with the California Committee of Bar Examiners, which entitles its students to sit for the California bar examination.8 Graduates of Concord have taken and passed the California bar examination.9 California has designated Concord a "correspondence" school; correspondence schools are not eligible for ABA approval.10

Concord's all-Internet instruction has been criticized by lawyers, judges, and educators alike, including Justice Ruth Bader Ginsburg, who protested that:

"I am uneasy about classes in which students learn entirely from home, in front of a computer screen, with no face-to-face interaction with other students or instructors. So much of legal education - and legal practice - is a shared enterprise, a genuinely interactive endeavor. The process inevitably loses something vital when students learn in isolation, even if they can engage in virtual interaction with peers and teachers. I am troubled by ventures like Concord, where a student can get a J.D. (although the school is still unaccredited) without ever laying eyes on a fellow student or professor."11

Presumably, Justice Ginsburg would have felt even more uneasy had she known that Concord admits students who perform all of their undergraduate work - in some cases only two years - at Internet or correspondence universities. This means that a person can obtain a J.D. from Concord (or any of the other nine correspondence law schools in California) without ever attending an undergraduate or law school class (and possibly even a high school class, if home schooled).12

In response to critics, Jack Goetz, dean of Concord University School of Law, asserts that "[t]he reality is that many law schools still have first-year classes of 70-80 people in which a student has very little interaction with the professor."13 "Our state-of-the-art technology provides greater access to professors and fellow students via instructor-led chat rooms, extensive working knowledge of online electronic research engines, and an invaluable preparation for the practice of law."14 Concord students can communicate with their professors via email and telephone, and get to know their classmates through online discussions.15 Online lectures are available 24 hours a day, seven days a week, and the curriculum is approved by a board of professors from ABA-approved law schools.16 And tuition at Concord is much lower than at most private law schools - $5,160 per year.17

Wisconsin Bar Examination

What does all this have to do with Wisconsin? Thanks to the 1998 amendment to SCR 40.04(1), Concord graduates now are eligible to take the Wisconsin bar examination. As prescribed by SCR 40.04(1), Concord is a "law school whose graduates are eligible to take the bar examination of the state ... in which the law school is located [California]."18 Thus, Concord graduates who pass the California bar examination and have been admitted to practice in California are eligible to sit for the Wisconsin bar examination under SCR 40.04(1)(b). Wisconsin has become, perhaps unwittingly, one of only two states in the nation to allow correspondence law school graduates to sit for the bar examination.19 And it did so with little or no fanfare.

As part of a select group, Wisconsin may experience an influx of correspondence law school graduates over the next few years because, besides California, graduates of such schools have no place else to go. And migration is not the only issue. There is nothing to prevent Wisconsin residents from completing the degree requirements at Concord (or any of the other nine correspondence law schools in California), taking and passing the California bar examination, and then sitting for the Wisconsin bar examination. Moreover, Wisconsin may become a gateway for graduates of correspondence law schools to practice in other states. There are at least four states - Indiana, Iowa, Vermont, and Virginia - that admit (on motion) Wisconsin attorneys after five years of practice even if they did not graduate from ABA-approved law schools. The 1998 amendment to SCR 40.04(1) may force these states to reconsider whether to grant reciprocity to Wisconsin lawyers.

Conclusion

What seemed to be a minor amendment to SCR 40.04(1) has the potential to considerably alter the composition of the Wisconsin bar. Even assuming MSL met its burden under SCR 40.10, there was no justification for the supreme court's blanket amendment to SCR 40.04(1). A thorough investigation is needed before Wisconsin recognizes correspondence law schools. No such investigation has taken place.

As an alternative to the 1998 amendment to SCR 40.04, the supreme court should enact a rule that authorizes the BBE (subject to supreme court review) to consider petitions by non-ABA-approved law schools on a case-by-case basis. To obtain approval in Wisconsin, the non-ABA-approved law school should be required to prove that it satisfies the ABA's standards for accreditation or that its own standards are substantially equivalent to the ABA's standards. In the meantime, the Wisconsin Supreme Court should promulgate a rule requiring that applicants for the Wisconsin bar examination possess a bachelor's degree.

Endnotes

1 SCR 40.04(1). Before June 4, 1998, SCR 40.04(1) read: "An applicant who has been awarded a first professional degree in law from a law school that is fully or provisionally approved by the American bar association at the time of the applicant's graduation [shall be eligible to take the bar examination]." SCR 40.10 authorizes the Wisconsin Board of Bar Examiners to waive this requirement "in exceptional cases." The supreme court has twice affirmed the BBE's refusal to waive SCR 40.04(1). See In re Matter of Bar Admission of Petrie, 216 Wis. 2d 640, 575 N.W.2d 266 (1998); In re Matter of Bar Admission of Altshuler, 171 Wis. 2d 1, 490 N.W.2d 1 (1992).

2 Wis. S. Ct. Order 97-09 (June 4, 1998) (emphasis added).

3 See Massachusetts School of Law v. American Bar Ass'n, 142 F.3d 26, 29 (1st Cir. 1998).

4 SCR 40.10 provides in pertinent part that "the board may waive any requirements of this chapter in exceptional cases and for good cause if failure to waive the requirement would be unjust."

5 Florida and New York have rejected similar petitions by MSL.

6 See www.calbar.org/admissions/2admsch.html.

7 For an extensive analysis of Concord University School of Law, see Robert E. Oliphant, Will Internet Driven Concord University Law School Revolutionize Traditional Law School Teaching? 27 Wm. Mitchell L. Rev. 841 (2000).

8 See Cal. R. Ct. 957(a)(2) and Cal. Admissions R. VII. Unlike graduates of fully accredited law schools, students attending correspondence law schools are required by the California Committee of Bar Examiners to pass an examination after their first year of legal education before continuing their law study. See Cal. Admissions R. VIII.

9 From 1987 to 1999, approximately 26 percent of correspondence law school graduates passed the California bar examination on the first attempt. See http://www.taftu.edu/lw11.htm.

10 ABA Accreditation Standard 304(g) specifically provides that "a law school shall not grant credit for study by correspondence."

11 Available online at www.rutgers-newark.rutgers.edu.

12 There is nothing in the Wisconsin Supreme Court Rules requiring that applicants for the Wisconsin bar examination possess undergraduate degrees. Such a requirement was unnecessary before 1998, because ABA-approved law schools may only (with a couple of minor exceptions) admit students who have bachelor's degrees. ABA Accreditation Standard 502(a). Under California law, Concord may admit students who have not obtained bachelor's degrees; students may apply to Concord if they have completed the equivalent of two years of undergraduate work. Cal. Admissions R. VII(a)(1).

13 Oliphant, supra note 7, at 848 (quoting Dean Goetz).

14 Rebecca Porter, Law Schools Enroll Technology to Teach 21st Century Lawyers, 35 Trial 100 (Apr. 1999) (quoting Dean Goetz).

15 Oliphant, supra note 7, at 848 (quoting Dean Goetz).

16 Id.

17 This amount is based on 24 semester credits at $215 per credit.

18 Concord's Web site states that its "[g]raduates are eligible to apply to sit for the California bar examination. Upon passing the bar examination and fulfilling other statutory requirements, graduates become eligible to practice law in the State of California, as well as many of the Federal courts." See www.concordlawschool.com.

19 Unlike SCR 40.04(1), SCR 40.05 does not require that applicants for admission to the bar upon proof of practice elsewhere have graduated from ABA-approved law schools. However, because California is the only state (other than Wisconsin) currently allowing graduates of Internet and correspondence law schools to sit for the bar examination and because California and Wisconsin do not have reciprocity, it was not possible for graduates of correspondence or Internet law schools to practice in Wisconsin before 1998.