BBE considers alternatives to bar exam

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While recent attempts to modify Wisconsin’s diploma privilege have failed, the requirements for being admitted to practice in the state are under review.

A Board of Bar Examiners (BBE) subcommittee is mulling alternatives for admittance in the wake of failed attempts by attorneys to modify the state’s diploma privilege, which grants bar admission to graduates of Wisconsin’s two accredited law schools.

Potential substitutes for the exam include a summer course focused on the practical necessities of law, rather than theory, and a mentorship program through which a graduate would practice under the tutelage of an experienced Wisconsin lawyer.

“We’re asking what is the best way today to ensure that newly admitted lawyers possess the minimum competency to practice law,” said attorney James A. Morrison, immediate past chair of the BBE. “We don’t want to say you should take this test because we took it.”

Morrison took and passed exams in three states. One argument against using the bar exam is that it is not the definitive barometer of a new attorney’s ability to effectively practice law, but rather a regurgitation of law school theory.

“I think the bar exam should be just removed as a requirement and I don’t think there is any evidence that it creates a better lawyer,” said attorney Eric S. Brittain, who serves on the State Bar of Wisconsin’s BBE Review Committee.

Waukesha attorney and Oklahoma City University Law School graduate Christopher L. Wiesmueller agreed and said anyone who graduates from an American Bar Association-accredited law school shouldn’t be subjected to the Wisconsin bar exam.

An alternative such as a summer course or mentoring program could not only present a practical solution, but also prevent future lawsuits on the legality of the diploma privilege.

In 2007, Wiesmueller, with his wife Corinne as the named plaintiff, challenged the constitutionality of the diploma privilege in federal court. The case settled in March 2010.

“I think the alternatives would be better for law students, but also make it unlikely for any future litigation over bar admission in the state,” he said. “It’s win-win for everybody to do something sooner rather than later.”

But there are roadblocks to implementing any changes in how Wisconsin admits attorneys.

If a six-to-eight week summer course is developed, Morrison said it’s unknown if either Marquette or the University of Wisconsin would be willing to administer it.

Another consideration is how much of the substantive course content would be state-specific.

In an effort to avoid any constitutional discrimination issues, Wiesmueller suggested that the course be modeled after curriculum already taught at the state law schools that deal with Wisconsin law.

“It would be an apples to apples situation,” he said.

A mentorship program also presents obstacles, such as finding enough volunteer attorneys willing to participate or setting up a comprehensive performance evaluation and certification.

Morrison said new graduates would have to get hands-on court experience dealing with clients under the supervision of a senior attorney.

“This is more than just you come work for me at slave wages for a year and I’ll sign off,” Morrison said. “The person will need endorsements from judges they appeared before and attorneys they practiced with.”

Two states, Utah and Georgia, have mandatory mentoring programs, although neither serves as a replacement to the bar exam.

However, in Utah, completion of the program during the first year of practice is required to continue practicing.

Beyond the development of any new programs is the unknown of what additional burden might be placed on the BBE, said Director Jacquelynn B. Rothstein.

“We haven’t really crossed that bridge yet,” she said. “I think the ideas are legitimate, but how they are going to be implemented and/or used is yet to be determined.”

Ideally, Morrison said he wants to work through any changes by the end of 2011, but realizes that the final decision will come from the Supreme Court.

Last fall, the court unanimously rejected a petition to expand the diploma privilege to law school graduates outside of Wisconsin, so it’s unknown whether the court would favor changes to bar admission.

However, at the most recent BBE meeting on Dec. 6, during which the board meets with the court, Justice Ann Walsh Bradley suggested that graduation from an ABA-accredited law school is enough to provide minimal competence to begin the practice of law.

“She is probably right, because it’s hard to get through the proper law school,” Morrison said.

Jack Zemlicka can be reached at [email protected].