Unlimited exams would open Pandora’s Box

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Would you trust the skills of a surgeon who took his boards 10 times before passing?

Neither would I, nor would I want to enlist the services of an attorney who had to take the Wisconsin bar exam 10 times.

But the state Supreme Court with a 5-2 vote has tentatively approved a plan that would eliminate limits on how many times someone could try to pass it. Court staff is drafting potential changes that would allow unlimited attempts to pass the bar exam.

As Supreme Court Rule 40.04 stands now, graduates of law schools from out side Wisconsin are guaranteed three opportunities to pass. After that, they can ask the Board of Bar Examiners for additional opportunities, but the criteria upon which the BBE makes its decisions are not clearly defined.

During a public hearing last week, BBE Director John Kosobucki told the justices that petitioners must present a study plan that they will complete prior to taking the bar exam again. The plan must be overseen by a licensed attorney.

On Nov. 7, the state’s high court considered a petition from Arnold A. Moncada Jr., a Thomas Cooley Law School (Lansing, Mich.) graduate who has made five unsuccessful attempts to pass the Wisconsin bar exam. Audio of that public hearing for Petition 07-04 is available here. Moncada said that 31 states allow unlimited attempts to pass the exam. He also noted that some other professions within Wisconsin allow unlimited opportunities to pass their licensing examinations.

I understand wanting to level the playing field with Wisconsin law school graduates who receive diploma privilege. However, the solution is not to eliminate the safeguards we have in place to protect the public. Questions regarding the appropriateness of diploma privilege should be considered separately.

It would make sense to establish firm guidelines for the BBE to use when determining whether to allow candidates to take the bar exam a fourth time, so that each person is treated equitably. However, the absence of those guidelines does not warrant opening the door to taking the bar exam an unlimited number of times.