Petition seeks to alter diploma privilege

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It is a sensitive subject, which is why attorney Steven A. Levine is giving the state Supreme Court some options.

On September 25, Levine filed a petition asking the court to either extend Wisconsin’s diploma privilege to graduates of all accredited law schools or eliminate the privilege altogether.

Currently, only graduates of Marquette University Law School and the University of Wisconsin Law School can be licensed in the state without having to pass any bar exam.

Wisconsin is the only state with a diploma privilege.

“My concern is that there should be one bar admission standard for everyone, and it’s not fair to require a bar exam for some people and not of others,” Levine said.

In his petition, Levine asks the court to remove the words “in this state” from Supreme Court Rule 40.03 for a 10-year trial period to test whether the change is practical.

“Extend it for that trial period and see if it works,” Levine suggested.

Attorney James L. Huston is the vice-chair of the state’s Board of Bar Examiners (BBE). He said the board has yet to fully review the petition.

Huston suggested that neither a bar exam nor the diploma privilege is a perfect approach and there is a competency risk with either form of admission.

“The bar exam may or may not catch people at the margins,” he said. “It’s not an exact test and it’s not an exact system.”

Further, he said that allowing graduates from ABA-accredited institutions outside the state to be admitted based on their degree alone could be problematic.

“If we’re talking about the top 100 law schools, I don’t think I’d have a problem with that,” Huston said. “But how do we draw a line between the good law schools and the ones that are not so good?

“Is an ‘A’ at Harvard the same as an ‘A’ at Podunk law school? I don’t know.”

Federal court challenge

Christopher L. Wiesmueller is the Waukesha attorney in a class action pending in federal district court challenging the constitutionality of the diploma privilege.

The plaintiffs are arguing that the privilege discriminates against graduates of out-of-state law schools.

In July, the case was remanded to the trial court by the 7th Circuit for further proceedings. A motion for summary judgment was filed on September 16.

Wiesmueller is also one of four attorneys who support Levine’s effort to expand the diploma privilege, while 66 other lawyers have signed on in support of Levine’s entire petition.

“Even if I’m successful in my lawsuit, it will be Wisconsin’s call as to what happens next,” he said. “This [petition] is basically a form of expediting the process.”

One of the arguments made by Wiesmueller and Levine is that law schools outside of Wisconsin teach the same federal and common law courses as Marquette and UW and that Wisconsin schools place little emphasis on local law.

“The argument that the bar exam specifically tests Wisconsin law is a make weight argument to defend the diploma privilege,” Levine said.

But BBE chair James A. Morrison said the board has modified portions of the bar exam to make it more state specific, including essay questions on Wisconsin law written by local practitioners.

Morrison believes the current process of evaluating practice competency through either the diploma privilege for in-state graduates or the bar exam for out-of-state attorneys is a “fair and accurate” method.

“I don’t think it’s accurate to say we are [discriminating against] lawyers from other states who do not go to school [here],” he said.

But Levine said there is no justification for a “double standard” and it is time for the court to consider an expansion of the diploma privilege.

“If people think the diploma serves as a great way of ensuring competency, why not extend it to everyone?” he said.