Court appears unlikely to change diploma privilege

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Madison – Despite a heartfelt request to extend Wisconsin’s diploma privilege to graduates of out-of-state law schools, the Supreme Court appears poised to deny a petition filed by more than 70 attorneys.

After a public hearing Thursday, at least three justices were unconvinced that Wisconsin should allow graduates of more than 190 ABA-accredited law schools in the country to be exempt from taking the bar exam to practice in the state.

“It seems to me that this petition is a non-starter and should be put out of its misery,” said Justice David T. Prosser, who made a motion to deny the petition.

Fellow Justices Annette K. Ziegler and N. Patrick Crooks also expressed opposition to the proposal, though the court delayed further discussion and a formal vote until Monday.

In his presentation to the court, attorney Steven A. Levine argued that restricting the ability of graduates from only the University of Wisconsin Law School and Marquette University Law School to enjoy the diploma privilege is “unfair and discriminatory.”

Levine requested that the court extend the privilege to other graduates for a 10-year trial period, after which the court could determine whether there were significant problems, disciplinary or otherwise, with the change.

He said out-of-state law school graduates incur unnecessary costs, often in excess of $2,500, to prepare and take the bar exam and cannot do so until the July after graduation, which gives new attorneys in Wisconsin a three-month advantage in landing jobs.

Deans and faculty from both law schools touted the competence of their graduates in comparison with those of other states, and said that extending the diploma privilege to all other ABA-approved schools would be dangerous because not all law schools are created equal.

UW Law School Dean Kenneth Davis conceded that while institutions generally teach the same subjects, the make-ups of the student bodies are undeniably different.

“It’s something we don’t like to talk about, but we have to here,” he said.

Others said the change would require the Board of Bar Examiners to hire additional staff to meet the administrative burden of tracking curriculum of every law school.

Prosser also questioned whether the change would apply not just to new graduates of out-of-state law schools, but to all graduates, regardless of their year of graduation.

If so, BBE director Jacquelynn B. Rothstein said the state’s proof of practice requirement would likely become obsolete.

But Levine questioned whether opposition to the petition was rooted in the idea that the current form of the diploma privilege is meant to limit competition, rather than evaluate competence.

“I thought the conservative principle was to let the free market decide on competition and not have the government put its thumb on the scale favoring one side or the other,” he said.

Prosser questioned the harm in considering the financial implications, especially in this economy when some of the most recent graduates from UW and Marquette still don’t have jobs.

He said “flooding the market” with new attorneys from outside the state will make it that much more difficult for local graduates to secure work.

“You have to think about the economics once and awhile,” Prosser said.

Jack Zemlicka can be reached at [email protected].