The Wisconsin diploma privilege: Are its days numbered?

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Until about the mid-1870’s—most aspiring lawyers did not attend law school and did not take a bar examination.

Instead, they gained their education and experience through a practice known as “reading the law”; extended apprenticeships under experienced lawyers and judges. Their credentials were earned through oral examinations offered by the states, frequently performed in front of a judge in the district where the lawyer wished to be licensed. The first written bar examination in America did not appear until Massachusetts administered one in 1855.

The oral exams which preceded today’s written exams were much less stressful than the modern three-day examinations. During his oral exam, former Louisiana governor, Huey P. Long, was questioned by George Terriberry, an admiralty practitioner, what he knew about admiralty. He replied that he knew nothing. When further queried about how he would handle a matter involving admiralty law, Long responded that he would associate Mr. Terriberry and divide the fee with him. He passed.

Today, not all states require that an aspiring lawyer attend law school. California, Virginia, Vermont and Washington allow aspiring “law students” to simply “read the law” and take a bar exam without attending any law school at all. Kim Kardashian is now doing this. New York, Maine and Wyoming require prospective lawyers to study in a law office combined with abbreviated law-school study. New York’s Rule 520.4 of the Rules of the Court of Appeals requires only that the applicant complete the first year of law school and have a combined four years of law school and study at a law firm in New York.

New lawyers throughout the country were not always required to take a bar exam. Like most other states, Wisconsin originally allowed lawyers to practice law if they were a resident and had good moral character. Admission was open to all regardless of training. Such universal access was replaced by a requirement of a short oral examination by a circuit judge. Such examinations, however, were hardly a rigorous or effective method of ascertaining if a candidate was qualified to practice law. A young Illinois lawyer recalled being “examined” by Abraham Lincoln as Lincoln lounged in a bathtub:

He asked me in a desultory way the definition of a contract, and two or three fundamental questions, all of which I answered readily, and I thought, correctly. Beyond these meager inquiries. . .he asked nothing more. As he continued his toilet, he entertained me with recollections-many of them characteristically vivid and racy-of his early practice and the various incidents and adventures that attended his start in the profession. The whole proceeding was so unusual and queer, if not grotesque, that I was at a loss to determine whether I was really being examined at all.

As to the necessity of taking a bar exam, at one point thirty-two states allowed for a diploma privilege—automatic licensure in a state in which you attend law school. The diploma privilege practice was exercised in three distinct ways:

(1) universal diploma privilege: the state admitted anyone who had a diploma from any U.S. law school;
(2) state-wide diploma privilege: a graduate of any school within the state was admitted to practice in that state; and
(3) state university diploma privilege: only graduates of the state’s law schools (non-private) were permitted to practice without further examination.

As we entered the 20th Century, complaints and objections about the diploma privilege practice began to mount. There were concerns about the lack of education uniformity and the time given to study from law school to law school. Others believed that the practice discriminated against in-state residents who studied at out-of-state law schools. And of course, there was the refrain that bar examinations produced a higher caliber attorney. One by one, these states dropped the diploma privilege; California (1917), Mississippi (1981), Montana (1983), South Dakota (1983), and West Virginia (1988) being the most recent. The diploma privilege in Wisconsin dates to 1870. Today, Wisconsin stands alone as the only state which still employs it. If you successfully graduate from either of its two law schools (Marquette University or University of Wisconsin Law School) you are automatically licensed to practice law in that state.

I graduated from Marquette University Law School and was licensed to practice law without the need to take a bar exam. I later passed the Texas Bar exam and now practice law in Austin, Texas. But Wisconsin’s diploma privilege always struck me as an oddity. I knew of one young woman in my law school class who failed Trusts & Estates five times but graduated from law school and received her law license. Today she is a practicing attorney in the area of Estate Planning.

Wisconsin residents who graduate from of out-of-state law schools must still take the Wisconsin bar exam to be admitted in Wisconsin. Likewise, many states do not grant reciprocal admission for attorneys who obtained their Wisconsin bar admission through the diploma privilege, regardless how long they have been practicing.

In 2008, graduates of accredited out-of-state law schools who wanted to practice law in Wisconsin filed a class action lawsuit against the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, arguing that Wisconsin’s diploma privilege was a violation of the commerce clause of Article I of the U.S. Constitution. The argument in Wiesmueller v. Kosobucki was the practice discriminated against graduates of accredited law schools in states other than Wisconsin who would like to practice law in that state. The plaintiffs asserted that the diploma privilege violated the U.S. Constitution’s dormant commerce clause , which prohibits a state from discriminating against similarly situated articles of commerce simply because they come from outside the state. The case settled for a nominal amount when the lead attorney realized that all it would accomplish is to force everyone to take the bar exam, which he said was not his original objective.

Shortly thereafter, a petition was filed with the Wisconsin Supreme Court by Atty. Steven Levine, a past State Bar of Wisconsin president, and 70 other State Bar members aims to extend the “diploma privilege” to graduates of all ABA-approved law schools or abolish it entirely by amending SCR 40.03 to remove the words “in this state” wherever they appear in the rule. Levine called the rule “unfair and discriminatory.” He noted that the percentage of State Bar members who graduated from out-of-state schools is growing from the current 37.5 percent and could reach 50 percent. But old habits die hard. On October 4, 2010, the Supreme Court ended debate on the issue and unanimously decided to retain the rule unchanged. Thus, Wisconsin remains the only state with a diploma privilege.

Wisconsin’s diploma privilege was attacked on its flank in 2001 when the American Bar Association (ABA) considered a proposed model rule governing “Admission on Motion.” States such as Illinois, Massachusetts, Minnesota, Ohio, Tennessee, Texas, Wisconsin and the District of Columbia, allow admission on motion of an attorney licensed in any state in lieu of taking their own bar examination, without the need to show reciprocity. The proposed rule referred only to admission by bar examination and did not provide reciprocal credit for Wisconsin’s diploma privilege. Despite a tinge of hypocrisy, the Wisconsin Supreme Court complained that the model rule would “severely disadvantage Wisconsin lawyers who seek to move their legal practice beyond Wisconsin’s borders.” Ohio, for example, requires a bar examination to be admitted on motion because it wants to prevent movants from West Virginia, its diploma privilege-practicing neighbor to the west, from practicing in Ohio without ever having taken a bar examination.

A new development in state bar examinations may soon present another new challenge to Wisconsin’s diploma privilege rule. The Uniform Bar Examination (UBE) appeared on the horizon shortly after the Wiesmueller case was resolved. The UBE is a standardized bar exam created by the National Conference of Bar Examiners (NCBE). It is designed to test knowledge and skills that every lawyer should have before becoming licensed to practice law. At first, only two states administered it. Now, over half of all states and jurisdictions within the U.S. administer the UBE, and that number is growing rapidly every year.

The original purpose of Wisconsin’s diploma privilege was to encourage future lawyers to get a formal legal education instead of simply “reading law,” which was the typical legal training of the time. Wisconsin has not adopted the UBE. In our inter-state and international legal community, most law is now being practiced electronically and via Zoom. Perhaps it is time for Wisconsin to end its 152-year holdout and join the fold by abolishing the diploma privilege and adopting the UBE. Rigorous bar exams remain better than law schools at creating lawyers and weeding out those who have flunked law school classes multiple times. American does not need more lawyers; they need better ones.