2010 WI 126
Supreme Court of Wisconsin
In the matter of the petition to
amend or repeal Supreme Court
Rule 40.03, Diploma Privilege.
NOV. 4, 2010
A. John Voelker
Acting Clerk of
On September 28, 2009, Attorney Steven Levine and 71 other members of the State Bar of Wisconsin petitioned this court to amend Supreme Court Rule (SCR) 40.03 by extending diploma privileges to graduates of all ABA-approved law schools, or in the alternative, to repeal SCR 40.03 in its entirety.
The court held a public hearing and administrative conference on September 30, 2010. The court continued to discuss the petition at an administrative conference on October 4, 2010. Upon consideration of the matters presented at the public hearing and submissions made in response to the proposed amendments, the court voted unanimously that the petition to amend or repeal Supreme Court rule 40.03 be denied. IT IS ORDERED the petition is denied.
IT IS ORDERED that notice of this order be given a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
BY THE COURT:
A. John Voelker
Acting Clerk of Supreme Court
¶1 SHIRLEY S. ABRAHAMSON, C.J. (concurring). Neither graduating from law school nor passing a bar examination guarantees that a person will be a competent or trustworthy lawyer. These two methods, although not perfect, are the only ones that have been developed that give some protection to the public, which is a fundamental purpose of educating and licensing lawyers.
¶2 The 50 states should find a way to allow lawyers to practice across state borders without the costs lawyers presently incur. Our 50-state bar admission system should give us pause when we see the European Union, which is made up of 27 different countries with different languages and different legal systems, possibly allowing more cross-border practice than our states do.
¶3 Nevertheless I
would neither abandon nor extend the
¶4 Thirty-two states have granted the diploma privilege at one time
and all but
¶5 I do not, however, favor extending the diploma privilege to all
graduates of all ABA-accredited law schools.
Law schools have varied requirements for entry, for curriculum, and for
grading. Extending the diploma privilege
would place on the Court too great a burden of monitoring the standards of law
schools across the country. We can keep
tabs on the two
¶6 The only alternative suggested to the diploma privilege over these many years has been a bar examination.
¶7 Although I believe the Wisconsin bar examination is as good as any other state's professional qualifying instrument, I have doubts whether bar examinations in general truly measure an applicant's competence to practice law. I am not alone in expressing these doubts.
¶8 In 2002, the Society of American Law Teachers (SALT) issued a "Statement on the Bar Exam," in which it expressed its belief that bar examinations, as currently administered, fail to adequately measure professional competence to practice law.
¶9 The SALT statement asserts that "[t]he bar examination does not even attempt to screen for many of the skills" that a competent lawyer should possess, such as the ability to perform legal research, investigate facts, communicate orally, interact with clients, and negotiate. SALT further criticizes the bar exam's overemphasis on memorizing legal principles, and points out that practitioners who rely on their memory of the law instead of conducting legal research may find themselves subject to disciplinary complaints and malpractice claims.
¶10 In addition to concerns about whether a bar examination actually accomplishes its purpose, I am concerned, as is Attorney Steven Levine, one of the petitioners, about the financial burden bar examinations place on law school graduates from law schools around the country who wish to practice in Wisconsin and on Wisconsin law graduates who wish to practice in other states.
American Bar Association reports that the average amount borrowed by a student
at a public law school for the 2007-08 academic year was $59,324. For private law school students, the average
for that year was $91,506. On top of this debt (and any undergraduate
debt), a law graduate must pay a filing fee to take the exam, which ranges from
$150 to upwards of $1,000. In
¶12 I have searched for a method other than the bar examination or extended diploma privilege to ensure competence and protect the public, and I have not found one. I do suggest, however, that the current admission system of 50 state bar examinations, with varying rules and requirements, might at least be simplified, and perhaps made less costly, through a uniform bar exam. An examinee taking a uniform bar examination in one jurisdiction would receive a score that would be transferrable to other jurisdictions that use the UBE.
¶13 I agree with the resolution adopted by the Conference of Chief Justices on July 28, 2010, Endorsing Consideration of a Uniform Bar Examination, which reads as follows:
Resolution 4: Endorsing Consideration of a Uniform Bar Examination
WHEREAS, the states' highest courts regard an effective system of admission and regulation of the legal profession as an important responsibility for the protection of the public; and
WHEREAS, the increased demand for lawyer mobility results in greater multijurisdictional practice and increased access to admission on motion; and
WHEREAS, the increasing use of uniform, high quality testing instruments has rendered most jurisdictions' bar examinations substantially similar; and
WHEREAS, law is the only major profession that has not developed a uniform licensing examination; and
WHEREAS, a uniform licensing examination for lawyers would facilitate lawyer mobility and enhance protection of the public; and
WHEREAS, state bar admission authorities and state supreme courts would remain responsible for making admission decisions, including establishing character and fitness qualifications and setting passing standards, and enforcing their own rules for admission; and
WHEREAS, issues relating to knowledge of local law can be addressed through a mandatory educational component, a separate assessment, or a combination thereof;
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices urges the bar admission authorities in each state and territory to consider participating in the development and implementation of a uniform bar examination.
¶14 In the interest of protecting the public and law graduates and allowing persons to prosecute or defend their suits by attorneys of their choice, I write separately to urge the Wisconsin Board of Bar Examiners to explore ways of reducing the costs of the Wisconsin bar examination to graduates of law schools outside Wisconsin, to explore the use of a uniform bar examination for graduates of law schools outside Wisconsin, and to be open to new ways of unlocking state borders to competent attorneys.
¶15 I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this concurrence.
 See, e.g., Christine R. Davis, Approaching Reform: The Future of Multijurisdicitonal Practice in Today's Legal Profession, 29 Fla. St. U. L. Rev. 1339, 1357-58 (2002):
[The European Union] model permits lawyers from
any of the EU's . . . member states to cross
jurisdictional borders and practice within another EU
country. . . . The attorney is required only to register in
the member country. . . . The EU adopted this directive
after recognizing the dramatic increase in cross-border activity similar to
that of the
 Beverly Moran, The
Wisconsin Diploma Privilege: Try It,
You'll Like It, 2000
 New State Ice Co. v.
 Society of American Law Teachers Statement on the Bar Exam, 52 J. Legal Educ. 446 (2002).
 American Bar Association, Average Amount Borrowed for Law School 2001-2008, available at http://www.abanet.org/legaled/statistics/charts/stats%20-%2020.pdf (last visited Oct. 25, 2010).
 National Conference of Bar Examiners & American Bar Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2010 35 (2010), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide_2010.pdf (last visited Oct. 25, 2010).
 See Information and Filing Instructions: 2011 Wisconsin Bar Examinations, available at http://wicourts.gov/formdisplay/BE-170.pdf?formNumber=BE-170&formType=Form&formatId=2&language=en (last visited Oct. 25, 2010).
 See, e.g., http://www.barbri.com/wps/portal/barbri/courseInfo/barReviewCourse/pricing?linktype=barbriLink&sitearea=breeze_barbri_library/barbri.com/anonymous%20visitor/WI&pubarea=breeze_barbri_library/barbri.com/anonymous%20visitor/WI&escrightbararea=null (last visited Oct. 25, 2010) (stating $2,625 price for BARBRI's 2010 Wisconsin bar exam review course).
 Susan M. Case, The Uniform Bar Examination: What's In It For Me?, Bar Examiner, Feb. 2010, at 50.
 The Council of the American Bar Association Section of Legal Education and Admissions to the Bar adopted a similar resolution on August 6, 2010 (available at http://www.abajournal.com/files/Uniform_Bar_Exam_2010_Council_(9-14)_v2.pdf (last visited Oct. 25, 2010)).