Comments of the Wisconsin Supreme Court Concerning the Interim Report of the Commission on Multijurisdictional Practice - Center for Professional Responsibility

John A. Holtaway
ABA Center for Professional Responsibility
Floor 541 N. Fairbanks Court, 14th
Chicago, IL 60611

Re: Comments of the Wisconsin Supreme Court
Concerning the Interim Report of the Commission
on Multijurisdictional Practice

Dear Mr. Holtaway and Members of the Commission:

I write on behalf of the Wisconsin Supreme Court to comment on the proposed model rule governing "Admission on Motion" presently under consideration by the American Bar Association's Commission on Multijurisdictional Practice (the "Commission"). The Wisconsin Supreme Court is the State's highest court and is responsible for overseeing the Bar in this State.

We join with the State Bar of Wisconsin in expressing our deep concern about the adverse impact the proposed "Admission on Motion" rule would have on Wisconsin lawyers. See ABA Interim Report of the Commission on Multijurisdictional Practice (Nov. 2001), Recommendation 4, page 30; Appendix K at 78-79 (hereinafter, "Report"). See also Memorandum from George C. Brown, Executive Director of the State Bar of Wisconsin to Commission, dated July 19, 2001; Testimony of Gerald Mowris, President, State Bar of Wisconsin, Transcript of Public Hearing Conducted August 3, 2001 in Chicago, Illinois, at 46-51.

As the Commission is aware, Wisconsin recognizes a "diploma privilege" pursuant to Wis. SCR 40.03, whereby graduates of this state's two ABA-accredited law schools may be admitted to practice law without taking the State's Bar examination. Report at 13. As currently drafted, the proposed model rule refers solely to admission by Bar examination and also requires a passing score on the Multistate Professional Responsibility Examination. It does not provide reciprocal credit for Wisconsin's diploma privilege.

Thus, as written, the proposed rule would severely disadvantage Wisconsin lawyers who seek to move their legal practice beyond Wisconsin's borders. Indeed, the proposed rule would preclude approximately 90 percent of Wisconsin attorneys from the ability to be admitted by motion in sister states.

The proposal moves in the wrong direction. Currently, lawyers who are admitted under the diploma privilege in Wisconsin can be admitted on motion to most other jurisdictions. Of the states that permit admission by motion, only four states require that the movant have taken a Bar examination. Those states are Ohio, Tennessee, Alaska and Wyoming.l It is simply incorrect to assert that the majority of states require passage of a Bar exam for admission on motion.

We join the council of the Section of Legal Education and Admissions to the Bar seeking revision to the proposed model rule. We recommend the Commission amend the proposed model rule governing Admission on Motion so that it will encompass lawyers admitted to practice pursuant to Wisconsin's diploma privilege. Specifically, we propose that subdivision (a) and subdivision (d) of the proposed model rule be amended as follows:

1 Ohio adopted its rule to prohibit neighboring West

Virginia lawyers who were admitted pursuant to the diploma privilege from practicing in that state. Wyoming adopted the Ohio rule without revision. Tennessee adopted its rule to prohibit lawyers from Mississippi who were admitted pursuant to the diploma privilege from practicing in that state. We do not know why Alaska adopted its rule.

and

(a) Have been admitted by Bar examination or by or diploma privilege to practice law in another state, territory, or the District of Columbia;

or

(a) Have been admitted to practice law in another state, territory, or the District of Columbia;

and

(d) Submit evidence of a passing score on the Multistate Professional Responsibility Examination as it is established in this jurisdiction unless the candidate was admitted pursuant to the diploma privilege in a state that does not require the Multistate Professional Responsibility Examination.

Amending the proposed model rule to encompass Wisconsin attorneys who are admitted pursuant to the diploma privilege is consistent with the Commission's stated intention to affirm its support for the principle of state judicial licensing and regulation of lawyers. See Recommendation 1, Report at 18. It is also consistent with the Commission's Recommendation No. 4, that the ABA endorse a model "admission on motion" rule to "facilitate the licensing of a lawyer by a host state if the lawyer has been engaged in active law practice in other United States jurisdictions for a significant period of time." See Recommendation 4 at page 30. Indeed, a failure to acknowledge and encompass Wisconsin's diploma privilege in the proposed model rule governing Admission by Motion would be arbitrarily and unfairly detrimental to Wisconsin lawyers and at odds with the Commission's goal of fostering multij urisidictional practice. As written, the proposed rule could subject licensed and experienced lawyers who seek to move their legal practice outside the State of Wisconsin to an expensive, burdensome and previously unnecessary requirement of taking a Bar examination.

We recognize that a diploma privilege is currently the exception to the general rule that admission to a state Bar requires completion of a Bar examination. 2 However, the diploma privilege is an integral and long-standing part of Wisconsin's legal tradition. Our diploma privilege is rigorously managed and succeeds in its goal of maintaining a qualified Bar.

Wisconsin formally adopted the diploma privilege in 1870, as part of the same legislation that created the Law Department at the University of Wisconsin Law School. Wisconsin currently has two outstanding law schools, the University of Wisconsin and Marquette University, both of which are ABA accredited. 3 Candidates seeking admission to the Wisconsin Bar pursuant to the diploma privilege must comply with a "30-credit rule" as well as a "60-credit rule." Under the 30-credit rule, law students must take ten specific courses and achieve a grade point average of at least 77. Under the 60-credit rule, law students must take at least 60 of their law school credits in 30 subject areas, again achieving at least a 77 grade point average. Thus, the diploma privilege `directly enforces what the Bar examination indirectly enforces: that students take certain courses." See Beverly Moran, The Wisconsin Diploma Privilege: Try it, You'll Like It, 2000 Wis. L. Rev. 645, 648-49. Indeed, Wisconsin is considered to have the "most restrictive diploma privilege statute ever written." See Thomas W. Goldman, Use of the Diploma Privilege in the United States, 10 Tulsa L.J. 36, 42 (1974)

Wisconsin lawyers also benefit from the close relationship between members of the judiciary, the Bar, the legislature and the law schools that results, in part, from administration of the diploma privilege. Representatives of each law school are members of the Board of Bar Examiners and law faculty are always among those who grade the Wisconsin Bar Exam. Applicants for admission to the

2 At one time 32 states and the District of Columbia had the diploma privilege. Wisconsin is currently the only state to have a diploma requirement.

3 The diploma privilege was extended to Marquette graduates in 1933.

Bar pursuant to the diploma privilege are also subjected to a rigorous character and fitness investigation by the Board of Bar Examiners.

The success of Wisconsin's rigorous system is confirmed when Wisconsin law school graduates take Bar exams in other states. For example, Marquette graduates routinely do better on the Illinois Bar exam (the state Bar exam taken by the most significant number of Wisconsin law graduates) than many graduates of the law schools in that state. See Moran supra at 651. Wisconsin students taking the Bar exam for the first time had a 96 percent pass rate on the Illinois Bar exam for the Summer 1996-Winter 1997 exam and a 91 percent pass rate for Summer 1997-Winter 1998

exam. Id. In July 1997, 12 Wisconsin graduates took the California Bar exam, generally acknowledged as one of the most difficult in the country, and ten obtained passing scores. Id. Thus, Wisconsin law students' records of Bar passage in other states support our view that the diploma privilege produces a qualified Bar. Id.

We urge the Commission to amend the proposed model rule governing Admission on Motion to include lawyers who were admitted to practice pursuant to Wisconsin's diploma privilege.

Thank you for considering this request. Should the Committee require additional information regarding this matter, please contact me.

Sincerely yours,

Shirley S. Abrahamson
Chief Justice

CC: George Brown, Director, State Bar of Wisconsin

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