Diploma privilege

In the United States, the diploma privilege is a method for lawyers to be admitted to the bar without taking a bar examination. Once used by as many as 32 U.S. states and the District of Columbia, Wisconsin has the longest-running diploma privilege for admission to its state bar. The state of Iowa considered reinstating diploma privilege in 2014. The state of New Hampshire does not have diploma privilege, but its only law school has an alternative licensing program called the Daniel Webster Honors Program that allows a limited number of students who have completed certain curricula and a separate exam to bypass the regular bar exam.[1] Originally used as a method to foster the growth of formal legal education, the privilege started to fall into disuse early in the 20th century, in common with the tightening of requirements in other learned professions. The privilege was abolished in California in 1917. Most recently, West Virginia did away with the privilege in 1988, preceded by Montana and South Dakota in 1983 and Mississippi in 1981.

In 25 states, attorneys who were initially admitted to practice by another state's diploma privilege are eligible for admission to the state bar on motion of the admission committee.

Diploma privilege in Wisconsin

In Wisconsin, J.D. graduates of the two American Bar Association-accredited law schools in the state (Marquette University Law School and the University of Wisconsin Law School) may seek admission to the State Bar of Wisconsin without having to sit for a bar examination. (LLM and SJD graduates of these law schools are not eligible for diploma privilege.)

The diploma privilege in Wisconsin dates to 1870, when it was passed by the Wisconsin State Legislature in the same legislation that established the University of Wisconsin Law School. At that time a law department was established in the State University and a course of study under able instructors was prescribed for students in the law department. The 1870 law provided that graduates of this department should be entitled to admission to the bar upon their certificate of graduation—that is, their law degree. It was offered to encourage future lawyers to get a formal legal education instead of simply "reading law," which was the typical legal training of the time. This has ever since been known as "diploma privilege."

Graduates of out-of-state law schools, even if they are Wisconsin residents, must still take the Wisconsin bar exam to be admitted in Wisconsin. Likewise, graduates of Wisconsin law schools must take the bar exam in many other states in which they are going to practice. A number of U.S. states do not grant reciprocal admission for attorneys who obtained their bar admission through the diploma privilege, requiring those attorneys to take that state's bar exam, regardless of the length of that attorney's practice. The policy reasoning behind diploma privilege is to incentivize Wisconsin residents to attend in-state law schools and to keep Wisconsin residents working in-state. Another policy consideration is preventing "brain drain" in Wisconsin. This theory holds that without the diploma privilege, the smartest from the state will leave Wisconsin for their education or for their career, specifically to nearby Chicago, (The Iowa Bar Association cited similar territorial concerns). Another advantage is that state of Wisconsin subsidizes in-state resident tuition for law students, and therefore incentives them to stay to retain the state's educational investment. It is also claimed that the diploma privilege helps keep youth in Wisconsin.

In Wiesmueller v. Kosobucki, a class action lawsuit certified in the United States District Court for the Western District of Wisconsin in June 2008, the petitioners assert that the Wisconsin diploma privilege discriminates against interstate commerce in violation of the U.S. Constitution's Commerce Clause because it affords a diploma privilege in lieu of a bar examination only to lawyers graduating from Wisconsin's law schools. The suit sought injunctive relief to expand the privilege to all applicants to the Wisconsin Bar who obtain a J.D. degree from any school accredited by the American Bar Association. The district court subsequently dismissed the case for failure to state a cause of action.

On July 9, 2009, the Seventh Circuit reversed the district court's dismissal of the case, saying "we find ourselves in an evidentiary vacuum created by the early termination of the case," and remanded the case to the district court.

Renewed Interest in Diploma Privilege During the COVID-19 Pandemic

In March of 2020, during the COVID-19 pandemic, New York became the first state to announce postponement of its July 2020 bar examination. Bar exams are traditionally offered every February and July, and are administered in large conference rooms and auditoriums. Because serious questions existed around the possibility of a second-wave of COVID-19 during the fall, several states followed New York in cancelling or postponing their bar examinations. Legal scholars Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea A. Curcio, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Merritt, Patricia E. Salkin, Judith Welch Wegner, who study licensure, circulated a white paper identifying six options that state bars could implement for the July 2020 bar exam.

Students in the state of New York were the first to petition for diploma privilege. Shortly thereafter, California organizers followed suit. Two third-year law students--Dr. Pilar Margarita Hernández Escontrías of the University of California, Irvine School of Law, and Donna Saadati-Soto of Harvard Law School--authored a petition to the California Supreme Court and State Bar of California requesting emergency diploma privilege for all July 2020 bar exam takers. Hernández Escontrías and Saadati-Soto also created a sample template so that organizers and student groups in other states could mobilize for diploma privilege licensure. Washington used this template in its successful petitioning of diploma privilege. In addition, numerous law professors and law students wrote op-eds on diploma privilege.

States have had different approaches to how they will administer their bar exams during the COVID-19 pandemic. Some states, like Kentucky, will hold in-person bar exams in July 2020. The National Conference of Bar Examiners (NCBE), which is the entity that writes the Uniform Bar Exam (MBE, MEE, and MPT), announced that it would write additional questions for two additional 2020 administrations: early September and late September. Several states then opted to postpone their bar exams to September 2020. Others, like California, have opted to hold online bar exams. Maryland and Washington, D.C. have both postponed their bar exams to September, and then postponed again to October. NCBE came out in opposition of diploma privilege in a white paper, in which it argued that bar exams ensure lawyer competency. Legal outlets then criticized NCBE's white paper, namely because NCBE's president, Judith Gundersen, is a recipient of diploma privilege herself and has never passed a bar exam.

In April of 2020, the Utah became the first state to grant diploma privilege to its July 2020 bar exam takers. The Utah Supreme Court granted diploma privilege to all individuals who were registered for the UT July 2020 bar examination and graduated from an American Bar Association-accredited law school with a bar passage rate at or above 86%.

In June of 2020, Washington became the second state to grant diploma privilege to its July 2020 bar exam takers. The Washington Supreme Court granted diploma privilege to all individuals who were registered for the WA September 2020 bar exam and graduated from an ABA-accredited law school. The Washington Supreme Court gave individuals the option to either opt for diploma privilege, or take the September 2020 bar exam to get a Uniform Bar Exam score. Reports have emerged that some Washington legal employers will not accept 2020 graduates that opted for diploma privilege.

Organizers for diploma privilege during the COVID-19 pandemic run a Twitter account where they regularly update their followers on the summer 2020 bar exams.

External links

• Letter from Wisconsin Chief Justice Shirley S. Abrahamson to the ABA Center for Professional Responsibility
• Some opinions about the diploma privilege from the Wisconsin Lawyer magazine…
• ...and some more.
• The Daniel Webster Scholar Honors Program at the University of New Hampshire School of Law (formerly Franklin Pierce Law Center), whose graduates receive diploma privilege in New Hampshire

External links

• Moran, Beverly. The Wisconsin Diploma Privilege: Try It, You’ll Like It, 2000 Wis. L. Rev. 645 (2000).
• Wisconsin Supreme Court Rules, Chapter 40, relating to bar admission
• Reed, Alfred Zantzinger. Training for the Public Profession of the Law (Foundation 1921) pp. 266 (noting the abolition of the diploma privilege in California).
• In re Yanni, 2005 SD 59, ¶ 13, 697 N.W.2d 394, 399 (describing the privilege's abolition in S.D.)
• Essays on Other Lawyers Licensing Processes and Alternatives to the Bar Examination, National Conference of Bar Examiners (2005)