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Attorneys: Admission Upon Diploma to the Wisconsin Bar Richard A Marquette Law Review Volume 58 Article 9 Issue 1 1975 (Number 1) Attorneys: Admission Upon Diploma to the Wisconsin Bar Richard A. Stack Jr. Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Richard A. Stack Jr., Attorneys: Admission Upon Diploma to the Wisconsin Bar, 58 Marq. L. Rev. 109 (1975). Available at: http://scholarship.law.marquette.edu/mulr/vol58/iss1/9 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. COMMENTARY ADMISSION UPON DIPLOMA TO THE WISCONSIN BAR Membership in the bar is a privilege burdened with conditions.' Since the bar was first organized the nature and extent of the "conditions" referred to by Justice Cardozo have been the subject of ongoing debate and controversy. The "conditions" currently imposed by the various jurisdictions for admission to the bar are either a written examination or upon motion to the jurisdiction's highest appellate court. Admission upon motion entails satisfying the jurisdiction's requirements for reciprocity or diploma privilege should either method be recognized. In Wisconsin, all of the above "conditions" for admission to the practice of law are recognized and the authority to evaluate whether an applicant has met the requisites for admission is solely vested in the appellate court.2 The purpose of regulating bar admission is to ensure that courts have the assistance of advocates of ability, learning and sound character as well as to protect the public from incompetent and dishonest practitioners.3 While the purpose of bar admission regu- lation cannot be questioned, the means of assuring that bar mem- bers are of high character and ability frequently occasions lively discussion and periodic re-evaluation of admission practices and procedures.' The dialogue concerning admission procedures has, in many areas, turned into controversy and this is attributable, in no small part, to the increasing number and greater mobility of law gradu- 1. In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917). The Wisconsin Supreme Court has concurred in Lathrop v. Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) stating: "The practice of law is not a right but a privilege subject to regulation." 2. See State ex rel. State Bar v. Keller, 16 Wis. 2d 377, 114 N.W.2d 796 (1961) and Wis. STAT. § 256.28 (1971). 3. Cf Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957). 4. See, e.g., Bingaman, Illinois' Bar Examination: Time for a 75 Year Overhaul, 60 ILL. BAR. J. 129 (1971); Report of the Special Committee on Bar Examination, 51 MICH. BAR J. 724 (Nov., 1972); Steininger, The Diploma Privilege-Recent Developments, 47 WIs. BAR BULL. 14 (April, 1974); Bussey, Bar Examinations: A Black Perspective, NATIONAL BAR EXAMINER 12 (Fall, 1973); Kestin, The Bar Examination: A Trial By Ordeal, NATIONAL BAR EXAMINER 37 (Fall, 1972); Comment, Report of the Pennsylvania Bar Admissions Procedures, 44 TEMPLE L.Q. 146 (1971); 3 American Bar Association Legal Education Newsletter (Oct., 1971). MARQUETTE LAW REVIEW [Vol. 58 ates.5 The pressure of increased applicants has intensified the scru- tiny and re-evaluation of state admission procedures and has led to a "soul searching" among members of the bar concerning just how admissions should be conducted. Evincing the contemporary climate for change in bar admission procedures have been recent proposals for universal diploma privilege, denouncements of bar examinations, the institution of the multi-state bar examination,6 and challenges to the use of limited diploma privilege. The most recent challenge contesting the use of diploma privilege was Huffman v. Montana Supreme Court7 brought in Montana's fed- eral district court. Huffman and its precursor, Goetz v. Harrison,8 were constitu- tional challenges to Montana's admission practice under its "di- ploma privilege" statute.' Both cases challenged this statute which permitted graduates of the state law school admission to the bar without taking the annual bar examination. The petitioners in both cases were residents of Montana who had graduated from out-of- state law schools and were denied admission to the Montana bar by the Montana Supreme Court when they sought to be admitted upon motion. The ensuing suits sought to have the "diploma privi- lege" provision of the Montana Code declared unconstitutional as violative of the Fourteenth Amendment's equal protection clause. The Montana Supreme Court in Goetz held that the admission of graduates of the state law school to the bar without requiring them to take a test is reasonable and did not constitute a denial of equal protection to those who attended out-of-state law schools.10 5. See York and Hale, Too Many Lawyers? The Legal Services Industry: Its Structure and Outlook, 26 J. LEGAL ED. 1 (1973); See also 42 BAR EXAMINER 128 (No. 1, 1973); 38 BAR EXAMINER 108 (No. 3, 1969). Between 1960 and 1972 the law school enrollment has more than doubled. 6. See, e.g., Bell, Do Bar Examinations Serve a Useful Purpose, 57 A.B.A.J. 1215 (Dec., 1971); Gleisner & Bailey, Why is the Bar Examination Necessary?, THE STUDENT LAWYER 6 (Dec., 1973); Griswold, In Praise of Bar Examinations!, 47 FLA. BAR J. 644 (Nov., 1973); Covington, The Multistate Bar Examination Program, 42 BAR EXAMINER 5, 95, 154 (1972); Covington, The Multistate Bar Examination, NATIONAL BAR EXAMINER 9 (Fall, 1972); Covington, The Multistate Bar Examination, NATIONAL BAR EXAMINER 18 (Fall, 1973); Pock, The Case Against the Objective Multistate Bar Examination, 25 J. LEGAL ED. 66 (1966); Comment, Admission to the Pennsylvania Bar: The Needfor Sweep- ing Change, 118 U. PA. L. REv. 945 (1970). 7. 372 F. Supp. 1175 (D.C. Mont., 1974). The petitioner exercised his automatic right of appeal to the United States Supreme Court and in a summary action the Court affirmed without consideration on the merits. 43 Law Week 3247 (Oct. 29, 1974). 8. 154 Mont. 274, 462 P.2d 891 (1969). 9. REV. C. MONT. § 93-2002 (1947). In addition to Montana and Wisconsin, West Virginia and Mississippi are the only other jurisdictions that allow admission upon diploma. 10. The court noted, inter alia, that the standards of both pre-legal and legal study are 1974] COMMENTARY Huffman, a case of first impression in the federal courts, pre- sented a similar issue regarding the criteria a state may adopt for admission to the bar. James L. Huffman, a Montana resident and graduate of the University of Chicago Law School, after being denied admission on motion to the Montana bar, brought this action in the United States District Court for Montana challenging the constitutionality of Montana's diploma privilege statute. A three judge panel was convened and considered Huffman's request to restrain the defendant Montana Supreme Court from imple- menting that portion of section 93-2002, Revised Codes of Mon- tana, which excepts Montana graduates from taking the bar exam- ination. Further relief was sought in the form of a mandatory injunction ordering the Montana Supreme Court to admit the peti- tioner to the bar upon motion. In sum, the district court was urged to declare Montana's statutorily enacted "diploma privilege" vio- lative of the equal protection clause of the Fourteenth Amendment. The court, in a two-one decision, found no arbitrary classification created by the statute working to deny the petitioner equal protec- tion under the law. The court held that the classification inherent in the Montana statute, which necessarily distinguishes between those attending the state law school and those who don't, could not be considered a "suspect" classification. The court also failed to find interference with the petitioner's "fundamental rights" as freedom of speech, right to vote and of interstate travel. The issue the court felt com- pelled to determine was whether there existed any rational justifi- cation for the existence of the diploma privilege in Montana." The court reasoned that the object of the classification under scrutiny created by 93-2002, R.C.M., is to ensure that the courts and people of Montana are represented by attorneys of sound ethical charac- ter and competent legal skills. After delineating the curriculum at the University of Montana Law School and noting the Montana higher for graduates of the Montana Law School than required of the applicants for the bar examination and that the small size of the school and its proximity to the Montana Supreme Court allow the justices to personally gauge the school's graduates. 154 Mont. at -, 462 P.2d at 895. 11. The court relied upon Schware v. Board of Bar Examiners, 353 U.S. 232, 239 wherein the high court stated: A state can require high standards of qualifications, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualifica- tion must have a rational connection with the applicant's fitness or capacity to practice law. MARQUETTE LAW REVIEW [Vol. 58 Supreme Court's supervision of the school, the court went on to say that "this classification is reasonably related to the object of ' 2 ensuring a competent and ethical bar."' In his dissenting opinion Judge East seized upon the asserted inhibition of the petitioner's "fundamental right" to interstate travel as his basis for calling the diploma privilege unconstitu- tional. Judge East reasoned as follows: • .* [Sbo here the requirement of the Bar examination is a state imposed burden upon the plaintiff's exercise of his right to fully travel to Montana and receive equal treatment with other resi- dents in like standing under the laws of that state.
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