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 is currently the longest-running state that offers a broad diploma privilege for admission to its state bar. New Hampshire has offered diploma privilege to students that attend the state's only law school since 2005 and the state of Iowa considered reinstating diploma privilege in 2014. 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, JD 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. The idea that the smartest of state will leave Wisconsin for their education or for their career, specifically to nearby Chicago, (The Iowa Bar Association cited similar territorial concerns). Another reason 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 cited that 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 law 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.
Diploma privilege in New Hampshire
- 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
- The program began in 2005, but its first class of students did not graduate until 2008 and the Iowa Bar Association considered reinstating diploma privilege in 2014.
- "Reciprocity, Comity, and Attorneys Exams" (chart), Comprehensive Guide to Bar Admission Requirements 2008 Archived 2008-07-04 at the Wayback Machine., National Conference of Bar Examiners and American Bar Association Section of Legal Education and Admissions to the Bar, 2008, p. 28.
- Steven Levine, "End Separate-But-Equal Bar Admission Archived 2005-11-19 at the Wayback Machine.", Wisconsin Lawyer, Vol. 75, No. 12, December 2002.
- Newman, John. "Fairer ways to stop the lawyer brain drain". desmoinesregister.com. Des Moines Register.
- "IOWA SUPREME COURT CONTEMPLATING DIPLOMA PRIVILEGE". law.marquette.edu. https://law.marquette.edu/facultyblog/2014/01/21/iowa-supreme-court-contemplating-diploma-privilege/. External link in
- 2008 WL 2415459 (W.D. Wis., 2008).
- The Seventh Circuit opinion.
- The program began in 2005, but its first class of students did not graduate until 2008.
- 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[permanent dead link], National Conference of Bar Examiners (2005)