The bar exam. Who needs it?

(Reuters) - As thousands of would-be attorneys anxiously await their scores after slogging through last week’s bar exam, law grads in Wisconsin are already beginning their careers as full-fledged attorneys, blithely unburdened by the need to pass a test.

The only state in the nation that still offers “diploma privilege,” Wisconsin allows people who graduated from either of the state’s two law schools -- University of Wisconsin Law School or Marquette University Law School – to skip the bar, provided they successfully completed specific law school classes.

“We have a good thing going in Wisconsin,” Margaret Hickey, president of the state bar association, told me.

I think she may be right.

Twitter these days is full of people denouncing the bar exam as “a hazing device,” “an unbelievable waste of time,” “a test of resources, not competence” and “a gatekeeping mechanism that does nothing to protect the public from bad lawyers,” to quote just a few of the comments tagged #abolishthebar.

A task force established by the New York State Bar Association in 2019 has also criticized the test, calling it “arbitrary and unfair” in a report last year.

The National Conference of Bar Examiners, which develops the nationwide test, responded to the report by saying that the purpose of the exam is to protect the public with a "consistent assessment" of whether test-takers know the basics in order to practice law. As my colleague Karen Sloan has reported, the nonprofit corporation is in the process of revamping the exam to place more emphasis on legal skills and less on the memorization of doctrinal law.

NCBE spokesperson Sophie Martin in an email pointed out that many high-stakes professions, including engineering, medicine and aviation also rely on licensure examinations to make sure new entrants meet basic standards.

The bar exam provides “reliable test of minimum competence to practice law,” she said in the email.

That’s certainly laudable. We all want minimally competent lawyers. Still, a new article by Texas A&M University School of Law professor Milan Markovic offers some hard data about diploma privilege in Wisconsin that suggests we don’t need a bar exam to get there.

Published in the Georgetown Journal of Legal Ethics last month, the paper compares complaints against attorneys in Wisconsin versus the country as a whole.

If bar exams really do protect the public by screening out incompetent practitioners, Markovic wrote, “one would expect to see either higher rates of complaints or charges against Wisconsin attorneys, most of whom did not sit for bar exams.”

Granted, it’s an imperfect measure. As he notes, lack of competence is not a major cause of attorney misconduct complaints, which tend to be related to communication, diligence, safekeeping of client property, fees and conflicts of interest.

Still, he argues that a central rationale underlying the exam is public protection, and it’s not clear that’s what it provides.

Markovic dug into data from 2015 to 2017 in the annual Survey on Lawyer Discipline Systems conducted by the ABA’s Center for Professional Responsibility.

He found that Arizona attorneys had the highest number of unhappy clients, with 17.8 yearly complaints per 100 lawyers. Lawyers in Delaware had the fewest complaints, with 4.2 per 100.

Wisconsin sat squarely in the middle, with 7.4 yearly complaints per 100 lawyers, which suggests that lawyers admitted via diploma privilege are no more likely to be subject to complaints about bad lawyering than those who passed a bar exam.

Of course, not every lawyer practicing in Wisconsin was admitted under diploma privilege. Those who went to out-of-state law schools have to pass the bar to practice there.

So Markovic looked at all public disciplinary decisions within Wisconsin from 2005 to 2019 to see if lawyers admitted by diploma privilege were more likely to get in trouble than those who passed the bar.

Nope.

He found that 62.9% of lawyers in Wisconsin were admitted via diploma privilege. Those lawyers triggered 62% of disciplinary cases -- which means they’re actually slightly less likely to behave badly than their in-state counterparts who passed the bar.

“I find no evidence that the bar exam affects attorney misconduct,” he wrote.

In an interview, Markovic told me that when he started his research, he was “open to keeping the bar exam.”

But his results have given him pause.

“The debate for too long has been, ‘Does the bar test the right things?’” he said. “To me, we should focus more on first principles: What do we expect the bar exam to do that law schools are not? We need to re-think the whole way we license attorneys.”

That’s not to say diploma privilege is a panacea though.

State bar president Hickey said it works in Wisconsin in part because the state has just two law schools, both held in high esteem by practitioners, with close oversight by the state supreme court. “It would be much harder in a huge state like California,” she said.

From Wisconsin’s point of view, Hickey added, the “primary benefit” of diploma privilege is that it incentivizes its law school graduates to stay and practice there.

As a native Wisconsinite, I can attest that the state has much to recommend it (Cheese curds! Beer! Badgers football!) – but I also don’t live there anymore.

Ambitious lawyers (or those who get tired of winters that last seven months) face a roadblock if they want to move out of state. As Martin of the NCBE notes, diploma privilege “allows for local admission only, meaning that it would negatively affect the lawyer mobility that is one of the benefits of the Uniform Bar Exam.”

She also stressed that in the end, “the decision about whether a jurisdiction implements diploma privilege is not NCBE’s to make.”

Instead, it’s the responsibility of each state’s high court. As Markovic’s research shows, Wisconsin offers a model for leaving the exam behind.

Our Standards: The Thomson Reuters Trust Principles.