Protecting the Guild or Protecting the Public? Bar Exams and the Diploma Privilege

• Author: Milan Markovic
• Position: Professor of Law and Presidential Impact Fellow, Texas A&M University School of Law
• Pages: 163-202

ARTICLES

Protecting the Guild or Protecting the Public? Bar

Exams and the Diploma Privilege

MILAN MARKOVIC*

ABSTRACT

The bar examination has long loomed over legal education. Although many

states formerly admitted law school graduates into legal practice via the

diploma privilege, Wisconsin is the only state that recognizes the privilege

today. The bar exam is so central to the attorney admissions process that all but

a handful of jurisdictions required it amidst a pandemic that turned bar exam

administration into a life-or-death matter.

In this Article, I analyze the diploma privilege from a historical and empiri-

cal perspective. Whereas courts and regulators maintain that bar exams screen

out incompetent practitioners, the legal profession formerly placed little empha-

sis on bar exams and viewed them as superfluous for graduates of accredited law

schools. The organized bar turned against the diploma privilege as the legal pro-

fession began to diversify, and some states abolished the diploma privilege spe-

cifically to block Black law students from the profession. The notion that bar

exams ensure a base level of competence is a relatively recent construct.

A few studies have suggested that attorneys who struggle on the bar exam

are more likely to commit misconduct. However, drawing on cross-state attor-

ney complaint and charge data as well as Wisconsin attorney disciplinary

cases, I demonstrate that the bar exam requirement has no effect on attorney

misconduct. The complaint rate against Wisconsin attorneys is similar to that of

other jurisdictions, and Wisconsin attorneys are charged with misconduct less

often than attorneys in most other states. Moreover, the rate of public discipline

against Wisconsin attorneys who were admitted via the diploma privilege is the

same as that of Wisconsin attorneys admitted via bar exams.

Bar exams as currently constituted do little to advance public protection. A care-

fully drafted and enacted diploma privilege would comply with the Constitution’s

* Professor of Law and Presidential Impact Fellow, Texas A&M University School of Law. The author

would like to thank Meina Heydari and Alexia Nicoloulias for their research assistance. Rob Anderson, Darren

Bush, Elizabeth Chambliss, Derek Muller, Susan Fortney, Gabriele Plickert, and Peter Yu provided valuable

insights. © 2022, Milan Markovic.

163

Dormant Commerce Clause and would incentivize law schools to better prepare

students for practice. States also have more direct means to address attorney mis-

conduct than relying on ex ante measures such as bar exams.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

I. BAR EXAMS AND THE RISE AND FALL OF THE DIPLOMA

PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

II. BAR EXAMS AND ATTORNEY MISCONDUCT . . . . . . . . . . . . . . . 174

III. DISCIPLINARY DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

A. CROSS-STATE DISCIPLINARY DATA . . . . . . . . . . . . . . . . . 181

B. WISCONSIN DISCIPLINARY DECISIONS . . . . . . . . . . . . . . . 190

IV. A TWENTY-FIRST CENTURY DIPLOMA PRIVILEGE?. . . . . . . . . 192

A. RECONSTITUTING THE DIPLOMA PRIVILEGE . . . . . . . . . . 192

B. POLICING LAW SCHOOLS . . . . . . . . . . . . . . . . . . . . . . . . . 198

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

INTRODUCTION

Perhaps no rite of passage is as reviled as the bar examination. Every year, tens

of thousands of freshly minted law school graduates pour into convention centers

and lecture halls to begin a two- or three-day ordeal that has little relation to any

task that they will perform in legal practice. Most will pass on their first attempts.

Others on subsequent attempts. However, for a small minority, the bar exam will

prove to be an insurmountable barrier.

1

U.S. bar exams date to the post-colonial period when lawyers were subjected

to few educational requirements.

2

Early iterations of bar exams were “brief,

1. See Jane Yakowitz, Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar

Exam, 60 J. LEGAL EDUC. 3, 16–17 (2010). See generally Linda F. Wightman, LSAC NATIONAL

LONGITUDINAL BAR PASSAGE STUDY 31 (1998) (estimating that only five percent of graduates from ABA-

accredited law schools sit for the bar exam and never pass it). Including graduates of non-ABA accredited law

schools leads to higher estimates. Id. at 14.

2. RICHARD ABEL, AMERICAN LAWYERS 51–52 (1989); see, e.g., Daniel Hansen, Do We Need the Bar

Exam? A Critical Evaluation of the Justifications for the Bar Exam and Proposed Alternatives, 45 CASE W.

RSRV. L. REV. 1191, 1194 (1995).

164 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:163

perfunctory, and oral.”

3

Abraham Lincoln once administered an Illinois candi-

date’s bar exam while drawing a bath.

4

Aspiring lawyers could avoid the bar

exam entirely by clerking in a law office.

5

The bar exam is no longer an informal affair. The National Conference of Bar

Examiners (NCBE) produces a three-part written exam consisting of the multi-

state bar exam (MBE), the multistate essay exam (MEE), and the multistate per-

formance test (MPT).

6

The Uniform Bar Exam (UBE), which has been adopted

by thirty-six states, is a compilation of these exams.

7

All jurisdictions except for

Louisiana require at least the MBE.

8

Aspiring lawyers must also generally complete four years of college and grad-

uate from an American Bar Association (ABA)-accredited law school to sit for

the bar exam.

9

Although thirty-two states and the District of Columbia formerly

admitted graduates of certain law schools into practice without bar exams,

10

Wisconsin is the only state that currently recognizes the “diploma privilege.”

11

Despite jurisdictions’ longstanding embrace of bar exams, critics have long

questioned their utility.

12

Since the content of bar exams overlaps with what has

been taught in law school, they are arguably a useless extra expense.

13

Bar exams

also test general legal knowledge in an era of rampant attorney specialization

14

and place inordinate emphasis on speed and memorization, skills upon which

attorneys should rarely rely in practice.

15

Many core lawyer functions such as oral

3. ABEL, supra note 2, at 5.

4. Hansen, supra note 2, at 1196 (citation omitted).

5. Id. at 1194–95.

6. Marsha Griggs, Building A Better Bar Exam, 7 TEX. A&M L. REV. 1, 14–15 (2019).

7. Id. at 3.

8. Id. at 14.

9. Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for

Entry and Conduct Regulation, 33 ARIZ. ST. L.J. 429, 431 (2001); Robert M. Jarvis, An Anecdotal History of

the Bar Exam, 9 GEO. J. LEGAL ETHICS 359, 359 (1996).

10. Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol Chomsky, Andrea A. Curcio, Marsha Griggs,

Joan W. Howarth, Eileen Kaufman, Deborah Jones Merritt, Patricia E. Salkin & Judith Wegner, Diploma

Privilege, and the Constitution, 73 S.M.U. L. REV. F. 168, 170 (2020); see Thomas W. Goldman, Use of the

Diploma Privilege in the United States, 10 TULSA L.J. 36, 39 (1974).

11. For an excellent discussion of Wisconsin’s program, see Beverly Moran, The Wisconsin Diploma

Privilege: Try It, You’ll Like It, 2000 WIS. L. REV. 645 (2000). New Hampshire recently created an exception

for the small number of attorneys who complete the Daniel Webster program at the University of New

Hampshire School of Law. See also Joan W. Howarth, The Professional Responsibility Case for Valid and

Nondiscriminatory Bar Exams, 33 GEO. J. LEGAL ETHICS 931, 934–35 (2021).

12. See Ben Bratman, Improving the Performance of the Performance Test: The Key to Meaningful Bar

Exam Reform, 83 U.M.K.C. L. REV. 565, 565 (2015) (noting critiques of bar exam as “useless” and a “waste of

time”). See generally Lorenzo A. Trujillo, The Relationship Between Law School and the Bar Exam: A Look at

Assessment and Student Success, 78 U. COLO. L. REV. 69, 77–79 (2007) (summarizing main critiques).

13. Carol Goforth, Why the Bar Exam Fails to Raise the Bar, 32 OHIO N.U. L. REV. 47, 50 (2015) (citation

omitted); see Hansen, supra note 2, at 1206.

14. See Trujillo, supra note 12, at 80; see also Goforth, supra note 13, at 50.

15. See William D. Henderson, The LSAT, Law School Exams, and Meritocracy: The Surprising and

Undertheorized Role of Test-Taking Speed, 82 TEX. L. REV. 975, 1038 (2004) (questioning connection between

rapid analysis and attorney competence as tested on the bar exam). See generally Trujillo, supra note 12, at

2022] PROTECTING THE GUILD OR PROTECTING THE PUBLIC? 165