Considering the Fate of Bar Exams and Revisting Diploma Privilege

During this bar exam week, I am reminded of the great debate about the necessity for bar exams at all. This is something I have pondered many times before and written about as well. Maybe it is because of my respect for knowledge — and the pursuit of knowledge — and not memorization. Maybe it is because I am a pragmatist and understand that whatever you spit out to pass a bar exam can seldom be relied on in practice. Everything has to be researched again and updated unless you are hankering for a malpractice suit. Everything. And all competent practitioners know it.

Or maybe it is because I am from Wisconsin, the birthing ground for progressives, and I know a lot of lawyers practicing there who never wrote a bar exam and are very competent and impressive members of the bar. My Dad was one of them.

One of the things that Wisconsin got very right over the years is what is known as “diploma privilege.” Diploma privilege in Wisconsin confers a license to practice law based on a diploma from one of the two law schools in the state. It has been alive and well for generations in Wisconsin. If it was a problem, you can bet that the Wisconsin legislature would have changed the policy long ago. No state wants to encourage and tolerate incompetence among its lawyers.

I wrote about this in a blog on September 8, 2020 during the fiasco of bad bar exam experiences associated with the pandemic. If you are interested, you can access that blog in the Archives under that date on the Home Page of this website.

Many others have addressed the subject before and since. When looking at diploma privilege Wisconsin-style, the salient question is how many Wisconsin lawyers are deemed incompetent or a threat to the quality of the bar because of diploma privilege. The answer is very few, as confirmed by a recent article in the Georgetown Journal of Legal Ethics, which was referenced in Notice and Comment earlier this week where author, David Lat, revisited the subject of diploma privilege.

The Georgetown Journal of Legal Ethics article sheds important light on the subject of diploma privilege. In that article, Professor Milan Markovic examines the experience of diploma privilege in Wisconsin and concludes:

[T]he bar examination 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 examinations.

Professor Markovic further noted that, during the pandemic, four states and the District of Columbia adopted some form of limited or modified diploma privilege. In 2021, these jurisdictions all returned to administering the bar exam again, however. But the pandemic experience shows that instituting diploma privilege is possible and establishes the groundwork for more lasting policy change in the future.

In recent years, the support for diploma privilege has grown. Instead of assigning incompetence to lawyers who do not write and pass a bar exam, maybe the American Bar Association should be looking at its accreditation criteria for law schools. The fact that Wisconsin only has two law schools — both of them very fine legal training institutions — might be a clue in this process.

Control the quality of legal education, and bar exams will not be necessary to protect the quality of the bar. It seems fundamental.


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Thought For The Week: “Best of luck to all those taking the bar exam this week.” Susan Smith Blakely

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Leadership Skills for All Young Lawyers

You know that I talk a lot about leadership skills throughout the various platforms within the Best Friends at the Bar project. Developing positive leadership skills is critically important for young lawyers who hope to ascend the professional ladder of success. And that ascension is not limited to partnership in a law firm. There are many different ladders of success within the profession of law — just as there are many legal practice settings to choose from.

But there is really only one set of leadership skills. No matter who you talk to, you will hear the same fundamental skill set repeated over and over again. Below is the way those skills are described in a recent Above the Law article (in my words with a few editorial comments):

  • Encourage and inspire others — As a leader, it is important to be a motivating force for those around you. It starts with being positive about your work and communicating that to others. When your team feels that positivity, you are more likely to achieve success;
  • Listen carefully and respond thoughtfully — To lead a team effectively, you must be aware of the needs and concerns of the members of the team. To demonstrate that awareness, you need to listen carefully to people’s concerns and show them that you sincerely value their input. The combination of seeing both sides of an issue and seeking common ground are essential in a strong leader;
  • Be decisive — A strong leader needs to make decisions quickly and confidently. As a general rule, there is no room for second guessing. But there are bound to be exceptions, and you must remain flexible to allow for those exceptions. You need to be able to change your mind without letting your ego get in the way;
  • Be open to new ideas — Whatever your level of experience and practice, you always can learn and grow. Your team will respect you for understanding that; and
  • Be willing to take risks — Risk taking as a leader can present itself in terms of changing the approach to a problem or giving team members the autonomy they need to develop their own skills. If this delicate balance is achieved, it will benefit your team by creating a dynamic and innovative work environment.

Good luck in becoming effective and impressive leaders.

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Thought For The Week: “Never forget that justice is what love looks like in public.” Cornel West

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Advice for Mastering the Meeting

Lawyers attend a lot of meetings, and meeting skills are very important. If executed properly, a lawyer who demonstrates good skills running a meeting will be perceived as a leader. And leaders typically have upwardly mobile career tracks.

Those skills are addressed throughout my work and, most recently, were addressed in an Above The Law article about how to create and manage productive meetings. The following advice for success as a meeting organizer/leader was included in that article.

Set the Table

If you are the person who has called the meeting, have an agenda that includes subjects for discussion and proposed time allotments for the discussion. Make sure all attendees have a copy of the agenda, and make introductory remarks to remind attendees of the background and purpose of the meeting.

For some meetings, where attendees may not all be well-acquainted, ask attendees to introduce themselves and provide brief information about their roles in the conversation or why they were invited to join. If certain items on the agenda are privileged and should not be shared outside the call, make that clear in your introductory remarks.

Then, stick to the agenda as much as possible. Practice the fine art of interrupting in a respectful way in order to keep the discussion on time. If some discussions get off the rail, use those same skills to suggest that the topic is important and can be addressed in a future meeting.

Review Next Steps

As the meeting comes to a close, summarize the discussion, review decisions made, and review next steps. Discuss any “to do” items, the attendees who are responsible for those items , and when responses are due. If appropriate, minutes of the meeting can be sent out as an additional reminder of meeting progress and future expectations.

And don’t forget to schedule the next meeting. Get the date and time on people’s calendars then and there to have the best chance of good attendance at the follow-up meeting.

This all may seem very fundamental to you, but it is the small things, which often are taken for granted, that can be the most problematic. Be organized, have a well thought agenda, stick to it, and run a great meeting. If you follow this advice, you will be on track to be perceived as an effective leader.

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Thought For The Week: “Our feelings are our most genuine paths to knowledge.” Audre Lorde

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The Competition for Talent at Law Firms Will Depend on Working Smarter, Not Harder

According to Thompson Reuters, as reported by Above The Law in this article, law firms that “crack the code on delivering the right mix of culture, flexibility and career path” stand to benefit enormously and retain talent in today’s highly competitive legal marketplace.

Specifically, a new report, cited by Thompson Reuters, concluded that compensation and workloads “are not the key factors driving lawyers’ decisions whether to leave their current firms and join different firms.” Rather, the majority of associates interviewed said that they value more the people they work with, the culture of the law firm, the quality of the work, clear paths for advancement, and flexible working practices. And the backup data demonstrates that one of the biggest sources of frustration for lawyers is not necessarily the number of hours worked but a lack of flexibility about when and where the work is done.

What is the source of these new-found attitudes? For starters, they are not so much new-found as newly and more effectively articulated. After two years of pandemic conditions of disruption and uncertainty, lawyers have emerged with a clearer vision of what satisfies their needs, especially those of young lawyers.

I was particularly pleased to read the emphasis on the opportunities presented to law firms by these new attitudes. Firms stand to benefit significantly from these new trends if they pay close attention and follow up with improved policies that meet the needs of today’s workers.

And this is where the part about “working smarter” comes in. To be successful in this new environment and amid different attitudes about work, firms will have to provide all of the tools, like state-of-the-art technology and management systems, to the lawyers in their ranks to retain them and take full advantage of their talents.

This is music to my ears. I addressed these same concepts in my 2015 book, Top-Down Leadership for Women Lawyers ( Wolters Kluwer/Aspen Publishers), and I have written about it in other books, columns and articles. Although some of those publications focused on women lawyers, the concepts addressed there are easily transferable to non-gender audiences and readers.

Healthy workplace cultures, effective mentoring, and flexibility are not gender specific. But they are essential.

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Thought For The Week: “Freedom is one of the deepest and noblest aspirations of the human spirit.” Ronald Reagan

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