SIOUX FALLS, S.D. (KELO) — A proposed bill in the South Dakota House of Representatives would allow University of South Dakota Law School graduates to practice law in the state without passing the bar exam.
House Bill 1073, called “an act to provide for diploma privilege for admittance to the practice of law,” is being introduced by Rep. Mary Fitzgerald (R-Spearfish). Fitzgerald, who is married to the Lawrence County States Attorney, told a Yankton radio station she believes South Dakota’s bar exam is one of the hardest in the country.
The rules and regulations to practice law in South Dakota are set by the Board of Bar Examiners and attorneys must be licensed from the South Dakota Supreme Court to practice law.
Neil Fulton, the Dean of the Knudson School of Law at the University of South Dakota, does not believe South Dakota’s bar examine is any harder than any other states or jurisdictions. He said South Dakota’s Board of Bar Examiners changed its cut score recently to meet the national average.
“It’s important to remember the exam provides protection to the public,” Fulton told KELOLAND News on Monday. “The exam is there for people to meet that bare minimum threshold of competence to represent folks on personal conduct, their property, their liberty, those kinds of things.”
Fulton, a former member of the state’s Board of Bar Examiners from 2017 to 2019, said he doesn’t believe the bar exam is driving a lawyer shortage. He said the need for more lawyers is more of a recruiting and placement issue.
The bar exam can be similar to board exams doctors, nurses and accountants face to also become licensed. The bar exam contains multiple exams, including a 200-question multiple choice exam called the Multistate Bar Examination (MBE), answers for five essay questions in the exam called the Multistate Essay Examination (MEE) and a practice-focused exam called the Multistate Performance Test (MPT).
All potential lawyers in South Dakota are also required to answer an essay question on Indian Law. Fulton described the standard passing the exams shows someone meeting “minimum competence.”
Fulton said there were some poor bar exam pass rates in 2014, but he attributed those to national changes and the students taking the exam.
USD bar exam passage rate average around 75%
According to data on the USD Law School website, students taking the bar exam for the first time in 2019 passed at an 80% mark in South Dakota and 76% in all other jurisdictions. Fulton said a passage rate of 75-80% is common for people taking the bar exam for the first time. He said the ultimate bar passage rate, regardless of number of attempts, is getting closer to 90 percent at USD. Fulton noted that’s the number he’s focused on because that’s how the law school gets accredited.
Fulton admitted the bar exam “is not perfect” and noted there’s changes coming to national parts of the current bar exam. He said the national standard is shifting to focus more on law practice, but those changes won’t be implemented until 2026.
“It doesn’t mean the current bar exam is invalid, it just means we can make it better,” Fulton said.
Fitzgerald said the bar exam forces law school students to spend more time learning how to take a test, rather than learning how to practice law.
Fulton disagreed and added he often thinks about how best to teach and train law students.
“The bar exam is a high stakes exam, so we definitely invest resources in the third year and in the summer when people are taking the bar exam,” Fulton said. “We work with students on developing the core skills that lawyers need and the core knowledge that lawyers need.”
If HB 1073 were to pass and be signed into law by Gov. Kristi Noem, USD law school graduates would still need to meet age qualifications and moral character to be considered licensed attorneys.
Fulton said he believes there should be alternative pathways to getting a law license but also stressed there should be additional requirements other than a law degree. He highlighted there’s some law school students who get law degrees for use outside of becoming a lawyer.
HB 1073 has been assigned to the House State Affairs Committee. A committee hearing date has not yet been set.
Regardless of what happens with the bill, Fulton believes conversations about getting a law license should continue.
“The South Dakota Supreme Court does this by court rule, not traditionally by legislation. I think that’s an important thing for folks to wrestle with,” Fulton said. “If this bill doesn’t pass, it doesn’t mean it’s the end of the discussion about how we reform the bar exam in South Dakota.”