SIOUX FALLS, S.D. (KELO) — Jeff Church, a 2021 graduate of the University of South Dakota Law School, does not believe in the bar exam in its current form.
Church, an Army veteran of 30 years, hasn’t and doesn’t plan to take the bar exam conducted by the South Dakota Board of Bar Examiners needed to become a licensed attorney in the state. He is now studying to receive his doctorate degree in USD’s sustainability program and he supports Rep. Mary Fitzgerald’s (R-Spearfish) House Bill 1073. HB 1073 would allow graduates of the USD Law School to practice law without taking the bar exam.
“It’s a stressful event that doesn’t test minimal competency to practice law,” Church told KELOLAND News. “Why do we care about a national-level exam that does not test South Dakota law?”
Neil Fulton, the Dean of the Knudson School of Law at USD, told KELOLAND News he does not support HB 1073. Fulton, a former member of the South Dakota Board of Bar Examiners, said he doesn’t believe the bar exam is driving a lawyer shortage in rural areas of South Dakota.
Fitzgerald said she proposed HB 1073 because she’s been contacted by many students who she called “bar exam victims.” She said she’s heard from more than a hundred students that have failed the bar exam and believes the state’s bar exam keeps some South Dakota law students from staying in the state.
“A lot of these kids are afraid to come out and speak because they’re embarrassed and they’re ashamed,” Fitzgerald said. “They feel like they failed their parents.”
Church said he believes the bar exam has negatively impacted hundreds of people.
“Depending on the year you look at, it’s about a 20 to 40 percent rate of failure,” Church said. “If you got 3 out of 10 failing every year and there’s two tests a year, that’s six people a year, multiplied by 40 years, that’s a lot of people that failed.”
Roger Baron, a former law school professor at USD, said he witnessed “countless” numbers of students who were USD law school graduates who failed the bar exam.
“The bar exam has been problematic to say the least,” said Baron, who taught at USD for 25 years and now lives in Rapid City. “If they succeed in law school and get a degree, they are as competent in South Dakota law as you could ask and then you ask them to take a test on national standards that have nothing to do with South Dakota law. I don’t get it.”
Baron said there are procedures in place to make sure potential lawyers meet age requirements and have proper moral character and fitness.
Fitzgerald said only 40 percent of all the people, including USD law students and non-USD law students, who took South Dakota’s bar exam in 2015 passed. Fitzgerald said her data came from the South Dakota Board of Bar Examiners.
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.
Fulton said there were some poor bar exam pass rates in 2014 and 2015, but he attributed those to national changes and the students taking the exam.
“It’s not our law school, it’s the test,” Fitzgerald said. “Those in charge don’t want the legislature to be involved in their business but we’re here to represent the people.”
What is the bar exam?
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 is for someone meeting “minimum competence.”
Both Baron and Church had issues with the National Conference of Bar Examiners, which creates the MBE, MEE and MPT licensing tests. Fulton said the bar exam “is not perfect” and added the National Conference of Bar Examiners is making changes to the bar exam that won’t be implemented until 2026.
Baron, Church and Fitzgerald each emphasized the history diploma privilege has in South Dakota. The legislature allowed diploma privilege in 1903 before the South Dakota Board of Bar Examiners started in 1957. Church said diploma privilege returned in 1973 to 1983 and noted other states, Wisconsin and New Hampshire, have diploma privilege programs and Oregon is considering it.
“Diploma privilege has existed in South Dakota for 70 years, that’s the historical precedent,” Church said. “We didn’t have any crisis of law. There weren’t any outrageous attorney discipline cases going on and the public wasn’t being harmed.”
All three also cited the Judicial Department section of the South Dakota Constitution which states “The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. These rules may be changed by the Legislature.”
They all stressed the Legislature can enact change in the judicial system.
Fulton emphasized the bar exam provides protection to the public. As dean of the law school, he added he often thinks about how best to teach and train law students.
Church said he’d feel comfortable writing a will or representing someone in court even without having taken or passing the bar exam because he’d be working under an experienced and supervising attorney.
“Law school trains you to be proficient in the practice of law,” Church said. “Law firms are going to deploy their diploma privilege attorney no different than their bar exam attorney. They’ll be supervised and employed to their capabilities.”
HB 1073 has been sent to the House State Affairs committee and Fitzgerald said a committee hearing will likely happen next week.