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HB 1073: Let USD Law Grads Practice Law in South Dakota Without Bar Exam

When coronavirus hit in 2020, the South Dakota State Bar declined to give bar exam-takers full safety protocols or online options to prevent the spread of covid-19. Young legal guns seeking to fulfill their aspirations while protecting their respiration had two choices: come take the bar exam in person, or sit out from lawyering until the pandemic is done.

Representative Mary Fitzgerald (R-31/Spearfish) has a solution for that problem: do away with the bar exam for USD Law grads!

House Bill 1073 would grant “diploma privilege” to graduates of the University of South Dakota law school. USD Law grads seeking admittance to the South Dakota Bar would still have to be residents of the state, and they would still have to submit “satisfactory evidence” that they are at least 18 years old and are persons of “good moral character.” Show your USD Law diploma and evidence of age and good character (in Pierre, a voter registration card marked “R” will do), and you can skip the bar exam and go straight to lawyering.

HB 1073 does not address this topic, but one would hope that exempting successful USD Law students from the bar exam would also exempt them from the $400/month bar exam prep course fee that the Regents tacked onto USD Law school costs in 2017.

Four states and D.C. enacted temporary diploma privilege for law school graduates in response to the coronavirus pandemic. By the end of 2020, all five jurisdictions had put together plans to return to bar exam requirements and offer online testing options. Wisconsin is now the only state that offers diploma privilege.

41 Comments

  1. mike from iowa 2022-01-17

    Another one of Noem Nothing’s stoopid ideas to streamline failures in the professional world? South Duhkota could have 100% graduation rates if kids didn’t have to have passing grades to graduate, too.

  2. O 2022-01-17

    The typical GOP answer to worker shortages: flood the pool with unqualified workers. DOn’t pay nay attention to the actual causality or reality of the complex system that created the shortage (especially not contributions made by bad GOP policy), jsut open the floodgates and let anyone into the fields.

    I suppose you can be anything in SD (because we have no standards).

  3. grudznick 2022-01-17

    Yeah, that “stoopid” young Ms. Noem. You’d almost think she’s from Iowa. Oh wait. Maybe she’s against this and will send her goon lobbists to squash it.

  4. JO 2022-01-17

    Mary Fitzgerald (R-31/Spearfish) why not do the same for USD Medical School grads as done for the brilliant USD Law School graduates? Maybe also bypass residency requirements too? You might want to check with the AMA first. Let’s fill SD with unqualified “professionals” just as is done in our SD state government. Keep SD ignorance an important goal of our GOP dominance.

  5. sx123 2022-01-17

    Move to South Dakota: Start a business providing dual appraisal and law services with no certifications or expertise required!

  6. jerry 2022-01-17

    “My Cousin Vinny” did fine without a bar exam. Between him and that hottie Marisa Tomei (drrrrrrrrrrrrrr) they proved themselves

  7. mike from iowa 2022-01-17

    Actually jerry, Vincent LaGuardia Gambini passed the bar on the 6th try.

  8. mike from iowa 2022-01-17

    ps Marisa Tomei is mine, all mine. Keepa you hands off, Buster. :)

  9. 96Tears 2022-01-17

    A shortage of lawyers around here???? Dumbing down the qualifications to handle people’s legal issues is risking an increase in malpractice cases. This bill is an over-reaction. There’s a reason why South Dakota implemented the bar exam.

  10. jerry 2022-01-17

    Combine being a lawyer with an appraiser… oh wait, that dummy daughter still wouldn’t have made it.

  11. bearcreekbat 2022-01-17

    I am not sure how a single bar exam can weed out incompetent attorneys if these same individuals have successfully made it through the 3 year grind of USD Law School. Yet another exam, i.e. a so-called “bar exam,” seems a rather useless exercise and waste of time an money for USD Law graduates. The exam may make sense for graduates of other law schools that are outside the jurisdiction, but hardly makes sense so long as USD Law remaining in good standing and fully accredited.

  12. buckobear 2022-01-17

    Will this “bar exam” include a driving test?

  13. jerry 2022-01-17

    good one buckobear.

  14. Mark Anderson 2022-01-17

    It’s one way to make them stick in South Dakota where everyone in the state can pass a bar exam.

  15. Scott 2022-01-17

    Where do these dumb ideas come from? A much deeper questions is who are these dumb people that come up with these ideas or are willing to introduce such legislation?

    SD is looking dumber by the day. No wonder so many South Dakotans leave this state.

  16. Arlo Blundt 2022-01-17

    Well…as I recall, and I may be wrong, this is the way it was about fifty years ago. USD Law grads could practice in the state without passing a bar exam. Don’t know when the bar exam was added but I think the 70’s. The reason cited back then was there was a need for lawyers to practice in small county seat towns and buy out the practices of older lawyers looking to retire. I’m not sure why the privilege was voided, probably just got to the point of too many lawyers in the state. As we saw in the botched Ravensborg prosecution, we now have a shortage of lawyers practicing in rural counties. However, when populations in rural counties crater, there is not enough work available to keep a lawyer in the standard of living they are accustomed.

  17. larry kurtz 2022-01-17

    Fascinating. If passed this bill could incrementalize allowing anyone to practice whateveros: nursing, brain surgery or even cannabis sales without testing the product or the producer.

    Freedom truly is a double edged horde.

  18. M Fitzgerald 2022-01-18

    In 1903, the South Dakota State Legislature enacted the diploma privilege allowing all University of South Dakota School of Law graduates the ability to practice law in South Dakota without the requirement of passing the South Dakota Bar Exam. This legislation was drafted at the request of its proponent, Dean Thomas Sterling, USD School of Law. The diploma privilege had two goals:
    1. To encourage the academic study of law
    2. To encourage native South Dakotans to remain in the state to study and practice law.
    At one time, nearly every member of the South Dakota Supreme Court received the benefit of the diploma privilege. The diploma privilege benefited our state and law school graduates, from the University of South Dakota until 1957. Then in 1958, USD School of Law graduates were required to take the Bar Exam. The test was scored under a compensatory system. The Compensatory Bar Exam is a method in which an examinee can pass the exam by combining the scores from each section of the exam. If the examinee achieved the total minimum score, he/she passed the exam. This method served the state until 1973.
    In 1973, the diploma privilege was reinstated until 1983.
    In 1984, the Compensatory Bar Exam was again put in place.
    In 2015 the Bar Exam used for testing changed to Non-Compensatory whereby each section of the exam is scored separately. Currently South Dakota is the only state in the nation that utilizes this bar exam.
    The Non-Compensatory Bar Exam is scored independently so that if an examinee fails one portion of the exam, the examinee fails the entire exam, even though the examinee may have received higher scores than required on another section of the exam. Why are we the only state in nation that does this type of exam. The fail rate remains high. At one time USD Law School was placed on a list of 10 law schools that were in danger of losing their accreditation due to the low bar passage rate. We have a good law school, its the testing that is at fault. It’s time we fixed this problem.

  19. Mary J Fitzgerald 2022-01-18

    Year USD Students Rate of Passage
    2021 71%
    2020 60%
    2019 69%
    2018 52%
    2017 45%
    2016 39%
    *Information provided by SD Board of Bar Examiners.
    The chart below indicates the number of students from other law schools taking the South Dakota Bar and the comparative passage rate.

    Year Students from other law schools Rate of Passage
    2021 33 48%
    2020 35 63%
    2019 40 85%
    2018 42 60%
    2017 50 76%
    2016 41 49%
    *Information provided by SD Board of Bar Examiners.

  20. Richard Schriever 2022-01-18

    Bucko Bear. As we all SHOULD know, the LLD is already the second easiest terminal degree to obtain (after MD). For example, in order to obtain my MASTER’s degree in Organizational Psych, I had to pass an all-day “Comprehensive Exam” (an equivalent to the Bar Exam) on a total of 2 1/2 years of subject matter studied, in addition to completing a full year of supervised practice. So already, you can see that “fully qualified” attorney’s are turned loose on the general public with substantially less scrutiny as to their knowledge, skills and abilities to a simple Master’s level “business consultant”.

    PS, meeting all of the requirements for the Master’s simply qualified one to advance to “candidacy” for a doctorate. At least another 1 1/2 years of a combination of supervised research and practice leading to an another examination (the dissertation process) is what gets one that degree. What lawyer is ever supervised in a professional setting as a prerequisite for being licensed to practice???

    The BAR is a “low bar” IMHO. No disrespect intended. Simply stating facts.

  21. bearcreekbat 2022-01-18

    Richard asks “What lawyer is ever supervised in a professional setting as a prerequisite for being licensed to practice?” Many, but not all, prosective lawyers first work as interns and clerks before they take up their own practice of law. Normally they are heavily supervised in these positions and learn a great deal not taught in law schools.

    Meanwhile, Richard’s observation that “The BAR is a ‘low bar’” is right on the money. Being able to pass one complex written exam on the first try or on several tries does not a good lawyer make. As I said before, 3 years of grueling law school with the constant threat of failing classes and being dismissed from the school seems a much more effective means of weeding out potentially incompetent individuals than a single redundant bar exam. And it is quite true that not every law graduate passes the bar exam, in which case these individuals will be denied a license to practice law. Unfortunately, it is also true that many individuals that do pass the bar exam are later sued successfully for malpractice and/or suspended or disbarred for professional and/or ethical incompetence or malfeasance. The bar exam itself serves little meaningful purpose for effectively winnowing the herd. Thus, a diploma privilege simply makes sense as a matter of historical fact for grads of USD law school.

    In addition, there is unsettling research about the origin of the bar exam, describing it as “as an intentional scheme designed to regulate the profession. Specifically, this scheme was intended to exclude women, people of color, religious minorities, and immigrants. ”

    https://www.californialawreview.org/abolish-the-bar-exam/

  22. Arlo Blundt 2022-01-18

    Thank you Mary Fitzgerald for your reaearch into the history of the bar exam. I don’t think that the percentage of law school grads passing the exam year to year should necessitate abandoning the exam. I would rather look at the need to expand the number of lawyers practicing in the state. Your history is appreciated. The bar exam has an interesting pedigree, going back to Dean Sterling. As a citizen, I am more concerned with the quality of legal representation in the state than I am with the quantity of attorneys.

  23. John Dale 2022-01-18

    I’m willing to consider a lot of things (this option included).

    Sometimes you need a good lawyer (not necessarily a credentialed lawyer).

    Hard to believe I’m saying this, but do we need a much larger pool of attorneys to increase the number that are courageous enough to pursue valid torte?

  24. larry kurtz 2022-01-18

    My youngest daughter graduates USD in May but is taking a year before law school to work for tje Clay County Clerk of Court. She worked for Senator Art Rusch when she was at Morningside. No doubt she will be eligible if this thing passes unless she listens to me and leaves my stupid home state.

  25. oldtimerDon 2022-01-18

    I see a real opportunity for your industrious. illustrious, gracious, God fearing Governor to really cement her relationship on the Trump train ticket.
    Have Trump start a Trump University Law School. Talk about a winning team! Touches all the bases.

  26. Porter Lansing 2022-01-18

    Trying to pay serious attention to the really smart people on Cory’s blog; it seems that if bearcreekbat thinks the bar exam isn’t necessary, that holds a lot of sway with me.

  27. Ryan 2022-01-19

    i don’t have a real strong opinion for or against new JDs taking the bar at this point, but i would just like to jump into this thread and tell john that a tort is a legal civil claim and a torte is a multilayered creamy treat haha

  28. mike from iowa 2022-01-19

    John Rabbit Hole Refugee would likely need a pastry chef to pursue a torte.

  29. Neal 2022-01-19

    Mary Fitzgerald’s own daughter failed the bar exam numerous times.

    This legislation is shockingly self-serving.

  30. Art 2022-01-19

    Fitzgerald is representing over 100 USD law school graduates. No one else has the courage to take on the mighty state bar. I say it’s about time. The more competition the better.

  31. Misty 2022-01-19

    Neal:
    How would you know? People like you make me sick. Did you get prosecuted by Mrs Fitzgerald’s husband?

  32. Neal 2022-01-19

    Truth hurts I guess, Misty.

  33. Porter Lansing 2022-01-19

    You’d have to guess, Neal.

  34. Neal 2022-01-19

    No guessing on my part. Misty knows. And Mary herself was here; she knows too.

    Don’t be mad at me for sharing the truth Porter.

  35. Porter Lansing 2022-01-19

    Why should anyone here believe you, Neal?
    Show your source.

  36. Neal 2022-01-19

    This exchange has done a wonderful job of illustrating just how intellectually vapid you are, Porter.

    If anyone other than me had brought you this information, you would be rightfully outraged.

    Here’s a little secret: truth is truth. It isn’t any less true because you personally dislike the source.

  37. Neal 2022-01-19

    Mary F said: “Why are we the only state in nation that does this type of exam.”

    We are also the only state in the nation that criminalizes the presence of a drug in your blood or urine. Where’s your legislation to address that, Mary? Let me guess, John isn’t on board with that one?

  38. grudznick 2022-01-19

    Mr. Neal has some interesting points here.
    There are others in St. Onge and Whitewood who have spoken at length on these issues in establishments I am sure you all have frequented.
    By you all, I mean numerous libbies, and by me being sure, grudznick means that I of course am only an occasional visitor of these establishments.

  39. Patrick M Ginsbach 2022-01-20

    Ms. Fitzgerald has a daughter who graduated from USD Law School who has had problems in passing the Bar Exam. I don’t know if she finally passed. I am a recipient of the diploma privilege. 1980. Member no. 600. When I was at the law school we had students who flunked out in their senior year in law school. I went to a small town after graduation, and have been here 40 years.

  40. Neal 2022-01-20

    Well I’ll be darned, looks like ol’ Neal was right.

    I accept your apology, Porter and Misty.

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