South Dakota’s Bar Exam Conundrum: Boldly Embracing Innovative
Change and Exploring Alternative Pathways to Legal Practice for a More Equitable Legal Landscape and Brighter Future in South Dakota
by Samuel Kephart, Spearfish, SD
The South Dakota Bar Exam Committee has been diligently working to study and address the critical issues surrounding our state’s bar exam. Reflecting on the testing changes implemented in 2015, it’s clear we must continue to evolve and adapt better ways to ensure a fair and effective professional licensing process for aspiring lawyers in our state.
A Look Back: The 2015 Bar Exam Changes and Their Consequences
In 2015, South Dakota transitioned to a new bar exam format that has drawn attention for its unique approach. Our state’s bar exam is the only one in the country that does not allow the written and multiple-choice components to be combined to obtain a passing score. Furthermore, South Dakota is the only state that does not scale the subjective written exam to the objectively scored multiple-choice exam, as recommended by the National Conference of Bar Examiners (NCBE).
Since the implementation of these significant changes, our bar exam passage rates have declined… and many law graduates have left South Dakota to pursue their legal careers elsewhere. Consequently, South Dakota ranks 46th out of 50 states in per capita lawyers, leaving many of our citizens without affordable access to legal representation. This shortage has contributed to a growing perception of a two-tier justice system in our state, favoring those who can afford legal counsel.
Innovative Solutions: Six Alternatives to the Current Bar Exam
As we strive to improve the legal landscape in South Dakota, it’s crucial to explore alternative pathways to legal practice that protect the public interest while ensuring a diverse and equitable pool of legal professionals. Here are six potential solutions, each with its unique benefits and potential for implementation:
1) Diploma Privilege: By reinstating the diploma privilege, which was in effect in South Dakota until 1983 and has been successfully implemented in Wisconsin for over 75 years, law school graduates who pass a character and fitness exam would be granted a license to practice law. This concept could be enhanced by requiring passage of the Multistate Professional Responsibility Exam (MPRE) and a period of supervision by a qualified lawyer.
2) New Hampshire’s Daniel Webster Honors Program: Established by the New Hampshire Supreme Court in 2005, this program allows selected law students to spend their second and third years in a supervised clinical program. Students must compile a portfolio of work, pass the MPRE, and the character and fitness exam, but are not required to take the traditional bar exam.
3) Oregon’s Supervised Practice: The Oregon Supreme Court recently outlined a proposal for a supervised practice pathway, which would grant a license upon completing a post-graduation supervision period and passing certain tests, without the need for a traditional bar exam.
4) Oregon’s Second Proposal: This alternative, modeled after the Daniel Webster Honors Program, incorporates a specialized curriculum and testing during law school, with licensing granted upon graduation without the need for a traditional bar exam.
5) Louisiana’s Essay-Only Bar Exam: Louisiana utilizes an essay-only bar exam, with questions and model answers created and graded by local lawyers, avoiding reliance on the MBE.
6) The Uniform Bar Exam (UBE): Adopting the UBE, which is currently used by approximately 40 states, would create a more equitable exam that allows the combination of multiple-choice and written components to achieve a passing score. The UBE also scales the subjective written component to the objective multiple-choice component, as per NCBE guidelines.
The Path Forward: Balancing Public Protection and Access to Legal Representation
The future of South Dakota’s legal profession hinges on our ability to adapt and evolve our licensing processes to create a more equitable and diverse legal landscape. By considering these alternative pathways to legal practice, we can strike a balance between protecting the public from incompetent, unethical lawyers and ensuring that qualified candidates are not unfairly excluded by a one-size-fits-all exam.
By broadening our approach to licensing, we can better serve the public and address the growing shortage of lawyers in our state, particularly in rural areas. Mandatory continuing legal education for licensed lawyers is a more effective way to protect the public than a high-stakes, one-time exam. As a state that prides itself on innovation and forward-thinking, South Dakota should seize the opportunity to explore these alternatives and create a more inclusive legal profession.
Our Supreme Court, under Article V Section 17 of the State Constitution, has the authority and responsibility to address this issue and implement new rules to improve the bar exam and licensing process. By embracing change and working together, we can create a brighter future for aspiring lawyers, our legal system, and the citizens of South Dakota.
The time has come for South Dakota to take a bold step towards a more equitable and effective licensing process for our up and coming lawyers. By engaging in open dialogue and considering the innovative alternatives presented, we can strike the delicate balance between public protection and access to legal representation.
Let’s forge a visionary path reflecting the diverse needs of our state and its citizens, while upholding the highest standards of the legal profession. The future of South Dakota’s legal landscape depends on our willingness to embrace change and adapt to the evolving needs of our society. Forward thinking can seize this opportunity to create a brighter future for aspiring lawyers, our legal system, and ultimately, the citizens.
Why shouldn’t lawyers have to pass a tough test? Maybe it should be tougher. And that we have fewer lawyers per capita than California is a good thing.
South Dakota had the diploma privilege for nearly 70 years. At one time the entire SD Supreme Court were diploma privilege recipients.
South Dakota is the ONLY state in the nation that has this type of bar exam. Why is that? South Dakota is experiencing a shortage of lawyers and it will take years to recoup the deficit.
The pass rate of the February bar exam was 33%. Why are taxpayers supporting a law school that educates students to become lawyers when those students graduate and leave the state because of the notorious bar exam.
Most importantly, the South Dakota bar exam does not have one question on South Dakota law. Years ago lawyers in the state wrote questions for the multiple choice portion of the exam. Experienced licensed lawyers knew from experience what was important to know in order to be a good lawyer. Now that’s been outsourced to a company in New York-clearly another problem.
If you ask students that fail the bar exam they will tell you it’s the multiple choice portion of the exam. Everyone passes the ethics portion and the written essay exam part.
Those in charge refuse to change the current method of licensing lawyers in South Dakota. In another 10 years the state bar will be full of lawyers from out of state. So much for promoting our own South Dakotan grown kids.
Research shows the Regents fellows wanted to tighten up the criteria to be more like Drake. Or The Perdue. We don’t want to water down our lawyer fellows, we want to stiffen them up.
Mr. H says we should forge a revolutionary path forward, but he does not provide us a map of his path. What say you other bloggers? Give us the “how” which Mr. H has failed to suggest.
Oh wait. grudznick is sorry for missing it. Mr. H suggest hall passes and waiving the taking of the tough tests.
We need fewer lawyers, and those we have need to not be pansy like Colorado or Minnesota lawyers. They need to be toughened up and swinging from the heels.
The law degree (LLD) is the second easiest to obtain of all the terminal degrees already. For example, in my PhD program, 2 years of supervised practice or internship – was required to even qualify to be eligible for advancement for candidacy for the degree, let alone a license to practice.
Nobody hires Ph. D. fellows to do work for them, Mr. Schriever. They hire lawyers. We need to hold lawyers more accountable than librarians or other fuzzy logic drains on society.
I mean no direct offense if you, sir, are a librarian.
Attracting less qualified entrants to the University of South Dakota is exactly what dominionists like Mrs. Noem, Mary Fitzgerald and Sam Kephart want.
Iowan Jason Ravnsborg got three degrees at USD and look how that turned out.
Dr. Schriever- I’m curious now about which of the terminal degrees is easiest to obtain. Please let me know if you see this. Thanks.
Biggest problem with law in South Dakota is the political appointees in your Supreme Court is what my liberal lawyer friends in SD say. They say that passing law school is enough of a test.
Curious that Mr. Kephart chose DFP and not DWC for his manifesto.
Apparently the governor’s plan to accept most out of state licenses doesn’t apply to attorneys?
1st, the assertion that bar test passage rates have anything to do with rural access to lawyers is nonsense. Kephart can cite NO scientific or mathematical or peer reviewed study that bar test passage rates have any effect, rural or otherwise, on access to lawyers. Professionals, including lawyers, are not economically enticed to live in, work in, or move to economically failed, depopulating counties. Lawyers don’t do science or statistics – move on.
2d, the nation, and likely South Dakota has one third more lawyers than needed. We don’t need more lawyers. We need discipline of lawyers. Introduce the evidence of the parade of trumpian lawyers disbarrments. Consult, End Times; Elites, Counter-Elites, and the Path of Political Disintegration, by Peter Turchin, for a glance at the economics of lawyer over-population.
3d, the fact that Wisconsin has a diploma privilege means that Wisconsin holds their law professors to high standards of professionalism and judgment. South Dakota and states lacking a diploma privilege acquiesce to either; a) lower standards – relegating others to set the standards that those state professors are unwilling to enforce, or b) lazily, contentedly, hand over standards to a corporate multi-state bar exam test cabal, which in the end delivers no better results than the diploma privilege. Vest, and hold the law professors to be accountable.
4th, the biggest ‘problems’ with South Dakota judges and justices are: a) no senate confirmation or oversight – the present system is a version of a self-licking ice cream cone with a bar-based judicial qualifications committee essentially making a selection; and 2) the circus of retirements mid-term followed by gubernatorial appointments to fill a term, followed by the facade of a retention election. Judges and justices should not be elected by any mob.
All Mammal, the easiest terminal degree to obtain is the MD. All of the clinical, non-classroom training is post degree. There is no “final proof” (such as a dissertation, or comprehensive exam) needed to get the degree. There is a great deal of POST DEGREE effort required to be licensed to go into practice, or to specialize in some field. But the degree itself is the easiest.
I keep seeing that “SD has a lawyer shortage.” What need is driving this shortage?
Dr. Schriever- Thanks for providing the explanation I needed to understand what you meant(:
Personally, I think it’s time South Dakota joined the rest of the nation and adopt the UBE exam.