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Korean USD Law Grad Can’t Pass Multiple-Choice Bar Exam, Seeks Alternative Pathway to Practicing Small-Town Law

Speaking of Mary Fitzgerald, one of the aspiring lawyers for whom she has been fighting has a guest column in South Dakota Searchlight calling for creating “alternative pathways” to bar licensure in South Dakota.

For a couple years, Representative Fitzgerald (R-31/Spearfish) has been trying to write into South Dakota law diploma privilege for practicing law: graduate from USD Law School, and you get to practice law in South Dakota without taking the bar exam. Spearfish lawyer Sam Kephart reminded us last month that South Dakota granted diploma privilege until 1983.

South Korea native Jun Byung Park graduated from USD Law School in 2017 and would love to come practice law in South Dakota, but low scores on the multiple-guess section of the bar exam keep him out of our bar:

Park did well in law school. He did not do as well on the bar exam. He passed the essay and ethics portions of the exam but stumbled on the timed, 200-question multiple choice section, called the Multistate Bar Exam (MBE). Park failed the MBE three times. The 2-hour time limit was a problem for him, he said, as was choosing one answer on questions where he saw more than one good one.

The South Dakota Supreme Court declined to offer Park another chance, which is required in the state to take the bar more than three times. In most states, law school graduates can continue to take the test until they pass [John Hult, “Bar Exam Critics Move to Strike Testing Requirement for USD Law Grads,” South Dakota Searchlight, 2023.01.15].

I would think the essay and ethics tests would be harder to pass for anyone, especially for a test-taker for whom English is a second language. Passing both of those tests might be better signals of lawyerly aptitude than passing a multiple-guess test on which random guessing can boost one’s score. Of course, I can also see an argument that answering 200 scenario-based questions about points of law in two hours may fairly measure a lawyer’s ability to efficiently analyze evidence and testimony and accurately recall relevant points of law.

Park writes in Searchlight this weekend that the state’s bar exam is not neutral or fair:

South Dakota adheres to the controversial National Conference of Bar Examiners examination process, which multiple legal scholars have determined fails to provide a neutral and fair assessment of knowledge and skills over a diverse population of test takers [Jun Byung Park, “Law School Should Extend Recruitment Program to Bar Exam Reform,” South Dakota Searchlight, 2023.08.19].

And with the lawyer pool dwindling, South Dakota can’t afford to turn away interested graduates like him:

For many decades, South Dakota enjoyed a 90-100% licensure rate for graduates of the law school. But beginning with the law school class of 2016, the bar passage rate dropped to 39% for first-time takers, with minimal improvement since. The most recent data, as compiled by the Legislative Research Council, reports that over the past three years (2020-2022), 58% of USD’s law school graduates (116 of 199) have become licensed to practice law in South Dakota.

…I have been told that I have at least one job waiting for me in South Dakota if I can become licensed. I have formed many friendships there and truly love the state. It is my heart’s desire to live and practice law in South Dakota.

I respectfully submit that South Dakota should expand its pathways program — designed to entice young students to apply to law school — to the bar licensure process [Park, 2023.08.19].

Governor Kristi Noem tells us that Freedom™ Works Here, but Park doesn’t, because he can’t pass one multiple-guess test. And he’s one of the few interested workers who might actually make the $77,000 a year that Noem is telling Minnesotans in her postcards that they can make apprenticing in South Dakota. Park also mentioned in his January interview that he’s Christian and liked the small-town environment of Vermillion, so now that Governor Noem is done posing with Jason Aldean, maybe she’ll invite Park over for a “common sense American values” photo opp and adopt her friend Representative Fitzgerald‘s diploma privilege proposal as her next policy cause of the moment.


  1. All Mammal 2023-08-20 10:30

    Make America Great Britain Again.

  2. larry kurtz 2023-08-20 12:07

    If I were King law school graduates would clerk for a judge with pay for two years then take the bar exam.

  3. grudznick 2023-08-20 19:44

    If my close personal friend Lar were King, we wouldn’t have judges who could have clerks. Pete Fuller needed no clerks.

  4. DaveFN 2023-08-20 20:08

    “But beginning with the law school class of 2016, the bar passage rate dropped to 39% for first-time takers, with minimal improvement since.”

    Really? The lowest first-time passage rate recorded was 57.1 percent in 2017 with substantial improvement since.

  5. Mr SOL 2023-08-20 20:44

    Point of information – the MBE is a 6 hour exam. Three hours in the morning followed by three hours in the afternoon.

  6. Loren 2023-08-20 21:58

    I don’t know about a law license, but I hear Kristi can help with an appraiser certification. ;-)

  7. DaveFN 2023-08-20 21:58

    The Graduate Record Examinations (GRE) is an admissions requirement for many graduate schools and lasts about three hours and 45 minutes. An examination twice as long to enter and practice within the legal profession and not merely a graduate school is arguably not unreasonable, for all that.

  8. Heckifino 2023-08-20 23:37

    If I’m not mistaken former AG Mark Barnett received diploma privilege to practice Iaw in SD. My question is what has changed since 2016? That’s a drastic regression from 90-100% pass rate to 39-58%. Did the test change? Curriculum change? Leadership change? Entrance requirements change?

  9. bearcreekbat 2023-08-21 10:37

    It seems that this story is really about whether the bar exam is good public policy for South Dakota. How is this individual’s national origin even relevant to that topic? Is there supposed to be an intended implication that he couldn’t pass the exam because he is “Korean?” I don’t get it.

  10. Kyle Krause 2023-08-21 11:02

    Having 58% of graduates become “licensed to practice in South Dakota” is very different from having only 58% who were able to pass the bar exam. Many graduates will go practice in another state and take the bar exam there. Some choose not to work as attorneys and therefore do not take the bar exam at all. It is very misleading to conflate bar passage rates with the percent of graduates who become licensed in South Dakota.

    My understanding based on hearing from the dean of the law school over the years is that passage rates have come back up substantially. In large part, this is due to the student body being admitted. Bar exam passage rates very strongly correlate with LSAT scores. When the law school is able to admit more applicants who score high on the LSAT, more of those graduates end up passing the bar exam.

    All that said though, a good experience-based alternative to the bar exam probably would produce competent and ethical lawyers to at least the same extent as the bar exam, and should probably be explored. I trust our State Supreme Court more than I trust the legislature to figure that process out. Simple diploma privilege is not the answer.

  11. jakc 2023-08-21 21:42

    given that most of the bar exam covers topics from the first year of law school (property, torts, contracts, criminal law, constitutional law), the finals at the end of the first year at USD ought to be comparable to the bar exam. Students should not put in three years before finding out they can’t pass the bar exam. Those who don’t do well at the end of the first year could do remedial work, but at the end of three years, a law degree from USD ought to entitle a graduate to practice in South Dakota (not that law school does a particularly good job preparing students for the actual practice of law). Given the problems faced by the USD law school, they might look to doing things differently.

  12. Jet Johnson 2023-08-22 12:12

    To heckifiknow: I took and passed the SD bar exam last year. HOWEVER, most older lawyers in SD do not appreciate the increased difficulty of the bar exam now compared to what it was prior to the cited year–2016. That was the first year, I believe, that they stopped averaging MBE (multiple choice) and MEE/MPT/ILQ (essays) scores, as well as raising the passing score from a 130 to a 135 for the MBE. It is currently back down to a 133, which is an average difficulty. Now, if you perform extremely well on the essay portion, you get a couple of measly bonus points applied to the multiple choice–a maximum of three bonus points. However, the written portion is significantly easier for most students because you get to identify the rules at issue and state your argument to support that, rather than choose from a rigid set of choices. Simply returning to an average system would further increase the bar passage rate.

    USD did some work to help students pass the bar. However, the bar prep courses offered by USD are insufficient for most, I think. First of all, at least three essays from the past 3 bar exams have been from MBE topics. Students are not made aware of that, and spend too much time preparing for essays from topics that they likely won’t be tested on. You also do not need to answer all of the essays to pass the written portion. USD uses Barbri, and while that is fine (I used it and I passed), most students would benefit from an in-person class room environment and more rigorous testing of the MBE subjects in bar-style questions.

    The problem with the MBE is that the examiners try to trick you. I know that is to be expected to some extent, but some of these questions have multiple correct answers. All examinees are informed that this exam is choose the right answer and not choose the best answer, as many law school exams are. However, we got a question (which I know I answered correctly) that basically asked the student to choose the correct phrasing of Federal Rule of Evidence 403. Two answers were absolutely incorrect because they stated the rule backwards (“the probative value outweighs the prejudicial effect.”) However, they stated the correct rule twice, and different only in phrasing. The substance was otherwise identical in value, and in a legal proceeding, if you quoted the rule either way, nobody would notice, pay attention, care, or use that to defeat your argument. What is the substantive difference between “the probative value is substantially outweighed by the prejudicial effect” or “the prejudicial effect substantially outweighs the probative value”?

  13. bearcreekbat 2023-08-22 13:26

    Jet, I wouldn’t necessarily call it a “substantive” difference, but the main difference is that the first form seems to be more like the passive voice with unnecessar verbage added, while the second form more concise and clearly in the active voice. Which one did the Exam deem to be correct?

    Many, many years ago legal writing favored the passive voice for reasons unclear to me – perhaps to confuse or sound more complex?

    In the last 40 or so years, however, concise writing using the active voice has been preferred by most legal scholars – maximum clarity being the goal. If the exam is up to date then I would guess the second expression using the more concise active voice should be the correct answer, although I agree with you that substantively both phrasing are correct.

  14. bearcreekbat 2023-08-22 13:29

    Ha,ha, I should have phrased it: “most legal scholars prefer concise writing in the active voice,” rather than the passive “has been preferred.” Mea culpa.

  15. P. Aitch 2023-08-22 13:33

    @Jet –
    I tasked my AI assistant with your question just for curiosity sake, thus. – “What is the substantive difference between “the probative value is substantially outweighed by the prejudicial effect” and “the prejudicial effect substantially outweighs the probative value” when examining Federal Rule of Evidence 403?”
    She answered with this assertion:
    The substantive difference between “the probative value is substantially outweighed by the prejudicial effect” and “the prejudicial effect substantially outweighs the probative value” when examining Federal Rule of Evidence 403 lies in the emphasis on either the probative value or the prejudicial effect.

    In the first phrase, “the probative value is substantially outweighed by the prejudicial effect,” the focus is on the overall impact of the prejudicial effect on outweighing the probative value. It suggests that the negative consequences of admitting the evidence, such as potentially misleading or confusing the jury, would far outweigh any relevance or helpfulness in determining the truth.

    On the other hand, in the second phrase, “the prejudicial effect substantially outweighs the probative value,” the emphasis is on the disproportionate weight of the prejudicial effect compared to the probative value. It implies that the potential harm or unfairness caused by the evidence, even if it has some relevance, would significantly outweigh any legitimate purpose or evidentiary value it may have.

    In summary, the first phrase focuses on the overall impact of the prejudicial effect outweighing the probative value, while the second phrase emphasizes the disproportionate weight of the prejudicial effect compared to the probative value.

  16. jakc 2023-08-22 23:06

    Kevin Krause, I appreciate your point that doing well on the LSAT is a sign that a student will do well on the multi-state but that is in part because both are similar tests and a function of doing well on that kind of standardized test. I’m not a huge fan of law school rankings, but lots of people are and I suspect that USD is probably near the bottom and pretty low on LSAT scores. Students with higher LSATs have other options, should they wish to take advantage of an LSAT score. Since USD isn’t going to be able to compete for those with elite LSAT scores, it might help to be innovative (say, diploma bar privilege or other changes) to attract students who are looking for a different sort of law school (thus, my suggestion to concentrate on the basics covered in the bar exam in the first year and at the end of the year, put together a mini-bar exam for first years.) That would give students better feedback and allow at least some of them to drop out earlier rather than go through three years of school. Perhaps the school could figure out how to give those students some grad school credit to be used at USD for other programs.
    As for “concise legal writing”: as the wag said, almost a hundred years ago now, the two problems with legal writing are style and content. I don’t see that things have much improved.

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