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.