Bar Exams in South Dakota: An Unequal Playing Field for Attorneys?

On Wednesday, the state's top judicial official requested that lawmakers refrain from making any changes to the bar admission process while a committee studies it. However, within hours, a lawmaker announced her intention to file a bill that would alter the bar exam. Rep. Mary Fitzgerald, a Republican from Spearfish, proposed that graduates of the University of South Dakota Knudson School of Law should be able to obtain a license without having to pass the most contentious part of the exam. Under her proposal, USD Law graduates would only need to pass the ethics portion of the test and complete 1,000 hours of apprenticeship with a licensed South Dakota lawyer who has at least five years of experience. The graduates could still choose to take the bar exam instead of the apprenticeship if the proposal is passed. This is the second year in a row that Fitzgerald has attempted to change attorney licensing. Last year's bill was similar but did not include the apprenticeship component.
 
Fitzgerald's latest attempt to change the bar exam is the most recent development in a long-standing debate over the exam's usefulness and impact on the state's legal profession. South Dakota has a low number of lawyers per capita, ranked 45th in the nation according to the American Bar Association, with the shortage being more pronounced in rural areas. In 2013, over 65% of South Dakota's lawyers were concentrated in four urban centers, and that number has risen to 72% today, according to the State Bar. The controversy surrounding the bar exam began in 2014, when the state Supreme Court mandated that potential lawyers needed to pass both the essay and multiple choice sections of the exam, instead of averaging scores from the two sections, and also raised the passing score on the multiple choice test from 130 to 135.
 
Passage rates for the bar exam had already started to decline both nationwide and in South Dakota prior to the change in 2014. After the change, the rates dropped significantly. In 2018, after a comprehensive rule hearing, the state Supreme Court altered the scoring system once more, allowing examinees to transfer points from a high-scoring essay grade to their score on the multiple choice test, and also decreased the passing score for the multiple choice test by two points. As a result, the passage rates have returned to levels above the national average, according to Supreme Court Chief Justice Steven Jensen, who informed lawmakers this week. Fitzgerald and some other critics view the bar exam as an unnecessary burden for all graduates, particularly disproportionately impacting Native Americans, non-English speakers, and those without the financial means to pay the associated costs, including a $450 application fee from the state, additional fees for character and fitness reports and fingerprints, test preparation programs and loss of income from months of full-time study. The bar exam was not a requirement for South Dakota lawyers until 1983. Supporters of “diploma privilege” point out that retired Supreme Court justice David Gilbertson, the longest-serving chief justice in the state’s history, did not take the exam. Fitzgerald believes that diploma privilege with apprenticeship would alleviate the burden on students and increase the pool of available lawyers. “If you can go to law school and pass all those exams, you ought to be able to practice law in South Dakota,” Fitzgerald said.
 
Uncovering the Unfairness of South Dakota's Bar Exams and How It Could Affect Native American Lawyers 

The conversation about the structure of the bar exam is not unique to South Dakota. The National Conference of Bar Examiners is in the process of revising the test to a "Next Gen Bar Exam," in part as a response to criticisms that the multiple choice section of the test serves as a barrier to practice. The revision process began in 2018 and the new test is set to be implemented in 2026, with the expectation that the multiple choice section will be replaced, according to USD Law School Dean Neil Fulton. Fulton believes that discussions on how to improve the manner of testing legal competency should be an ongoing effort for legal educators. He does not see the issues with the test as a reason to eliminate it, but rather as an opportunity to reform and improve it. "For those people who say, ‘well, the current exam doesn’t test as well as it should,’ that’s an argument to reform the exam and make it better, as opposed to not having a licensure exam at all,” Fulton said, who serves on a South Dakota bar exam study committee.

Exam Keeps Some Out of the Profession

Jun Park, a graduate of USD Law School, would be practicing law in South Dakota if it were not for his difficulties with the bar exam. Instead, he is currently searching for work in Seoul, South Korea, a city he left over a decade ago to pursue an education and legal career in the United States. Park, who studied political science as an undergraduate in Buffalo, New York, felt a sense of belonging when he arrived in South Dakota in 2015. The law school and community were small and welcoming, and South Dakota's Christian influences aligned with his religious beliefs. "The main reason I want to practice law in South Dakota is that I love South Dakota," Park said from his home in Seoul. Despite performing well in law school, Park did not fare as well on the bar exam. He passed the essay and ethics portions of the exam but struggled on the timed, 200-question multiple-choice section, known as the Multistate Bar Exam (MBE). He failed the MBE three times. He cites the 2-hour time limit and having to choose one answer on questions where more than one answer seemed correct as being an issue for him. The South Dakota Supreme Court did not grant him another chance, which is required in the state to take the bar exam more than three times. In most states, law school graduates can continue taking the test until they pass. Some students move to states with less stringent requirements for retakes or to one of the majority of states where average scores on different sections of the test arrive at a final score. Park's classmate Jeff Holt did just that, moving to North Dakota after having difficulty passing the South Dakota exam. North Dakota does not allow unlimited retakes, but it does scale its scores. Holt had paid his fees and spent months preparing for the South Dakota test, but missed a passing score by two points.

Test Takers Trip over Multiple Choice
 
Fitzgerald and her supporters point to the state's scoring system as the problem. "We are the only ones that grade our bar exams like this," Fitzgerald said. "It’s created a shortage of lawyers." Critics argue that the exam is a poor measure of competence and that the timed multiple-choice section, known as the Multistate Bar Exam (MBE), unfairly punishes slow, methodical readers and English language learners for lacking skills that lawyers do not need. Some argue that slower readers may have more to offer potential clients. Former USD Law Professor Roger Baron told the House State Affairs Committee in 2022, "I want a lawyer who is methodical, who takes the time to do the research." John Fitzgerald, a longtime prosecutor, and husband of Rep. Fitzgerald, who was recently elected to a circuit judgeship, said that the expense of the test is a concern for many graduates who can't afford to stop working for months to study or spend thousands of dollars on study aids, "It favors those who have more resources," John Fitzgerald said. "It does play into this idea that there are two systems: one for the rich, one for everybody else." These issues are not unique to South Dakota, as forty-nine states require a bar exam for licensure. One state, Wisconsin, has diploma privilege, but USD Law School Dean Neil Fulton pointed out that the state has strict academic performance measures designed to ensure students grasp the basics tested for in the bar. New Hampshire's Daniel Webster program, which allows some students to forgo the post-graduation bar exam, builds bar exam testing into its coursework. Other states, including Oregon and Minnesota, have explored alternatives through apprenticeship.
 
Support for the Scoring System
 
Fulton and Jensen were firm in their stance that the state's scoring system was not behind examinee troubles. This sentiment was echoed during the 2018 rules hearing, which lowered the required MBE score to 133 from 135 and gave examinees a point-sharing option.
 
Thomas Geu, the former USD Law School dean, was among those who spoke up at the hearing, decrying the complexity of bar exam questions. Mark Mickelson, the former speaker of South Dakota's House of Representatives, questioned if higher scores meant more to potential clients in the state. Jim Leach, who had served as chair of the Board of Bar Examiners between 1997 and 2008, argued for a return to the pre-2014 system due to its disparate impact on Native American lawyers.
 
Leach noted that these changes potentially affected 30 Native American lawyers in a state where 10% of the population is Native American. In Western South Dakota, approximately half of all cases involve Native Americans. He also recalled that when he sat on the board, lawyers were regularly able to pass with scores lower than 135 and yet remain competent attorneys in South Dakota.
 
Jensen added that since 2018 many changes have paid off but another review is necessary to determine what will be done next – especially regarding the cost of preparation, passage rates, and barriers to entry across states offers insight into how complex this issue may become. Ultimately, rather than legislative action or appeasing certain interest groups, Jensen hopes for a comprehensive review that can inform sensible decisions moving forward.
 
REFERENCE:
Bar exam critics move to strike testing requirement for USD law grads
https://www.argusleader.com/story/news/politics/2023/01/17/bar-exam-critics-move-to-strike-testing-requirement-for-usd-law-grads/69811557007/