Lawmaker withdraws effort to drop bar-exam requirement for lawyers

Legislation to create apprenticeship failed to earn support in the face of Supreme Court study group

By: - February 17, 2023 11:53 am
University of South Dakota Law School Dean Neil Fulton speaks to students. (Courtesy of USD)

University of South Dakota Law School Dean Neil Fulton speaks to students. (Courtesy of USD)

A bill that aimed to create an apprenticeship program as an alternative to the bar exam for South Dakota lawyers has been withdrawn by its sponsor. 

House Bill 1076 is sponsored by Rep. Mary Fitzgerald, R-Spearfish. It would have allowed University of South Dakota Knutson School of Law graduates to bypass the bar exam and instead earn a law license by completing 1,000 hours of supervised practice with an experienced lawyer in the state.

Bar exam critics move to strike testing requirement for USD law grads

Fitzgerald declined to comment on what, if anything, might happen next. A withdrawn bill, or even one defeated in committee, can be revived during the legislative session in a variety of ways.

HB 1076 was the second attempt to do away with the bar exam requirement for USD Law grads in as many years. The 2022 version would have stricken the bar exam requirement without a supervised practice component.

Fitzgerald and those supportive of bar exam changes argue that the multiple choice portion of the test punishes slower readers, doesn’t reflect the work of lawyering in practice and serves to limit the pool of available lawyers in a state where rural areas often lack legal services. South Dakota’s unique scoring system, they argue, makes it more difficult to pass than it might be in other states.

Defenders of the exam say it serves as a bulwark against incompetence in the legal profession, and that the scoring system can be more helpful for examinees who perform well on the bar’s essay section. 

Unlike in 2022, HB 1076 came on the heels of a move by the Unified Judicial System to explore the role of the bar exam.

During his State of the Judiciary speech last month, South Dakota Supreme Court Chief Justice Steven Jensen told lawmakers about a recently formed study committee that aims to explore potential alternative pathways to licensure. 

The National Conference of Bar Examiners (NCBE) is already in the process of producing a “Next Gen” bar exam, he said, and bar exam passage rates in South Dakota have bounced back after a dip in the mid- to late 2010s.

State Rep. Mary Fitzgerald, R-Spearfish. (Joshua Haiar/South Dakota Searchlight)
State Rep. Mary Fitzgerald, R-Spearfish. (Joshua Haiar/South Dakota Searchlight)

Neil Fulton, dean of the USD Law School and a member of the study committee, has given multiple interviews on the topic in recent weeks, stressing the importance of the committee’s work in light of the forthcoming bar exam changes at the national level.

Fitzgerald previously told South Dakota Searchlight that she’s struggled to find co-sponsors or supporters to testify for HB 1076. Many have opted to wait for the study committee to complete its work before adjusting law licensure requirements in the state.

Roger Baron, a USD Law School professor emeritus and champion for bar exam reform, said this week that he “agrees 100%” with Chief Justice Jensen on the importance of a competency measure for lawyers in South Dakota, but said he hopes to see serious discussions from the study committee about the bar exam’s role as a measurement.

“I am absolutely certain that 10 years down the road, we will look back and realize that the Court’s reliance on the NCBE resulted in several highly competent graduates being denied licensure,” Baron said. 




Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.