Recommendation aims to address bar exam criticism, legal aid shortage in small towns
As many as 50 South Dakota law students will be able to bypass the bar exam over the next five years under a set of rules for alternative licensure recently approved by the state Supreme Court.
The public pathways pilot program is an outgrowth of a yearslong debate on the value of the bar exam as a measure of fitness for legal service in the state. Those who pass an ethics test and successfully complete two years in a public service legal position, such as in a state’s attorney’s or public defender’s office, would be in line for admittance to the state bar without a passing score on the exam.
For about a decade, bar exam critics in South Dakota have decried the timed test as a barrier to the profession that can prevent otherwise competent lawyers from service based not on their ability, but upon slower reading speeds or extra time spent fine-tuning their analysis.
The test, they’ve argued, doesn’t mirror the day-to-day work of lawyering.
Several legislative efforts have failed to force the State Bar and University of South Dakota Knudson School of Law to embrace the concept of tying licensure to law school graduation and the successful completion of an ethics screening.
The exam’s supporters, including South Dakota Supreme Court Chief Justice Steven Jensen, argue that the multi-part test constitutes a bare minimum measurement of competence. The exam requirement, they say, acts as a baseline bulwark against gross ineptitude and fosters trust in a field whose practitioners are responsible for protecting the rights of South Dakotans involved in the criminal and civil court system.
The South Dakota conversation mirrors a national one; the national organization behind the bar exam has itself spent years reworking the test in response to concerns similar to those raised in South Dakota. States including New Hampshire already have public service pathways similar to the one now poised to begin its piloting phase in South Dakota.
The public service option was born in part through a bar alternatives task force requested by Chief Justice Jensen and endorsed by lawmakers. The group backed the pitch of supervised public service for young graduates of the state’s law school as a way to let them prove their mettle in a supervised setting. The program also aims to bolster the public service workforce in a state where rural areas struggle to sustain a reliable crop of lawyers.
The program will be jointly managed by the USD law school and the South Dakota Board of Bar Examiners. The examiner group will be responsible for monitoring the work product and supervisory reports of each participant.
The program will only be open to students at USD Law and will accept up to 10 participants each year. After five years and an evaluation of the program’s operational efficacy, the high court will need to decide whether to continue the public service pathway as a permanent alternative to the bar exam.
A complete list of program rules and eligibility criteria are available on the state Unified Judicial System’s website.
