South Dakota is facing a shortage of lawyers, and it is impacting lower income, rural defendants more than anyone else in the state.

This has started a debate in the state about whether there should be allowance for attorneys to practice law without passing the bar exam, which would presumably mean more attorneys available to aid with the needed legal services.

Rep. Mary Fitzgerald most recently proposed the “diploma privilege” option after her daughter proved unable to pass the bar exam after numerous attempts.

Fitzgerald and other proponents point to the lawyer shortage, and the rigors of South Dakota’s lone law school as a reason to allow students graduating from there to go straight into practicing.

“The shortage of lawyers gives the appearance of two tiers of justice, one for the rich and powerful and one for the average citizen,” Fitzgerald said. “Less lawyers to hire has increased the costs of hiring a lawyer, and South Dakota residents suffer as a result. People on fixed incomes, the elderly, single parents.”

But many others in the state sharply disagree with this idea.

State Supreme Court Chief Justice Steven Jensen just laid out a lengthy defense of the bar exam, arguing in favor of requiring all prospective lawyers in South Dakota to take it.

“Some of the criticism of the bar examination is that it is too hard. Respectfully, the process to assess competence must be rigorous,” Jensen said. “Lawyers occupy unique positions of trust and responsibility. Clients place their confidence in lawyers to represent them in questions concerning their property, their liberty, and in the most serious criminal cases, their lives.”

“The legal profession is not unique in requiring a written competency examination. Doctors, accountants and many other professionals are required to prove their preparedness, as well,” Jensen said. “This is to protect the public. The requisite education for professional licensure is a significant step in the process, but an assessment of the ability to practice in the profession is both expected and necessary.”

Rep. Fitzgerald has already filed draft legislation on the topic again this year. The similar proposal she brought last year was rejected in the House State Affairs Committee.

You can read more about this proposal here.

For those of you who will be taking the February bar exam, there is still sufficient time left to get help understanding those concepts that you still don’t quite “get“ or how to earn extra points on your essays even when you don’t know or remember the applicable law. We can provide this assistance to get you on track to pass before it’s too late. You can learn more about our famed bar exam tutoring program here.