Legislature to reinstate diploma privilege for law school, bill killed in committee

House Bill (HB) 1073 was introduced to the South Dakota House of Representatives this legislative session by Rep. Mary Fitzgerald from Lawrence County. HB 1073 would have allowed people graduating from the law school at USD to practice law in the state without taking the bar exam. However, the bill was killed during the House State Affairs committee meeting on Feb. 2.  

Neil Fulton, the dean of the law school since 2019, was a member of the South Dakota Board of Bar Examiners from 2017 to 2019. Fulton was not in favor of HB 1073 but does think having another pathway to a law license is a worthwhile conversation. 

“If you’re going to provide an alternative pathway, you need some balance between what the law school does, the need of the South Dakota courts as regulators and the state bar working in coordination. I just didn’t think that was done here or reflected in the bill,” Fulton said. 

Roger Baron is an emeritus professor of USD and taught at the USD law school for 25 years before retiring. Baron was in favor of the bill because he said passing rates for the bar exam were as low as 40 percent in previous years around 2014, 2015 and 2016. 

“The problem is the bar exam. The way it is currently given is completely outsourced. The people who write the questions aren’t in South Dakota. They don’t know what we teach at the law school. They’re in other states and the exam questions don’t have anything to do a South Dakota law,” Baron said. 

Fulton said low passage rates were part of a national trend, not just in South Dakota during this period, but now passage rates for South Dakota have risen since 2019.  

“The proponents of the bill point to a window of time where passage rates were low, but in the last three years, our bar passage rates have been at or above national average,” Fulton said. 

Baron said although students can retake the bar exam, many students will not because of various reasons. 

“(The bar exam) is very expensive and psychologically (test-takers) are down, obviously, because they haven’t passed it the first time,” Baron said. 

To Fulton, the bar examen process is worth it to ensure lawyers in the state are responsible. 

“If you get a law license, you are able to go out and have a direct impact on the property, life and other key aspects of an individual’s life,” Fulton said. “If you get a law license, you can defend someone on a murder case, the next day you can draft someone’s will, you can handle someone’s divorce, you can handle someone’s civil case. If you mess those up, it has a huge impact on someone’s life.” 

Both Baron and Fulton testified on either side of the bill during the committee meeting. The motion to kill the bill was passed by the committee with eight “yeas” and four “nays.”