By Roger Baron | South Dakota Searchlight
State Rep. Mary Fitzgerald, R-Saint Onge, wants to enhance the delivery of legal services in South Dakota. She has filed legislation, House Bill 1270, designed to expand the state Supreme Court’s new apprenticeship program, adopted in February 2025.
The new program provides an opportunity to third-year (senior) law students. HB 1270 would extend the apprenticeship opportunity to existing graduates of the University of South Dakota’s Knudson School of Law. Her bipartisan proposal is cosponsored by Sen. Amber Hulse, R-Hot Springs, and Reps. Eric Emery, D-Rosebud, Tim Goodwin, R-Rapid City, and Rebecca Reimer, R-Chamberlain.
Although there are over 3,000 attorneys licensed in South Dakota, only about 1,800 are “active in-state members.” Many of these 1,800 attorneys are serving as judges, prosecutors and government lawyers. This leaves a shortage of attorneys who can directly serve South Dakota citizens, especially in rural areas.
South Dakota has 2.2 lawyers per 1,000 residents, a per capita ratio that is the second lowest in the nation. We have “legal deserts” — 35 counties have fewer than one attorney per 1,000 residents, and six counties have no attorneys at all.
In 2013, the South Dakota Supreme Court attempted to address the shortage with a Rural Attorney Recruitment Program, offering financial incentives. This initiative received national attention and was noble in spirit. Sadly, it failed.
Historically, attorneys became licensed in South Dakota through the “diploma privilege,” which was bestowed on law school graduates without the need to pass a bar examination. This licensing mechanism was in place for 64 years, a duration that exceeds any mechanisms used in this state. It was terminated in 1983, however, causing untoward results.
Eventually, the bar exam became the norm, and the drafting of the South Dakota bar exam was outsourced to out-of-state entities. These entities drafted questions that were designed to be administered nationwide, and therefore based on general principles of law, unrelated to the peculiarities of South Dakota law.
Additionally, multiple choice questions evolved as standardized testing, a method which has come under intense scrutiny as an inappropriate measure of legal competency. Currently, we are seeing these standardized tests being abandoned nationwide.
In the meantime, many qualified graduates from the USD law school have been denied licensure. Research conducted by the South Dakota Legislative Research Council revealed that the licensure rate in South Dakota for graduates of USD’s law school fell to 50% in 2015, 39% in 2017 and 41% for 2018.
The Supreme Court’s apprenticeship program is a step in the right direction. It assures “something more” than graduation from law school by creating an alternative route to bar licensure through legal education and practical experience. Law school students selected for the program must complete a minimum of two years of full-time public service employment, such as in the office of a state’s attorney or public defender, upon admission to practice law in the state.
But why limit the program’s usage to current students? Given the problematic history with the bar exam’s standardized testing, there is no reason to deny apprenticeship opportunities to other, prior law school graduates.
HB 1270 is scheduled for a hearing in the House Judiciary Committee on Monday. Sadly, this legislation will (if treated as similar measures in the past) likely be opposed by many attorney legislators and attorney lobby groups. One can’t help but wonder if the self-interest of existing attorneys (and their organizations) isn’t a conflict of interest. The availability of legal services is essential to providing access to justice to all aspects of South Dakota — rural, urban, poor and rich. HB 1270, if passed into law, could make great strides in expanding those services to where they are needed most.
This commentary was written by Roger Baron, professor emeritus for the USD school of law, for South Dakota Searchlight, an online news organization.
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