South Dakota court reviews five-year pilot to admit law graduates through public-service pathway

The South Dakota Supreme Court on the morning of its rules hearing took up a package of proposals to create a public‑service pathway to bar admission that would operate as a five‑year pilot and would leave final admission decisions with the court and the Board of Bar Examiners.

Supporters told the court the pathway aims to protect the public by assessing minimum competence in practice settings and to encourage more law graduates to enter public‑sector careers. Anne Mines Bailey, chief of the bar exam and secretary for the Board of Bar Examiners, said, “under this proposed program, the board of bar examiners remains solely responsible for determining a candidate's minimum competence and character and fitness,” and that the court’s review and approval of each candidate would remain in place.

The rules package proposes a new chapter (referred to in the hearing as chapter 16a) and related amendments to SDCL provisions and bar‑examiner regulations to allow a law‑school–based placement and portfolio assessment as an alternative pathway. Dean Neil Fulton of the law school described two principal policy goals: “first and foremost… protection of the public by ensuring the competence of people who are admitted to the bar,” and second, “an investment in public‑service lawyers,” through supervised placement, mentoring and a written portfolio of work.

Key points described at the hearing:

- Structure and oversight: The proposal is framed as a five‑year pilot with an oversight committee that would review progress and recommend adjustments. The Board of Bar Examiners retains authority over minimum competence and character and fitness; the court retains final approval of each candidate.

- Educational and placement requirements: The pathway would require supervised practice placements (the implementation committee described a 500‑hour placement during law school), development of a portfolio of written and performance work, and reflective journaling. The law school plans a graded, pass/fail course tied to the placement; portfolio review will involve academic evaluation (Professor Tamara Nash was referenced as an evaluator) and separate review by the bar examiners.

- Timing and applicants: Dean Fulton said the law school has already received eight applications for the initial cohort and had a March 15 application closing date for next‑fall placements; he said he expected a cohort to be operating this fall if the court adopts the rules. Fulton said students in the cohort span the class but are primarily those with a stated interest in public service.

- Post‑admission service commitment: The rules as proposed call for a period of full‑time public service after admission (the document and presenters treat “public service” as full‑time employment with a federal, state, local or tribal government or specified legal services organizations). Committee members urged the court to adopt a two‑year post‑licensure service requirement rather than three, arguing two years was more likely to recruit participants and that supervisors usually know within 18 months whether the placement fits the student.

- Portfolio and examiner review: Judge Jane Wifbeifley (member of the Board of Bar Examiners and retired judge) said the board would publish, by May 31, what it expects to see in participants’ portfolios so there is no mystery about evaluation standards. She described weekly student reporting, supervisor comments, and a review process in which at least two bar examiners would evaluate each participant’s portfolio; she said portfolio review decisions would be communicated around mid‑November so students could still choose to sit for the traditional bar if necessary.

- Academic credit and program specifics: The law school expects the placement course to be variable credit (12–15 credits to maintain full‑time status), with up to three credits usable under the rules; the course would be graded pass/fail. The program will require contemporaneous time records and weekly student submissions to the review platform that Anne Mines Bailey is coordinating with the law school.

Questions from the court and discussion at the hearing addressed scopes such as whether placements must be full time (the presenters confirmed the definition in the proposed rule begins “full‑time”), how civil‑law experience would be captured (presenters acknowledged early placements will focus on prosecution and public defense but said civil placements could expand over time), and how the pilot aligns with other states (Dean Fulton cited New Hampshire’s Daniel Webster Scholars program and Oregon as comparative examples). Fulton and Judge Wifbeifley urged the court to adopt the pilot and to start with offices and placements the law school already uses in Sioux Falls and Rapid City.

A technical amendment requested by the dean would replace a credit‑count threshold in the draft rule (60 credits) with a time‑in‑program threshold (four semesters) to better match law‑school enrollment practices. Presenters also emphasized they do not intend the pathway to be perceived as a “lesser license”; Fulton said the program represents “a greater investment in public sector lawyering.”

The court did not rule during the hearing; the package was submitted for the court’s consideration and the court recessed for the next scheduled hearing. The proponents said, if adopted, the first cohort could be placed this coming fall and that the oversight committee would monitor performance and advise the court at the end of the five‑year pilot.

Sources: oral presentations by Anne Mines Bailey (chief of the bar exam, secretary for the Board of Bar Examiners), Dean Neil Fulton (law school), and Judge Jane Wifbeifley (retired judge, Board of Bar Examiners).