Reflections on the rural practice of law in South Dakota: past, present, and future.

Author:Gilbertson, David
Position:Project Rural Practice Symposium
 
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  1. INTRODUCTION

    If a law was passed evicting the attorneys from South Dakota's forty-eight most rural counties, universal outrage would follow. If a law was passed forbidding new attorneys from locating in these forty-eight counties, there would be more justifiable outrage. The reaction would be, in large part, because there would be no access to legal services in those counties. Yet time and circumstances are well on their way to yielding the same result without the necessity of laws, guards, or barbed wire. Up until the passage of H.B. 1096, a pilot program to assist counties in recruiting attorneys, there was little if any public reaction to the crisis, let alone outrage.

    South Dakota has approximately 1,800 active lawyers within its boundaries. Most people in the know say that is as many lawyers as we need. However, the lawyers are not spread evenly within the state's population. Sixty-five percent of South Dakota attorneys reside in just four counties: Minnehaha, Pennington, Brown, and Hughes. Even at that, the remaining thirty-five percent of lawyers are heavily concentrated in Mitchell, Brookings, Watertown, Yankton, Huron, and the Northern Black Hills. Yet fifty-four percent of South Dakotans live and work in rural areas.

    All South Dakotans are entitled to reasonable access to legal services. At one time, access to legal services in rural South Dakota existed. That is no longer always the case. The challenge now is how to restore a proper balance for access to legal services.

  2. THE PROBLEM

    As far as I am aware, no empirical or statistical study exists on the reasons for the decline of the number of attorneys in rural areas of South Dakota. Perhaps such a study is not possible. Based on four decades of personal observations and conversations with long-time members of the State Bar of South Dakota, I have identified reasons I believe significantly contributed to the decline. The list is not exclusive.

    Moreover, many other states have a similar problem in their rural areas, so it is clearly not unique to this state. (1) My participation in the Conference of Chief

    Justices brings me into regular contact with the Chief Justice of every state and territory in this country. In my visits with them, it is clear that every state with a significant rural area is facing the same problem. Rhode Island, Delaware, and the District of Columbia are probably the only jurisdictions that are immune from the issue.

    How did we get to this point? Here are a few of my thoughts on how it occurred. In 1930, over 390,000 people populated South Dakota farms. This was 56.5 percent of the state's population. The farm population was the bulwark of small-town South Dakota. By 2002, only 7.7 percent of South Dakota's population, 58,200 people, lived on farms. During the same time frame, the overall population of the State remained relatively stable and increased by only 9.6 percent from 688,500 to 754,800. (2)

    At the end of World War II, millions of veterans re-entered the civilian population. Many took advantage of the G.I. Bill, which provided them with a free education. The enrollment at the University of South Dakota School of Law significantly increased. After graduation, veterans returned home to commence the practice of law. Many enjoyed successful careers that kept them in their hometown. By the 1970s and into the 1980s, however, they "aged-out" of the legal system and retired. They were either not replaced at all or not in the numbers in which they departed.

    In 1972, the University of South Dakota School of Law began to aggressively recruit female students, where in the past the enrollment had been dominantly male. County commissioners told me that in the 1970s they had little problem attracting a steady supply of lawyers because, "the good hunting and fishing gets them here." With the change in the make-up of the graduating law students, many had more cosmopolitan outlooks and interests and the lure of outdoor recreation as a recruiting tool diminished.

    At a meeting of the Glacial Lakes Bar Association a few years ago every attorney in attendance but one had returned to his or her home county to practice law. Thus, there was an obvious source for a replacement pool. However, as the over-all population base of rural areas declined, there were fewer law school graduates to "go home." By the 1960s and the 1970s, this was due in large part to the decline in the birth rate (3) and the out-migration of South Dakota youth in search of educational opportunities and jobs. (4)

    Another significant shift in the make-up of the Law School student body was the emergence of non-traditional law students. These were individuals who engaged in another occupation before returning to law school. Many of them had a spouse and family. The financial obligations of family limited the graduate's ability to test the waters of setting up a rural practice.

    Many non-traditional students had the benefit of spousal support during their legal education. However, when it came time for the law school graduate to choose a locale and job, the job needs of the spouse often limited the choices for the graduate. Career opportunities for a spouse in a rural area were often minimal or non-existent.

    The cost of a legal education dramatically increased. When I attended law school in the 1970s, the cost of tuition, books, and fees was under $2,000 per year. With the help of summer jobs, the G.I. Bill, or spousal or parental assistance, a student graduated from law school with minimal or no debt. This allowed graduates the option of hanging out their "shingle" in a rural county and seeing what happened. Now a graduate of a law school who has the benefit of in-state tuition commonly graduates with a debt load of around $75,000. (5) This often requires the graduate to choose a career path that will produce an instant and certain cash flow to meet the debt and living expenses.

    The economics of a rural law practice changed. A couple of examples are helpful. When I graduated from law school in 1975, most rural attorneys still did income tax preparation and examined abstracts of title. As one veteran attorney explained to me, "It is like the grocer putting bread on sale at cost. It gets the customer in the door." By the 1980s, most attorneys no longer engaged in tax preparation and ceded that task to the accounting profession because of the advent of computer tax preparation programs and a change in the makeup of the Bar. In the late 1970s, the statute of limitations for legal malpractice affecting real estate was reduced. (6) On the surface, this reduction was positive for the rural attorney by limiting potential liability. It had, however, unintended long-term detrimental consequences. Bankers and other lenders no longer relied on an attorney's opinion concerning the state of the real estate title as a long-term guarantee of protection. Instead, lenders required the...

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