POWERS AND DUTIES OF ATTORNEYS
16-18-1 License and bar membership required to practice law--Injunction to restrain violations.
16-18-2 Attorney licensing--Non-resident attorneys--"Pro hac vice" admission on motion--Requirements.
16-18-2.1 Legal assistance by law students--Purpose of provisions.
16-18-2.2 Requirements for participation by law student.
16-18-2.3 Certification of legal intern or extern by law school dean--Filing--Effective period--Withdrawal by dean or termination by Supreme Court.
16-18-2.4 Consent and approval for appearance by legal intern or extern--Authority for appearance in civil and criminal matters.
16-18-2.5 Appearance by legal intern or extern for state, county, or first or second class municipality.
16-18-2.6 Preparation of pleadings, briefs, and other documents by legal intern or extern.
16-18-2.7 Oral argument by legal intern or extern before Supreme Court.
16-18-2.8 Notation of oral consent and approval of appearance by legal intern or extern--Filing of written consent.
16-18-2.9 Qualifications of supervising lawyer--Professional responsibility.
16-18-2.10 Other rights not affected by provisions for legal assistance by legal interns or externs.
16-18-3 to 16-18-5. Repealed .
16-18-5.1 Temporary waiver of admission requirements for nonresident defense counsel where county is experiencing significant increase in criminal cases.
16-18-6 Contracts and powers of disbarred attorney void.
16-18-7 Solicitation, acceptance of employment, or practice by disbarred or suspended attorney as misdemeanor.
16-18-8 Assistance to or acceptance of employment from disbarred or suspended attorney as misdemeanor.
16-18-9 Attorney's power to execute bonds and instruments for client.
16-18-10 Attorney not to be surety--Violation as misdemeanor.
16-18-11 Attorney's power to bind client by agreements--Evidence of agreement.
16-18-12 Proof of authority required of attorney.
16-18-13 Attorney's duty to respect courts.
16-18-14 Attorney's duty to respect reputation of parties and witnesses.
16-18-15 Attorney not to maintain unjustified actions or defenses--Criminal defense excepted.
16-18-16 Attorney not to maintain action for improper motives.
16-18-17 Attorney's duty to represent the oppressed.
16-18-18 Attorney's duty to respect client's confidence.
16-18-19 Attorney's duty to use truthful means.
16-18-20 Attorney's power to receive money for client--Unauthorized discharge of claim prohibited.
16-18-20.1 Record of client funds--Time preserved--Failure to keep as ground for discipline.
16-18-20.2 Attorney licensing--Trust accounting records and procedures.
16-18-21 Attorney's lien on proceeds of action.
16-18-22 Bond to release attorney's lien--Bill of particulars required of attorney.
16-18-23 Refusal by attorney to pay money to client as misdemeanor.
16-18-24 Lien as justification for withholding money from client.
16-18-25 Security given by attorney for payment to client.
16-18-26 Misconduct by attorney as misdemeanor.
Attorneys for public agencies may permit use of name or office. 16-18-28
Liability of attorney for treble damages for misconduct. 16-18-29
Acceptance of consideration from defendant by attorney for public agency as misdemeanor. 16-18-30
Withdrawal of attorney of record--When permitted. 16-18-32
Attorney authorized to remove files from offices of clerks of court--Electronic transmission of copies. 16-18-33
Definition of legal assistant. 16-18-34.1
Minimum qualifications. 16-18-34.2
Utilization of legal assistants. 16-18-34.3
Ethical considerations. 16-18-34.4
Certain individuals disqualified. 16-18-34.5
Application by disqualified persons--Requirements--Hearing--Burden of proof. 16-18-34.6
Revocation of order for disqualified persons--Hearing--Burden of proof. 16-18-34.7
Recommendations in attorney disciplinary proceedings. APPENDIX TO CHAPTER 16-18.
South Dakota Rules of Professional Conduct.
16-18-1. License and bar membership required to practice law--Injunction to restrain violations. Excepting as provided by § 16-18-2, no person shall engage in any manner in the practice of law in the State of South Dakota unless such person be duly licensed as an attorney at law, and be an active member of the State Bar in good standing. Any person engaging in any manner in the practice of law in violation of this section may be restrained by permanent injunction in any court of competent jurisdiction, at the suit of the attorney general or any citizen of the state.
Source: SL 1931, ch 84, § 11; SDC 1939, § 32.1121; SL 1945, ch 143; SL 1959, ch 229.
16-18-2. Attorney licensing--Non-resident attorneys--"Pro hac vice" admission on motion--Requirements. A nonresident attorney, although not licensed to practice law in the State of South Dakota, but licensed in another jurisdiction within the United States, may, after first complying with the requirements hereinafter set forth, participate in the trial or hearing of any particular cause in this state, provided a resident practicing attorney of this state, a member of the State Bar of South Dakota, is actually employed and associated and personally participates with such nonresident attorney in such a trial or hearing. If such admission is sought to any court of this state by a nonresident attorney, the applicant shall first file with the court wherein he or she seeks admission a written sworn motion requesting admission. The motion shall contain
(1) The post-office address of the nonresident attorney;
(2) The office address of an attorney of this state with whom the nonresident attorney is associated in the trial;
(3) A statement that the nonresident attorney is a member in good standing of the bar of the state of his residence;
(4) A statement that the nonresident attorney has not been the subject of disciplinary action by the bar or courts of the state of his residence or of any state during the preceding five years;
(5) A statement that the nonresident attorney has not been denied admission to the courts of any state or to any federal court during the preceding five years;
(6) A statement that the applicant is familiar with the rules of the State Bar of South Dakota governing the conduct of members of the State Bar of South Dakota, and will at all times abide by and comply with the same so long as such trial or hearing is pending, and he or she has not withdrawn as counsel therein;
(7) A statement that the nonresident attorney:
(a) has completed an application for a South Dakota Sales and Use Tax License or that such license has been issued to the nonresident attorney by the South Dakota Department of Revenue; or
(b) is not in private practice and is appearing on behalf of an employer for whom said nonresident attorney is employed on a full time basis and that such appearance in the courts of South Dakota is part of said nonresident attorney's duties without additional compensation being paid for such appearance.
The motion of the nonresident attorney seeking admission shall be accompanied by a fee of two hundred dollars and a motion of the resident practicing attorney of this state within whom he or she shall be associated in the trial or hearing of a particular cause, which shall contain a statement that the resident attorney finds the applicant to be a reputable attorney and recommends his or her admission to practice before the court.
The judge may examine the nonresident attorney to satisfy himself that the nonresident attorney is aware of and will observe the ethical standards required of attorneys of this state. If the judge is not satisfied that the nonresident attorney is a reputable attorney and will observe the ethical standards required of attorneys in this state, he may in his discretion deny the motion. If the motion is not granted, the clerk shall refund the two hundred dollar fee. If the motion is granted, the clerk shall remit one hundred dollars to such fund as may be hereafter designated by the Supreme Court for the benefit of the Unified Judicial System and one hundred dollars to the State Bar.
If after admission to practice in this state, the nonresident attorney engages in professional misconduct as that term is defined by the rules governing the State Bar of South Dakota, the admitting judge may revoke his or her admission to practice and may cite him or her for contempt. In addition, the admitting judge may refer the matter to the disciplinary board of the State Bar or other proper authority as is deemed necessary and desirable.
The filing of a motion requesting admission to a court of this state by a nonresident attorney shall constitute his or her submission to the jurisdiction of the disciplinary board of the State Bar and the county in which the court is located shall be considered the county of his or her residence for the purpose of determining venue in any disciplinary action taken against him or her.
The appearance of a nonresident attorney, unlicensed in the State of South Dakota, in an administrative hearing under chapter 1-26 shall be in accordance with the requirements of this section and subject to the approval of the circuit court for the county in which the hearing takes place or the circuit court for Hughes County, South Dakota.
Source: SDC 1939 & Supp 1960, § 32.1102; Supreme Court Rule 75-6; Supreme Court Rule 78-1, Rule XX (a); SL 1991, ch 430 (Supreme Court Rule 90-7); SL 1995, ch 316 (Supreme Court Rule 95-9); Supreme Court Rule 95-11; SL 2004, ch 331 (Supreme Court Rule 04-04), effective July 1, 2004; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
16-18-2.1. Legal assistance by law students--Purpose of provisions. The bench and the bar are primarily responsible for providing competent legal services for all persons including those unable to pay for these services. As one means of providing assistance to lawyers and to encourage law schools to provide field placement instruction in legal work of varying kinds, §§ 16-18-2.2 to 16-18-2.10, inclusive, are adopted. For the purposes of §§ 16-18-2.1 to 16-18-2.10, "extern" means a student in a field placement program for academic credit offered by a school of law in accordance with the American Bar Association Standards for Approval of Law Schools, and "intern" means any other student providing legal assistance under the supervising lawyer.
Source: Supreme Court Order No. 3, 1969; SL 2011, ch 249 (Supreme Court Rule 11-06), eff. July 1, 2011.
16-18-2.2. Requirements for participation by law student. In order to make an appearance and to participate pursuant to §§ 16-18-2.1 to 16-18-2.10, inclusive, the law student must:
(1) Be duly enrolled in or a graduate of the school of law of the University of South Dakota or a law school approved by the American Bar Association.
(2) Have completed legal studies amounting to at least four semesters or the equivalent if the school is on some basis other than a semester basis.
(3) Be certified by the dean of such law school as being of good moral character and competent legal ability, and as being adequately trained to perform as a legal intern or extern. As a part of the certificate the dean shall set forth the termination date of the certificate. No certificate shall remain in effect in excess of eighteen months after it is filed.
(4) Be introduced to the court or administrative agency in which he or she is appearing as a legal intern or extern by a lawyer authorized to practice law in this state.
(5) Neither ask nor receive any compensation or remuneration of any kind for his or her services from the person on whose behalf he or she renders services, but this shall not prevent a lawyer, legal aid bureau, law school, public defender agency, or the state from paying compensation to the legal intern, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require, or prevent any agency or lawyer from reimbursing a legal intern or extern for reasonable, out-of-pocket expenses related to the field placement.
(6) Certify in writing that he or she has read and is familiar with the rules of professional conduct of the Supreme Court of South Dakota, this title and the provisions of § 19-19-502, and agree to govern his or her conduct accordingly. Such certification shall either be made part of or shall be annexed to the certification of the dean of the law school as required by subdivision (3) of this section.Source:
Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 1; Supreme Court Rule 80-16; Supreme Court Rule 87-13, SL 1988, ch 432; SL 1989, ch 30, § 49; SL 2011, ch 240 (Supreme Court Rule 10-16), eff. July 1, 2011; SL 2011, ch 250 (Supreme Court Rule 11-07), eff. July 1, 2011.
16-18-2.3. Certification of legal intern or extern by law school dean--Filing--Effective period--Withdrawal by dean or termination by Supreme Court. The certification pursuant to § 16-18-2.2 by the law school dean of a law student to become and perform as a legal intern or extern:
(1) Shall be filed with the clerk of the Supreme Court and the secretary of the Board of Bar Examiners and, unless it is sooner withdrawn, it shall remain in effect until the expiration of the term fixed by the certificate of the dean, or until the announcement by the Board of Bar Examiners of this state of the results of the first bar examination following the student's graduation, whichever is earlier. Provided, that as to any student who passes such examination, the certification shall continue in effect until the date he or she is admitted to practice law pursuant to § 16-16-17; but such continuation shall not exceed three months. However, any student who fails such examination on the first occasion may apply to the dean of such law school and obtain, upon a showing of good cause in good faith, an extension certificate until the results of the next bar examination are announced. The Board of Bar Examiners announces the results of the bar examination by letter to the student informing him or her that s/he passed or failed the examination.
(2) May be withdrawn by the dean at any time by mailing a notice to that effect to the secretary of the Board of Bar Examiners and the clerk of the Supreme Court, which shall be filed by the clerk. Such withdrawal may be without notice or hearing and without any showing of cause.
(3) May be terminated by the Supreme Court at any time without notice or hearing and without any showing of cause. Notice of termination shall be filed with the clerk of the court and the secretary of the Board of Bar Examiners.
(4) May be terminated by the Board of Bar Examiners at any time without notice of hearing and without any showing of cause. Notice of termination shall be filed with the clerk of the Supreme Court.Source:
Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 2; Supreme Court Rule 89-14; SL 2011, ch 241 (Supreme Court Rule 10-17), eff. July 1, 2011; SL 2011, ch 251 (Supreme Court Rule 11-08), eff. July 1, 2011.
16-18-2.4. Consent and approval for appearance by legal intern or extern--Authority for appearance in civil and criminal matters. A legal intern or extern may appear and participate in any proceeding in any court or before any administrative agency in this state on behalf of any person in the following matters and under the following circumstances:
(1) In any civil matter. In such matters a supervising lawyer shall certify to the court or the administrative agency, orally or in writing, that the client has consented to the appearance of the legal intern or extern. A supervising lawyer is required to be personally present in court or before the administrative agency at each appearance by a legal intern.
(2) In any criminal or quasi-criminal matter, and whether the defendant does or does not have the right to the assignment of counsel under any constitutional provision, statute, or rule of the Supreme Court of this state or of the United States. In such matters the client shall consent in writing and a supervising lawyer shall approve in writing the appearance by the legal intern or extern and the supervising lawyer shall be personally present throughout the proceedings.Source:
Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 3; SL 2011, ch 242 (Supreme Court Rule 10-18), eff. July 1, 2011; SL 2011, ch 252 (Supreme Court Rule 11-09), eff. July 1, 2011.
16-18-2.5. Appearance by legal intern or extern for state, county, or first or second class municipality. A legal intern or extern may appear in any civil, criminal, or quasi-criminal matter on behalf of the state, a county, or a first or second class municipality with the written approval of the attorney general, state's attorney, or city attorney, as the case may be. The legal intern or extern shall be under the supervision of the approving attorney, or of a deputy or assistant thereof, who has the responsibility as supervising lawyer. The approval may be for a specific case or matter or may be general for a series or type of cases or matters as appears in order to the approving attorney. The approval may be withdrawn at any time by the approving attorney without notice, hearing, or cause stated; and the withdrawal shall be filed pursuant to § 16-18-2.8. Unless the court orders otherwise, the appearance by the legal intern or extern may be in the absence of the supervising lawyer.
Source: Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 4; SL 1992, ch 60, § 2; SL 2011, ch 253 (Supreme Court Rule 11-10), eff. July 1, 2011.
16-18-2.6. Preparation of pleadings, briefs, and other documents by legal intern or extern. In addition to the activities authorized under §§ 16-18-2.4 and 16-18-2.5, except as may be limited by the certificate of the dean, a legal intern or extern may engage in other activities, under the general supervision of a supervising lawyer, but outside the personal presence of that lawyer, including but not limited to preparation of pleadings, abstracts, and other documents in any matter; but any item requiring signature under rule or statute must be signed by a lawyer authorized to practice law in this state.
Source: Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 5; SL 2011, ch 254 (Supreme Court Rule 11-11), eff. July 1, 2011.
16-18-2.7. Oral argument by legal intern or extern before Supreme Court. A legal intern or extern may participate in oral argument before the Supreme Court but only in the presence of a supervising lawyer who shall certify to the court in his or her introduction of the legal intern or extern to the court that the client has approved the participation by the legal intern or extern.
Source: Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 6; SL 2011, ch 243 (Supreme Court Rule 10-19), eff. July 1, 2011; SL 2011, ch 255 (Supreme Court Rule 11-12), eff. July 1, 2011.
16-18-2.8. Notation of oral consent and approval of appearance by legal intern or extern--Filing of written consent. In each case where the consent and/or approval referred to in §§ 16-18-2.4, 16-18-2.5, and 16-18-2.7 is required, any oral certification of a supervising lawyer shall be noted by the court or presiding officer of the administrative agency on its records of the case and any written consent and/or approval shall be filed in the record of the case and shall be brought to the attention of the judge of the court or the presiding officer of the administrative agency. Provided, however, a general approval by the attorney general, state's attorney, or city attorney pursuant to § 16-18-2.5 shall be filed with the clerk of the applicable court and brought to the attention of the judge thereof.
Source: Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 7; SL 2011, ch 256 (Supreme Court Rule 11-13), eff. July 1, 2011.
16-18-2.9. Qualifications of supervising lawyer--Professional responsibility. A supervising lawyer under whose supervision a legal intern or extern does any of the things permitted by §§ 16-18-2.4 to 16-18-2.7, inclusive, shall be a lawyer authorized to practice law in this state, and:
(1) Shall be approved by the dean of the school of law of the University of South Dakota or by the director of the externship program of the school of law; and such approval by the dean or the director may be general, may have time, scope, or case limitations, or may be on an ad hoc case by case basis; all such as the dean or the director shall from time to time determine. The approval may be modified or withdrawn by the dean or the director at any time without notice or hearing and without any showing of cause. Such approval shall be in writing except that at the option of the dean or the director the approval may be oral for all matters relating to the externship program.
(2) Shall assume personal professional responsibility for the conduct of the legal intern or extern.Source:
Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 8; SL 2011, ch 257 (Supreme Court Rule 11-14), eff. July 1, 2011.
16-18-2.10. Other rights not affected by provisions for legal assistance by legal interns or externs. Nothing contained in §§ 16-18-2.1 to 16-18-2.9, inclusive, shall affect the right of any person who is not admitted to practice law to do anything that he or she might lawfully do prior to the adoption of §§ 16-18-2.1 to 16-18-2.9, inclusive.
Source: Supreme Court Order No. 3, 1969; Supreme Court Rule 75-4, § 9; SL 2011, ch 258 (Supreme Court Rule 11-15), eff. July 1, 2011.
16-18-3 to 16-18-5. Repealed by SL 1974, ch 55, § 50.
16-18-5.1. Temporary waiver of admission requirements for nonresident defense counsel where county is experiencing significant increase in criminal cases. The Chief Justice of the South Dakota Supreme Court may waive any requirement of § 16-18-2 and admit any attorney licensed in the another jurisdiction within the United States, for a period not to exceed one year, for the limited purpose of defending any defendant charged in a county that is experiencing a significant increase in criminal cases such that the resources in that area cannot satisfy the needs of criminal defense if the Chief Justice deems that the waiver is necessary in the interest of the sound administration of justice.
Source: SL 2017, ch 42, § 2, eff. Mar. 13, 2017.
16-18-6. Contracts and powers of disbarred attorney void. Any contract, power of attorney, or other instrument authorizing, directing, or empowering, or attempting to authorize, direct, or empower any person whose license to practice law in the State of South Dakota has been revoked, to institute or attempt to institute any legal proceedings in any court of this state in behalf of the person or persons executing such power of attorney, contract, or other instrument, shall be and the same is hereby declared to be null and void.
Source: SL 1919, ch 115, § 1; SDC 1939 & Supp 1960, § 32.1207.
16-18-7. Solicitation, acceptance of employment, or practice by disbarred or suspended attorney as misdemeanor. Any person whose license to practice law has been revoked or suspended, who solicits or accepts any power of attorney or other instrument authorizing, directing, or empowering, or attempting to authorize, direct, or empower him to institute or attempt to institute any legal proceedings in any court of this state in behalf of the person executing such power of attorney or other instrument, or who attempts to institute any legal proceedings by virtue of the authority granted to him for such power of attorney or other instrument, or who solicits authority to act as agent for, or acts as agent for another in employing a licensed attorney at law to institute or attempt to institute legal proceedings in any court of this state in behalf of his principal, is guilty of a Class 2 misdemeanor.
Source: SL 1919, ch 115, § 1; SDC 1939, § 13.1256; SL 1979, ch 150, § 15.
16-18-8. Assistance to or acceptance of employment from disbarred or suspended attorney as misdemeanor. Any licensed attorney at law who accepts employment from, or assists, or agrees to assist any person whose license to practice law has been revoked or suspended, in any proceedings instituted or attempted to be instituted in any of the courts of this state, by such person by virtue of the power of attorney or other instrument or agency referred to in § 16-18-7, is guilty of a Class 2 misdemeanor.
Source: SL 1919, ch 115, § 2; SDC 1939, § 13.1256; SL 1979, ch 150, § 16.
16-18-9. Attorney's power to execute bonds and instruments for client. An attorney and counselor at law has power to execute in the name of his client a bond or other written instrument necessary and proper for the prosecution of an action or proceeding about to be or already commenced; or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein.
Source: PolC 1877, ch 18, § 6, subdiv 1; CL 1887, § 467, subdiv 1; RPolC 1903, § 699, subdiv 1; RC 1919, § 5263 (1); Supreme Court Rule 14, 1939; SDC 1939 & Supp 1960, § 32.1202 (1).
16-18-10. Attorney not to be surety--Violation as misdemeanor. No practicing attorney and counselor at law shall be a surety in any suit or proceeding which may be instituted in any of the courts of this state. A violation of this section is a Class 2 misdemeanor.
Source: SL 1872-3, ch 48, § 1; PolC 1877, ch 18, § 8; CL 1887, § 469; RPolC 1903, § 701; RC 1919, § 5265; Supreme Court Rule 16, 1939; SDC 1939 & Supp 1960, § 32.1204; SL 1979, ch 150, § 17.
16-18-11. Attorney's power to bind client by agreements--Evidence of agreement. An attorney and counselor at law has power to bind his client to any agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.
Source: PolC 1877, ch 18, § 6, subdiv 2; CL 1887, § 467, subdiv 2; RPolC 1903, § 699, subdiv 2; RC 1919, § 5263 (2); Supreme Court Rule 14, 1939; SDC 1939 & Supp 1960, § 32.1202 (2).
16-18-12. Proof of authority required of attorney. The court may on motion of either party and on showing of reasonable grounds therefor, require the attorney for the adverse party, or for any one of the several adverse parties, to produce or prove by his oath or otherwise the authority under which he appears, and until he does so may stay all proceedings by him on behalf of the parties for whom he assumes to appear.
Source: PolC 1877, ch 18, § 7; CL 1887, § 468; RPolC 1903, § 700; RC 1919, § 5264; Supreme Court Rule 15, 1939; SDC 1939 & Supp 1960, § 32.1203.
16-18-13. Attorney's duty to respect courts. It is the duty of an attorney and counselor at law to maintain the respect due to the courts of justice and judicial officers.
Source: PolC 1877, ch 18, § 4, subdiv 1; CL 1887, § 465, subdiv 1; RPolC 1903, § 697, subdiv 1; RC 1919, § 5262 (1); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (1).
16-18-14. Attorney's duty to respect reputation of parties and witnesses. It is the duty of an attorney and counselor at law to abstain from all offensive personalities and to advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged.
Source: PolC 1877, ch 18, § 4, subdiv 5; CL 1887, § 465, subdiv 5; RPolC 1903, § 697, subdiv 5; RC 1919, § 5262 (5); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (5).
16-18-15. Attorney not to maintain unjustified actions or defenses--Criminal defense excepted. It is the duty of an attorney and counselor at law to counsel or maintain no other actions, proceedings, or defenses than those which appear to him legal and just, except the defense of a person charged with a public offense.
Source: PolC 1877, ch 18, § 4, subdiv 2; CL 1887, § 465, subdiv 2; RPolC 1903, § 697, subdiv 2; RC 1919, § 5262 (2); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (2).
16-18-16. Attorney not to maintain action for improper motives. It is the duty of an attorney and counselor at law not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest.
Source: PolC 1877, ch 18, § 4, subdiv 6; CL 1887, § 465, subdiv 6; RPolC 1903, § 697, subdiv 6; RC 1919, § 5262 (6); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (6).
16-18-17. Attorney's duty to represent the oppressed. It is the duty of an attorney and counselor at law never to reject for any consideration personal to himself, the cause of the defenseless or the oppressed.
Source: PolC 1877, ch 18, § 4, subdiv 7; CL 1887, § 465, subdiv 7; RPolC 1903, § 697, subdiv 7; RC 1919, § 5262 (7); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (7).
16-18-18. Attorney's duty to respect client's confidence. It is the duty of an attorney and counselor at law to maintain inviolate the confidence, and at any peril to himself to preserve the secret of his client.
Source: PolC 1877, ch 18, § 4, subdiv 4; CL 1887, § 465, subdiv 4; RPolC 1903, § 697, subdiv 4; RC 1919, § 5262 (4); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (4).
16-18-19. Attorney's duty to use truthful means. It is the duty of an attorney and counselor at law to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law.
Source: PolC 1877, ch 18, § 4, subdiv 3; CL 1887, § 465, subdiv 3; RPolC 1903, § 697, subdiv 3; RC 1919, § 5262 (3); Supreme Court Rule 13, 1939; SDC 1939 & Supp 1960, § 32.1201 (3).
16-18-20. Attorney's power to receive money for client--Unauthorized discharge of claim prohibited. An attorney and counselor at law has power to receive money claimed by his client in an action or proceeding during the pendency thereof or afterwards unless he has been previously discharged by his client, and upon payment thereof, and not otherwise to discharge the claim or acknowledge satisfaction of the judgment.
Source: PolC 1877, ch 18, § 6, subdiv 3; CL 1887, § 467, subdiv 3; RPolC 1903, § 699, subdiv 3; RC 1919, § 5263 (3); Supreme Court Rule 14, 1939; SDC 1939 & Supp 1960, § 32.1202 (3).
16-18-20.1. Record of client funds--Time preserved--Failure to keep as ground for discipline. Every attorney shall maintain complete records of the handling, maintenance, and disposition of all funds, securities, and other properties of a client at any time in his possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of five years after final distribution of such funds, securities, or other properties or any portion thereof, and failure to keep such records shall be grounds for appropriate disciplinary proceedings.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 4; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XVIII.
16-18-20.2. Attorney licensing--Trust accounting records and procedures. The provisions of this rule apply to all members of the State Bar of South Dakota concerning trust funds received or disbursed by them in the course of their professional practice of law within the State of South Dakota. However, these provisions shall not apply to (1) full-time members of the Judiciary, i.e., Supreme Court Justices, Circuit Court Judges and Magistrate Judges, (2) nonresident attorneys licensed to practice in South Dakota who comply with comparable trust accounting requirements in the state wherein they maintain their office, and (3) non-profit legal services organizations that file a copy of their annual independent audit with the State Bar, (4) non-resident attorneys licensed to practice in South Dakota who have not represented a South Dakota client during the reporting period, or (5) members who have been in an inactive status for the full reporting period. In addition, all lawyers required to disclose the absence of professional liability insurance as required pursuant to Rule 1.4(c) must sign the additional verification and certification of disclosure as reflected at the end of the Certificate of Compliance and Insurance Disclosure form.
MINIMUM TRUST ACCOUNTING RECORDS
The minimum trust accounting records which shall be maintained are:
(1) A separate bank account or accounts and, if utilized, a separate savings and loan association account or accounts. Such accounts shall be located in South Dakota unless the client otherwise directs in writing. The account or accounts shall be in the name of the lawyer or law firm and clearly labeled and designated as a "trust account."
(2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying:
(a) The date and source of all trust funds received; and
(b) The client or matter for which the funds were received.
(3) Original cancelled checks, or copies of both sides of the original checks produced through truncation or check imaging, or the equivalent, all of which must be numbered consecutively.
(4) Other documentary support for all disbursements and transfers from the trust account.
(5) A separate trust accounts receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least:
(a) The identification of the client or matter for which the funds were received, disbursed, or transferred;
(b) The date on which all trust funds were received, disbursed, or transferred;
(c) The check number for all disbursements; and
(d) The reason, such as "settlement," "closing" or retainer," for which all trust funds were received, disbursed, or transferred.
(6) A separate file, ledger or computer file with an individual card, page or computer document for each client or matter, showing all individual receipts, disbursements, or transfers and any unexpended balance, and containing:
(a) The identification of the client or matter for which trust funds were received, disbursed, or transferred;
(b) The date on which all trust funds were received, disbursed, or transferred;
(c) The check number of all disbursements; and
(d) The reason, such as "settlement," "closing" or "retainer," for which all trust funds were received, disbursed, or transferred.
(7) All bank or savings and loan association statements for all trust accounts.
MINIMUM TRUST ACCOUNTING PROCEDURES
The minimum trust accounting procedures which shall be followed by all attorneys practicing in South Dakota who receive or disburse trust money or property are:
(1) The lawyer shall cause to be made monthly:
(a) Reconciliations of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and any other items necessary to reconcile the balance per bank with the balance per the checkbook and the cash receipts and disbursements journal; and
(b) A comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards, pages, or computer documents, together with specific descriptions of any difference between the two totals and reasons therefore.
(2) At least annually, a detailed listing identifying the balance of the unexpended trust money held for each client or matter.
(3) The above reconciliations, comparisons, and listing shall be retained for at least six years.
(4) The lawyer shall file with the State Bar of South Dakota a trust accounting certificate showing compliance with these rules annually, which certificate shall be filed annually between December 1 and January 31 on a form approved by the Disciplinary Board.
The following shall be cause for the Disciplinary Board to order an audit of a lawyer's or law firm's trust accounts:
(1) Failure to file the trust account certificate required by this rule;
(2) A trust account check is returned for insufficient funds or for uncollected funds, absent bank error;
(3) A petition for creditor relief is filed on behalf of an attorney;
(4) Felony charges are filed against an attorney;
(5) An attorney is adjudged insane or mentally incompetent;
(6) A claim against the attorney is filed with the Clients' Security Fund;
(7) When authorized by statute or court rule; or
(8) Upon court order.
COST OF AUDIT
Audits conducted in any of the circumstances enumerated above shall be at the cost of the attorney audited only when the audit reveals that the attorney was not in substantial compliance with the trust accounting requirements or when the audit was precipitated by the failure to file the trust account compliance report. It shall be the obligation of any attorney who is being audited to produce all records and papers concerning property and funds held in trust and to provide such explanations as may be required for the audit. Records of general accounts are not required to be produced except to verify that trust money has not been deposited thereto. If it has been determined that trust money has been deposited into a general account, all of the transactions pertaining to any firm account will be subject to audit.
CERTIFICATE OF COMPLIANCE
TO: The Secretary-Treasurer The State Bar of South Dakota 222 East Capitol Avenue Pierre, South Dakota 57501
I (We), __________, a member(s) of the State Bar of South Dakota certify that during the twelve-month period preceding the date of this report: (check the following items where applicable and/or fill in the blanks)
1. I have engaged in the private practice of law in South Dakota as:
____ (a) a sole practitioner;
____ (b) a partner or shareholder of a firm practicing under the name of __________;
____ (c) an associate of a sole practitioner or of a firm, as the case may be, practicing under the name of __________ __________ and I maintain separate books, records and accounts showing all legal business performed by me.
____ 2. I have not engaged in the practice of law in South Dakota, and I have neither handled nor been responsible for either clients' trust funds or clients' trust property in South Dakota.
____ 3. I have practiced law in South Dakota exclusively as an employee of (designate name of government agency, corporation, or other nonmember of the Bar) __________, and I do not handle or become responsible for money or property in a lawyer-client relationship, other than money or property received in the course of official duties and disposed of in accordance with regulations and practices of (designate name of government agency) __________.
____ (a) I (we) have served as a trustee in one or more cases under Title 11 of the United States Code, and I am accountable for all funds I handled in connection therewith to the Office of the United States Trustee, which office is statutorily charged with the responsibility for reviewing and supervising my trust operations; therefore, my handling of such funds is not separately accounted for herein in connection with my private practice of law, and I further certify that I am in compliance with all such accounting requirements of said Office.
____ 4. I have engaged in the practice of law in South Dakota as an employee or as an associate of a sole practitioner or of a firm, as the case may be, practicing under the name of __________, to the best of my knowledge all legal business performed by me is shown in the books, records and accounts of such sole practitioner or firm.
(Print or type the following information)
Full Name __________
Business Address __________
5. My trust account(s) or the trust account(s) of the firm or association of which I am a partner or shareholder is at the __________ (name and address of banking institution) and bears the following name(s) and number(s) __________.
6. During the fiscal period ended __________ to the best of my knowledge I, or the firm of which I am a member, as the case may be, maintained books, records and accounts to record all money and trust property received and disbursed in connection with my/our practice, and as a minimum I/we maintained:
Yes or No
(a) A separate bank account or accounts located in *South Dakota (__________), in the name of the lawyer or law firm and clearly labeled and designated a "trust account." __________
*An out of state member may strike "South Dakota" and insert the state where his/her trust account is located.
(b) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying the date and source of all trust funds received, and specific identification of the client or matter for whom the funds were received. __________
(c) Original cancelled checks or copies of both sides of the original checks produced through truncation or check imaging, or the equivalent, for all trust disbursements. __________
(d) Other documentary support for all disbursements and transfers from the trust account. __________
(e) A separate trust account receipts and disbursements journal, including columns for receipts, disbursements, and the account balance, disclosing the client, check number, and reason for which the funds were received, disbursed or transferred. __________
(f) A separate file or ledger, with an individual card or page for each client and matter, showing all individual receipts, disbursements and any unexpended balance. __________
(g) All bank statements for trust accounts. __________
(h) Complete records of all funds, securities and other properties of a client coming into my/our possession, and rendered appropriate accounts to my/our clients regarding them.
____ 7. During the same fiscal period identified in section 6 above, I, or the firm of which I am a member, complied with the required trust accounting procedures, and as a minimum I/we prepared monthly trust comparisons, including bank reconciliations and an annual detailed listing identifying the balance of the unexpended trust money held for each client or matter.
____ 8. In connection with section 7 above, I or the firm of which I am a member, have completed the following procedures during the fiscal period herein: compared each month the total of trust liabilities and the total of each trust bank reconciliation, and there were (check one of the following):
____ no differences between the totals, excepting those determined to be the result of bank error;
____ differences. (Give full particulars below, identifying the months in which there were differences, the amounts involved, and the reason for each item contributing to a difference. Attach additional pages if necessary.)
9. (A) * *The undersigned lawyer(s) do not have professional liability insurance; or
(B) * The undersigned lawyer(s) have professional liability insurance, the name of the insurance carrier, policy number and limits are as follows:
I am a member of the State Bar of South Dakota filing this report, and to the best of my knowledge and belief the facts as reported herein are accurate, and I certify that I have at all material times been in compliance with Rule 1.15 of the Rules of Professional Conduct entitled Safekeeping Property and SDCL 16-18-20.1 and 16-18-20.2.
All Responding Lawyers Signatures:
*Additional signature and attachment is needed if responding lawyer checked box 9(A): The undersigned lawyer(s) not having insurance, do hereby certify that pursuant to Rule 1.4(c), I have advised my clients of the lack of professional liability insurance during the reporting period and I have attached hereto a copy of my law office letterhead disclosing the lack of insurance, in the required format, pursuant to Rule 7.5 of the Rules of Professional Responsibility.
All Responding Lawyers Signatures:
*If you checked box 9(A), you must attach a representative copy of the letterhead you used to disclose the lack of insurance to your clients.
Source: SL 1991, ch 444 (Supreme Court Rule 91-10); SL 1992, ch 368 (Supreme Court Rule 92-2); SL 1993, ch 344, § 39X; SL 1993, ch 399 (Supreme Court Rule 93-16); SL 1998, ch 320; SL 1999, ch 270; SL 2001, ch 294, § 1; SL 2004, ch 332 (Supreme Court Rule 04-05), effective July 1, 2004.
16-18-21. Attorney's lien on proceeds of action. An attorney and counselor at law has a lien for a general balance of compensation in and for each case upon:
(1) Any paper belonging to his client which has come into his hands in the course of his professional employment in the case for which the lien is claimed;
(2) Money in his hands belonging to his client in the case;
(3) Money due his client in the hands of the adverse party or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party or attorney of such party, if the money is in the possession or under the control of such attorney, which notice shall state the amount claimed and in general terms for what services; after judgment in any court of record such notice may be given and the lien made effective against the judgment debtor by entering it in the judgment docket.Source:
PolC 1877, ch 18, § 9; CL 1887, § 470; RPolC 1903, § 702; RC 1919, § 5266; SDC 1939 & Supp 1960, § 32.1205; SL 1983, ch 157, § 3.
16-18-22. Bond to release attorney's lien--Bill of particulars required of attorney. Any person interested may release such lien by executing a bond in a sum double the amount claimed, or in such sum as may be fixed by a judge, payable to the attorney, with security to be approved by the clerk of courts, conditioned to pay the amount finally due the attorney for his services which amount may be ascertained by suit on the bond. Such lien will be released unless the attorney within ten days after demand therefor furnishes any party interested a full and complete bill of particulars of the services and amount claimed for each item, or written contract with the party for whom the services were rendered.
Source: PolC 1877, ch 18, § 10; CL 1887, § 471; RPolC 1903, § 703; RC 1919, § 5267; SDC 1939 & Supp 1960, § 32.1206.
16-18-23. Refusal by attorney to pay money to client as misdemeanor. An attorney who receives the money or property of his client in the course of his professional business, and refuses to pay or deliver it in a reasonable time after demand, is guilty of a Class 2 misdemeanor.
Source: PolC 1877, ch 18, § 17; CL 1887, § 478; RPolC 1903, § 705; RC 1919, § 5268; SDC 1939, § 13.1257; SL 1979, ch 150, § 18.
16-18-24. Lien as justification for withholding money from client. When the attorney claims to be entitled to a lien upon the money or property, he is not liable to the penalties of § 16-18-23 until the person demanding the money or property proffers sufficient security for the payment of the amount of the attorney's claim when it is legally ascertained.
Source: PolC 1877, ch 18, § 18; CL 1887, § 479; RPolC 1903, § 706; RC 1919, § 5269; SDC 1939, § 13.1257.
16-18-25. Security given by attorney for payment to client. An attorney is not in any case liable under § 16-18-23, provided he gives sufficient security that he will pay over the whole or any portion thereof to the claimant, when he is found entitled thereto.
Source: PolC 1877, ch 18, § 19; CL 1887, § 480; RPolC 1903, § 707; RC 1919, § 5270; SDC 1939, § 13.1257.
16-18-26. Misconduct by attorney as misdemeanor. Every attorney at law who:
(1) Practices any deceit or collusion, or consents to the same with intent to deceive the court or any party;
(2) Intentionally delays his client's suit with a view to his own gain;
(3) Intentionally receives any money or allowance for or on account of any money which he has not paid or become answerable for;
(4) Makes a subsequent application to a different judge to stay the same trial of any criminal prosecution with knowledge that application for such stay has been made and denied without leave reserved to renew it, before a judge authorized to grant it; or
(5) Knowingly permits any person not his general law partner or a clerk in his office to sue out any process or to prosecute or defend any action in his name;
is guilty of a Class 2 misdemeanor.
Source: PenC 1877, §§ 203, 210, 211; CL 1887, §§ 6403, 6410, 6411; RPenC 1903, §§ 206, 213, 214; RC 1919, §§ 3794, 3800, 3801; SDC 1939, § 13.1249; SL 1979, ch 150, § 19.
16-18-27. Attorneys for public agencies may permit use of name or office. Subdivision 16-18-26(5) shall not apply where the attorney general, state's attorney, or any public prosecutor or attorney for a public body permits the use of his name or office by an attorney chosen by any party in interest to sue, prosecute, defend, or participate in any action or proceeding authorized by law to be sued, prosecuted, or defended in the name of the state, the people, or of any public officer, board, or representative group of the same or any political subdivision or public district thereof.
Source: PenC 1877, § 212; CL 1887, § 6412; RPenC 1903, § 215; RC 1919, § 3802; SDC 1939, § 13.1249.
16-18-28. Liability of attorney for treble damages for misconduct. Any attorney who violates any of the provisions of subdivision 16-18-26(1), (2), or (3) shall be liable for treble damages to the party injured, which damages may be recovered in a civil action from such attorney.
Source: PenC 1877, § 210; CL 1887, § 6410; RPenC 1903, § 213; RC 1919, § 3800; SDC 1939 & Supp 1960, § 37.1911.
16-18-29. Acceptance of consideration from defendant by attorney for public agency as misdemeanor. Every attorney general, state's attorney, or other public prosecutor, or any attorney directly or indirectly connected therewith as a partner, who receives directly or indirectly from or on behalf of any defendant any valuable consideration, upon any understanding or agreement, express or implied, having relation to the defense of any action or proceeding, civil or criminal, for or in behalf of the public against such defendant, which action or proceeding is then under preparation, pending, or having theretofore been prosecuted by such attorney, is guilty of a Class 2 misdemeanor. Nothing in this section shall prohibit any attorney from acting as such on his own behalf when prosecuted either civilly or criminally.
Source: PenC 1877, §§ 730 to 732; CL 1887, §§ 6921 to 6923; RPenC 1903, §§ 754 to 756; RC 1919, §§ 4370 to 4372; SDC 1939, § 13.1250; SL 1979, ch 150, § 20.
16-18-30. Repealed by SL 1979, ch 150, § 21.
16-18-31. Withdrawal of attorney of record--When permitted. No attorney who has appeared of record in any civil or criminal proceeding shall be permitted to withdraw in any pending action except by order of the court after notice to all parties concerned.
Source: Supreme Court Rule 80-9.
16-18-32. Attorney authorized to remove files from offices of clerks of court--Electronic transmission of copies. An attorney and counselor at law may temporarily withdraw and transport to the attorney's office at the attorney's expense, for purposes of inspection or copying, any file which is open to public inspection in the offices of the clerks of court. Any such file shall be returned if needed and requested by the court or the clerk thereof. This authorization may be suspended, in regard to any individual attorney, by the presiding judge for good cause or for previous failure to comply with the provisions of this section. In lieu of file removal, copies of the file or requested portions may be transmitted to the attorney electronically as determined by circuit policy.
Source: SL 1984, ch 153; SL 2010, ch 108, § 1.
16-18-33. Repealed by SL 1989, ch 30, § 50.
16-18-34. Definition of legal assistant. Legal assistants (also known as paralegals) are a distinguishable group of persons who assist licensed attorneys in the delivery of legal services. Through formal education, training, and experience, legal assistants have knowledge and expertise regarding the legal system, substantive and procedural law, the ethical considerations of the legal profession, and the Rules of Professional Conduct as stated in chapter 16-18, which qualify them to do work of a legal nature under the employment and direct supervision of a licensed attorney. This rule shall apply to all unlicensed persons employed by a licensed attorney who are represented to the public or clients as possessing training or education which qualifies them to assist in the handling of legal matters or document preparation for the client.
Source: SL 1992, ch 370 (Supreme Court Rule 92-5); Supreme Court Rule 97-25.
16-18-34.1. Minimum qualifications. Any person employed by a licensed attorney as a legal assistant must meet the minimum qualifications of:
(1) Successful completion of the Certified Legal Assistant (CLA) examination of the National Association of Legal Assistants, Inc.; or
(2) Graduation from an ABA approved program of study for legal assistants; or
(3) Graduation from a course of study for legal assistants which is institutionally accredited but not ABA approved, and which requires not less than the equivalent of sixty semester hours of classroom study; or
(4) Graduation from a course of study for legal assistants, other than those set forth in (2) and (3) above, plus not less than six months of in-house training as a legal assistant; or
(5) A baccalaureate degree in any field, plus not less than six months in-house training as a legal assistant; or
(6) A minimum of three years of law-related experience under the supervision of a licensed attorney, including at least six months of in-house training as a legal assistant; or
(7) Two years of in-house training as a legal assistant.
Provided, further, that any legal assistant hereunder shall have a high school diploma or general equivalency diploma (GED).
For purposes of these standards, "in-house training as a legal assistant" means legal education of the employee by a licensed attorney concerning legal assistant duties and these guidelines. In addition to review and analysis of assignments, the legal assistant should receive a reasonable amount of instruction directly related to the duties and obligations of the legal assistant and the Rules of Professional Conduct as stated in this chapter.
Source: Supreme Court Rule 97-25.
16-18-34.2. Utilization of legal assistants. Utilization of legal assistants by licensed attorneys is subject to the following rules:
(1) An attorney may permit a legal assistant to assist in all aspects of the attorney's representation of a client, provided that:
(a) The status of the legal assistant is disclosed at the outset of any professional relationship with a client, other attorneys, courts or administrative agencies, or members of the general public;
(b) The attorney establishes the attorney-client relationship, is available to the client, and maintains control of all client matters;
(c) The attorney reviews the legal assistant's work product and supervises performance of the duties assigned;
(d) The attorney remains responsible for the services performed by the legal assistant to the same extent as though such services had been furnished entirely by the attorney and such actions were those of the attorney;
(e) The services performed by the legal assistant supplement, merge with and become part of the attorney's work product;
(f) The services performed by the legal assistant do not require the exercise of unsupervised legal judgment; this provision does not prohibit a legal assistant appearing and representing a client at an administrative hearing provided that the agency or board having jurisdiction does not have a rule forbidding persons other than licensed attorneys to do so and providing that the other rules pertaining to the utilization of legal assistants are met; and
(g) The attorney instructs the legal assistant concerning standards of client confidentiality.
A legal assistant may not establish the attorney-client relationship, set legal fees, give legal advice or represent a client in court; nor encourage, engage in, or contribute to any act which would constitute the unauthorized practice of law.
(2) A legal assistant may author and sign correspondence on the attorney's letterhead, provided the legal assistant's status is indicated and the correspondence does not contain legal opinions or give legal advice.
(3) An attorney may identify a legal assistant by name and title on the attorney's letterhead and on business cards identifying the attorney's firm.Source:
Supreme Court Rule 97-25.
16-18-34.3. Ethical considerations. The proper use of assistants who are not licensed attorneys significantly increases the ability of attorneys to provide quality professional services to the public at reasonable cost. An attorney cannot, however, delegate his or her ethical proscriptions by claiming that the violation was that of an employee. Thus, in order to secure compliance with the Rules of Professional Conduct more specifically as stated in chapter 16-18, the following ethical guidelines are applicable to the attorney's use of nonlicensed assistants:
(1) An attorney shall ascertain the assistant's abilities, limitations, and training, and must limit the assistant's duties and responsibilities to those that can be competently performed in view of those abilities, limitations, and training.
(2) An attorney shall educate and train assistants with respect to the ethical standards which apply to the attorney.
(3) An attorney is responsible for monitoring and supervising the work of assistants in order to assure that the services rendered by the assistant are performed competently and in a professional manner.
(4) An attorney is responsible for assuring that the assistant does not engage in the unauthorized practice of law.
(5) An attorney is responsible for the improper behavior or activities of assistants and must take appropriate action to prevent recurrence of improper behavior or activities.
(6) Assistants who deal directly with an attorney's clients must be identified to those clients as nonlawyers, and the attorney is responsible for obtaining the understanding of the clients with respect to the rule of and the limitations which apply to those assistants.
(7) A legal assistant should understand the Rules of Professional Conduct and these rules in order to avoid any action which would involve the attorney in a violation of chapter 16-18, or give the appearance of professional impropriety.
(8) An attorney takes reasonable measures to insure that all client confidences are preserved by a legal assistant.
(9) An attorney takes reasonable measures to prevent conflicts of interest resulting from a legal assistant's other employment or interest insofar as such other employment or interest would present a conflict of interest if it were that of the attorney.
(10) An attorney may include a charge for the work performed by a legal assistant in setting a charge for legal services.
(11) An attorney may not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal business. An attorney may compensate a legal assistant based on the quantity and quality of the legal assistant's work and the value of that work to a law practice, but the legal assistant's compensation may not be, by advance agreement, contingent upon the profitability of the attorney's practice.
The violation of the ethical guidelines of this section by a paralegal or the supervising attorney shall be grounds for discipline of the supervising attorney under chapter 16-19.
Source: Supreme Court Rule 97-25.
16-18-34.4. Certain individuals disqualified. The following persons shall not serve as a legal assistant in the State of South Dakota except upon application to and approval of the Supreme Court:
(1) Any person convicted of a felony;
(2) Any person disbarred or suspended from the practice of law in any jurisdiction;
(3) Any person placed on disability inactive status under § 16-19-48 or 16-19-92;
(4) Any person placed on temporary suspension from the practice of law under § 16-19-35.1.Source:
Supreme Court Rule 97-25.
16-18-34.5. Application by disqualified persons--Requirements--Hearing--Burden of proof. The application by a person disqualified under § 16-18-34.4 must establish the applicant's good moral character, competency, education, training, or experience in the legal system, substantive and procedural law, and the Rules of Professional Conduct, and the ability to comply with the ethical considerations of § 16-18-34.3.
The applicant shall have the burden of demonstrating by clear and convincing evidence that the applicant has the moral and ethical qualifications, competency and learning in law required to act as a legal assistant in this state and that acting as a legal assistant within the state will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest.
The Supreme Court may act upon the application or, where no recommendations have been made under § 16-18-34.7, refer the application to the Disciplinary Board if the applicant was an attorney or to a circuit judge for testimony, findings, and recommendations. The cost of such hearing will be paid as provided by § 16-19-70.1.
The Supreme Court may deny the application if it finds approval would be detrimental to the integrity and standing of the bar or the administration of justice or subversive of the public interest. If the applicant has met the burden of proof, the Supreme Court may grant the application and impose such restrictions or conditions upon the employment and supervision of legal assistants as the court deems appropriate for the protection of the public.
Source: Supreme Court Rule 97-25.
16-18-34.6. Revocation of order for disqualified persons--Hearing--Burden of proof. The order granting approval for a disqualified person to act as a legal assistant may be revoked by the Supreme Court upon violation of the conditions set by the court, violation of the requirements of §§ 16-18-34 to 16-18-34.5, inclusive, or the termination of employment with the supervising attorney without an approved replacement supervising attorney. The Supreme Court may act to revoke the order upon its own motion, or upon a complaint, may refer the complaint to the Disciplinary Board or a circuit judge for testimony, findings, and recommendations. The cost of such hearing will be paid as provided by § 16-19-70.1.
Source: Supreme Court Rule 97-25.
16-18-34.7. Recommendations in attorney disciplinary proceedings. Any recommendation for disbarment or suspension made by the Disciplinary Board under § 16-19-67 or the referee under § 16-19-68 shall contain a recommendation as to the restrictions or conditions of employment and supervision of the accused attorney as a legal assistant.
Source: Supreme Court Rule 97-25.
APPENDIX A. APPENDIX TO CHAPTER 16-18
SOUTH DAKOTA RULES OF PROFESSIONAL CONDUCT
1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
1.6. Confidentiality of Information.
1.7. Conflict of Interest: Current Clients.
1.8. Conflict of Interest: Current Clients, Specific Rules.
1.9. Duties to Former Clients.
1.10. Imputation of Conflicts of Interest General Rule.
1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees.
1.12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral.
1.13. Organization as Client.
1.14. Client With Diminished Capacity.
1.15. Safekeeping Property.
1.16. Declining or Terminating Representation.
1.17. Sale of Law Practice.
1.18. Duties to Prospective Client.
2.3. Evaluation for Use by Third Persons.
2.4. Lawyer Serving as Third-Party Neutral.
3.1. Meritorious Claims and Contentions.
3.2. Expediting Litigation.
3.3. Candor Toward the Tribunal.
3.4. Fairness to Opposing Party and Counsel.
3.5. Impartiality and Decorum of the Tribunal.
3.6. Trial Publicity.
3.7. Lawyer as Witness.
3.8. Special Responsibilities of a Prosecutor.
3.9. Advocate in Nonadjudicative Proceedings.
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS.
4.1. Truthfulness in Statements to Others.
4.2. Communication with Person Represented by Counsel.
4.3. Dealing with Unrepresented Person.
4.4. Respect for Rights of Third Persons.
LAW FIRMS AND ASSOCIATIONS.
5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers.
5.2. Responsibilities of a Subordinate Lawyer.
5.3. Responsibilities Regarding Nonlawyer Assistants.
5.4. Professional Independence of a Lawyer.
5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law.
5.6. Restrictions on Right to Practice.
5.7. Responsibilities Regarding Law-Related Services.
6.1. Voluntary Pro Bono Publico Service.
6.2. Accepting Appointments.
6.3. Membership in Legal Services Organization.
6.4. Law Reform Activities Affecting Client Interests.
6.5. Nonprofit and Court-Annexed Limited Legal Services Programs.
INFORMATION ABOUT LEGAL SERVICES.
7.1. Communications Concerning a Lawyer's Services.
7.3. Direct Contact with Prospective Clients.
7.4. Communication of Fields of Practice and Specialization.
7.5. Firm Names and Letterheads.
MAINTAINING THE INTEGRITY OF THE PROFESSION.
8.1. Bar Admission and Disciplinary Matters.
8.2. Judicial and Legal Officials.
8.3. Reporting Professional Misconduct.
8.5. Disciplinary Authority; Choice of Law.
PREAMBLE: A LAWYER'S RESPONSIBILITIES
 A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
 As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
 In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
 In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
 A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
 As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
 Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.
 A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
 In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.
 The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
 To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.
 The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
 Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
 The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.
 The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.
 Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
 Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
 Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.
 Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
 Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.
 The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.
Rule 1.0. Terminology
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and e-mail. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
Rule 1.1. Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 1.3. Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4. Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) If a lawyer does not have professional liability insurance with limits of at least $100,000, or if during the course of representation, the insurance policy lapses or is terminated, a lawyer shall promptly disclose to a client by including as a component of the lawyer's letterhead, using the following specific language, either that:
(1) "This lawyer is not covered by professional liability insurance;" or
(2) "This firm is not covered by professional liability insurance."
(d) The required disclosure in 1.4(c) shall be included in every written communication with a client.
(e) This disclosure requirement does not apply to lawyers who are members of the following classes: § 16-18-20.2(1),(3),(4) and full-time, in-house counsel or government lawyers, who do not represent clients outside their official capacity or in-house employment.
Rule 1.5. Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable amount for fees or expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of potential expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent except for disclosures that are impliedly authorized in order to carry out the representation or the disclosure is permitted by, and except as stated in paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;
(2) to secure legal advice about the lawyer's compliance with these Rules;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(4) to the extent that revelation appears to be necessary to rectify the consequences of a client's criminal or fraudulent act in which the lawyer's services had been used; or
(5) to comply with other law or a court order.
Rule 1.7. Conflict of Interest: Current Clients
(a) Except as provided by paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or same matter before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Rule 1.8. Conflict of Interest: Current Clients, Specific Rules
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client and the gift is not significantly disproportionate to those given to other donees similarly related to donor. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement, or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.
Rule 1.9. Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.10. Imputation of Conflicts of Interest General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7, 1.9, and 1.13 and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
Rule 1.12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
Rule 1.13. Organization as Client
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.
(d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
Rule 1.14. Client With Diminished Capacity
(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
Rule 1.15. Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third party. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(b) Upon receiving funds or other property in which a client or third party has an interest, a lawyer shall promptly notify the client or third party. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third party any funds or other property that the client or third party is entitled to receive and, upon request by the client or third party, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
(d) Preserving Identity of Funds and Property of Client.
(1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(i) Funds reasonably sufficient to pay bank charges may be deposited therein.
(ii) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(2) A lawyer shall:
(i) Promptly notify a client of the receipt of his funds, securities, or other properties.
(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(iii) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to his client regarding them.
(iv) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
(3) A lawyer shall create and maintain an interest-bearing account for clients' funds which are nominal in amount or to be held for a short period of time in compliance with the following provisions:
(i) No earnings from such an account shall be made available to a lawyer or firm.
(ii) The account shall include all clients' funds which are nominal in amount or to be held for a short period of time.
(iii) An interest-bearing trust account shall be established with any bank authorized by federal or state law to do business in South Dakota and insured by the Federal Deposit Insurance Corporation. Funds in each interest-bearing trust account shall be subject to withdrawal upon request and without delay.
(iv) The rate of interest payable on any interest-bearing trust account shall not be less than the rate paid by the depository institution to regular, nonlawyer depositors unless reduced to offset bank administrative costs. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of deposit funds so long as there is no impairment of the right to withdraw or transfer principal immediately.
(4) Lawyers or law firms depositing client funds in a trust savings account shall direct the depository institution:
(i) To remit interest or dividends, net of any service charges or fees, on the average monthly balance in the account, or as otherwise computed in accordance with an institution's standard accounting practice, at least quarterly, to the South Dakota Bar Foundation;
(ii) To transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and
(iii) To transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance of the period for which the report is made.
(1) This is a mandatory program for lawyers and law firms, whether proprietorships, partnerships or professional corporations or other business organization for the practice of law who hold clients' or third party's funds.
(2) The program shall apply to all clients whose funds on deposit are either nominal in amount or to be held for a short period of time.
(3) The following principles shall apply to clients' funds which are held by lawyers and law firms:
(i) No earnings from the funds may be made available to any lawyer or law firm.
(ii) Upon request of the client, earnings may be made available to the client whenever possible upon deposited funds which are neither nominal in amount nor are to be held for a short period of time; however, traditional attorney-client relationships do not compel attorneys to either invest clients' funds or to advise clients to make their funds productive.
(iii) Clients' funds which are nominal in amount or to be held for a short period of time shall be retained in an interest-bearing checking or savings trust account, with the interest (net of any service charge or fees) made payable to the South Dakota Bar Foundation.
(iv) The determination of whether clients' funds are nominal in amount or to be held for a short period of time rests in the sound judgment of each attorney or law firm. Such judgment is not subject to review. In making this determination the lawyer or law firm may consider the cost of establishing, maintaining and accounting for an individual client interest bearing trust account against the anticipated interest which would accrue to the benefit of the client.
(v) Notification of clients whose funds are nominal in amount or to be held for a short period of time is unnecessary for lawyers and law firms.
(4) The following principles shall apply to those clients' funds held in individual trust accounts established by lawyers or law firms not participating in the program:
(i) No earnings from the funds may be made available to any lawyer or law firm.
(ii) Upon request of a client, earnings may be made available to client whenever possible on deposited funds which are neither nominal in amount nor to be held for a short period of time; however, traditional attorney-client relationships do not compel attorneys either to invest clients' funds or to advise clients to make their funds productive.
(iii) Clients' funds which are nominal in amount or to be held for short periods of time, and for which individual income generation and allocation is not arranged with a financial institution, must be retained in a non-interest-bearing, demand trust account.
(iv) The determination of whether clients' funds are nominal in amount or to be held for a short period of time rests in the sound judgment of each attorney or law firm.
(5) Interest paid to the South Dakota Bar Foundation will be used for the following purposes:
(i) To help prevent crime;
(ii) To facilitate and improve the delivery of civil and criminal legal services and the administration of justice;
(iii) To encourage law-related education in the schools (K-12);
(iv) To encourage law-related education of adults including seminars and programs for charitable, civic and senior citizens groups;
(v) To give the general public information about how the courts and lawyers function; and
(vi) To issue publications educating the public about the United States legal system.
(6) Nonresident attorneys licensed to practice in South Dakota who comply with applicable IOLTA requirements in the state wherein they maintain their office are exempt from paragraph (3).
(7) A lawyer or law firm may petition the Supreme Court for a one-year exemption from mandatory participation in IOLTA upon the following grounds:
(i) The expected interest to be earned on the trust account is likely to be exceeded by bank charges imposed for participating in IOLTA; and
(ii) There is no reasonable alternative bank available to the lawyer or law firm whereby the likely interest to be earned would exceed bank charges for participating in IOLTA; or
(iii) Upon convincing grounds satisfactory to the Supreme Court for an exemption.
(iv) A petition for exemption may be filed in subsequent years if the petitioning lawyer or law firm meets the requirements of sections 7 (i), and 7 (ii) or section 7 (iii).
(v) The petition shall include documents establishing the grounds for exemption.
(vi) The petition for exemption shall be submitted to the Clerk of the Supreme Court. A copy of the petition shall be mailed to the State Bar of South Dakota.
Rule 1.16. Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Rule 1.17. Sale of Law Practice
A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:
(a) The agreement shall be in writing and may contain restrictions on the practice of law by the seller, and the seller may be the estate of a deceased lawyer.
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the file; and
(3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of sale.
Rule 1.18. Duties to Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as in Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Rule 2.1. Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
Rule 2.2. Reserved
Rule 2.3. Evaluation for Use by Third Persons
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
Rule 2.4. Lawyer Serving as Third-Party Neutral
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
Rule 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.2. Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Rule 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to timely correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. However, in a criminal matter, the lawyer shall not participate with the client in the presentation of the client's testimony which the lawyer knows to be false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Rule 3.4. Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
Rule 3.5. Impartiality and Decorum of the Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte on the merits with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt the tribunal.
Rule 3.6. Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
Rule 3.7. Lawyer as Witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client; or
(4) except as otherwise provided by statute.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Rule 3.8. Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to exculpate the guilt of the accused, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged exculpatory information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence relating to the lawyer's representation of a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees of other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Rule 3.9. Advocate in Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.2. Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Rule 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are to have a reasonable possibility of being in conflict with the interests of the client.
Rule 4.4. Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender, and or sender's lawyer if sender is represented.
LAW FIRMS AND ASSOCIATIONS
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the rules of professional conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Rule 5.2. Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Rule 5.4. Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer;
(3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer an agreed upon purchase price;
(4) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and.
(5) a lawyer may share court-awarded legal fees with a nonprofit 501 (c)(3) or 501 (c)(6) organization that employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice, and
(5) in all cases, the lawyer obtains a South Dakota sales tax license and tenders the applicable taxes pursuant to Chapter 10-45.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction, provided that the lawyer obtains a South Dakota sales tax license and tenders the applicable taxes pursuant to Chapter 10-45.
Rule 5.6. Restrictions on Right to Practice
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operation, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
Rule 5.7. Responsibilities Regarding Law-Related Services
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
Rule 6.1. Voluntary Pro Bono Publico Service
A lawyer should render public interest legal service.
A lawyer may discharge this responsibility by:
(a) providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations; or
(b) by service without compensation in public interest activities that improve the law, the legal system or the legal profession; or
(c) by financial support for organizations that provide legal services to persons of limited means.
Rule 6.2. Accepting Appointments
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the rules of professional conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
Rule 6.3. Membership in Legal Services Organization
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.
Rule 6.4. Law Reform Activities Affecting Client Interests
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rule 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
INFORMATION ABOUT LEGAL SERVICES
Rule 7.1. Communications Concerning a Lawyer's Services
(a) Definitions. For the purpose of this Rule 7.1, the following terms shall have the following meanings:
(1) "communication" means any message or offer made by or on behalf of a lawyer concerning the availability of the lawyer for professional employment which is directed to any former, present, or prospective client, including, but not limited to, the following:
(i) any use of firm name, trade name, fictitious name, or other professional designation of such lawyer;
(ii) any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such lawyer;
(iii) any advertisement, regardless of medium, of such lawyer, directed to the general public or any significant portion thereof; or
(iv) any unsolicited correspondence from a lawyer directed to any person or entity; and
(2) "lawyer" means an individual lawyer and any association of lawyers for the practice of law, including a partnership, a professional corporation, limited liability company or any other association.
(b) Purpose of Communications. All communications shall be predominantly informational. As used in this Rule 7.1, "predominantly informational" means that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and that the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.
(c) False or Misleading Communications. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading;
(2) contains a prediction, warranty or guarantee regarding the future success of representation by the lawyer or is likely to create an unjustified expectation about results the lawyer can achieve;
(3) contains an opinion, representation, implication or self-laudatory statement regarding the quality of the lawyer's legal services which is not susceptible of reasonable verification by the public;
(4) contains information based on the lawyer's past success without a disclaimer that past success cannot be an assurance of future success because each case must be decided on its own merits;
(5) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated;
(6) states or implies that the lawyer actually represents clients in a particular area of practice when the lawyer refers a significant number of such clients to other lawyers for representation with respect to all or a significant aspect of the particular practice area;
(7) states or implies that the lawyer is experienced in a particular area of practice unless significant experience in such practice area can be factually substantiated;
(8) states or implies that the lawyer is in a position to improperly influence any court or other public body or office;
(9) states or implies the existence of a relationship between the lawyer and a government agency or instrumentality;
(10) states or implies that a lawyer has a relationship to any other lawyer unless such relationship in fact exists and is close, personal, continuous and regular;
(11) fails to contain the name and address by city or town of the lawyer whose services are described in the communication;
(12) contains a testimonial about or endorsement of the lawyer, unless the lawyer can factually substantiate the claims made in the testimonial or endorsement and unless such communication also contains an express disclaimer substantively similar to the following: "This testimonial or endorsement does not constitute a guaranty, warranty, or prediction regarding the outcome of your legal matter";
(13) contains a testimonial or endorsement about the lawyer for which the lawyer has directly or indirectly given or exchanged anything of value to or with the person making the testimonial or giving the endorsement, unless the communication conspicuously discloses that the lawyer has given or exchanged something of value to or with the person making the testimonial or giving the endorsement;
(14) contains a testimonial or endorsement which is not made by an actual client of the lawyer, unless that fact is conspicuously disclosed in the communication;
(15) contains any impersonation, dramatization, or simulation which is not predominantly informational and without conspicuously disclosing in the communication the fact that it is an impersonation, dramatization, or simulation;
(16) fails to contain disclaimers or disclosures required by this Rule 7.1 or the other Rules of Professional Conduct;
(17) contains any other material statement or claim that cannot be factually substantiated.
(d) Lawyers Responsible for Communication. Every lawyer associated in the practice of law with or employed by the lawyer which causes or makes a communication in violation of this rule may be subject to discipline for the failure of the communication to comply with the requirements of this rule.
Rule 7.2. Advertising
(a) Definition. "Lawyer" is defined in Rule 7.1(a)(2).
(b) Permitted Advertising. Subject to the requirements of Rules 7.1 and 7.3, 7.4 and 7.5, a lawyer may advertise legal services through written, recorded, internet, computer, e-mail or other electronic communication, including public media, such as a telephone directory, legal directory, newspapers or other periodicals, billboards and other signs, radio, television and other electronic media, and recorded messages the public may access by dialing a telephone number, or through other written or recorded communication. This rule shall not apply to any advertisement which is broadcast or disseminated in another jurisdiction in which the advertising lawyer is admitted if such advertisement complies with the rules governing lawyer advertising in that jurisdiction and is reasonably expected by the lawyer not to be received or disseminated in the State of South Dakota.
(c) Record of Advertising. A copy or recording of an advertisement shall be kept by the advertising lawyer for two years after its last dissemination along with a record of when and where it was used.
(d) Prohibited Payments. Except as provided in Rule 1.17 and except as provided in subparagraph (c)(13) of Rule 7.1, a lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule and may pay the usual charges of a not-for-profit legal service organization;
(2) pay the usual charges of a not-for-profit 501(c)(3) or 501(c)(6) qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17.
Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
(e) Prohibited Cost Sharing. No lawyer shall, directly or indirectly, pay all or part of the cost of an advertisement by another lawyer with whom the nonadvertising lawyer is not associated in a partnership, professional corporation or limited liability company for the practice of law, unless the advertisement conspicuously discloses the name and address of the nonadvertising lawyer, and conspicuously discloses whether the advertising lawyer contemplates referring all or any part of the representation of a client obtained through the advertisement to the nonadvertising lawyer.
(f) Permissible Content. The following information in advertisements and written communications shall be presumed not to violate the provisions of this Rule 7.2:
(1) Subject to the requirements of Rule 7.5, the name of the lawyer, a listing of lawyers associated with the lawyer for the practice of law, office addresses and telephone numbers, office and telephone service hours, and a designation such as "lawyer," "attorney," "law firm," "partnership" or "professional corporation," or "limited liability company."
(2) Date of admission to the South Dakota bar and any other bar association and a listing of federal courts and jurisdictions where the lawyer is licensed to practice.
(3) Technical and professional licenses granted by the State of South Dakota or other recognized licensing authorities.
(4) Foreign language ability.
(5) Fields of law in which the lawyer is certified subject to the requirements of Rule 7.4.
(6) Prepaid or group legal service plans in which the lawyer participates.
(7) Acceptance of credit cards.
(8) Information concerning fees and costs, or the availability of such information on request, subject to the requirements of this Rule 7.2 and the other Rules of Professional Conduct.
(9) A listing of the name and geographic location of a lawyer as a sponsor of a public service announcement or charitable, civic or community program or event. Such listings shall not exceed the traditional description of sponsors of or contributors to the charitable, civic or community program or event or public service announcement, and such listing must comply with the provisions of this rule and the other Rules of Professional Conduct.
(10) Schools attended, with dates of graduation, degree and other scholastic distinctions.
(11) Public or quasi-public offices.
(12) Military service.
(13) Legal authorships.
(14) Legal teaching positions.
(15) Memberships, offices and committee assignments in bar associations.
(16) Memberships and offices in legal fraternities and legal societies.
(17) Memberships in scientific, technical and professional associations and societies.
(18) Names and addresses of bank references.
(19) With their written consent, names of clients regularly represented.
(20) Office and telephone answering service hours.
(g) Permissible Fee Information.
(1) Advertisements permitted under this Rule 7.2 may contain information about fees for services as follows:
(i) the fee charged for an initial consultation;
(ii) availability upon request of a written schedule of fees or an estimate of fees to be charged for specific legal services;
(iii) that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery, provided that the advertisement conspicuously discloses whether percentages are computed before or after deduction of costs, and only if it specifically and conspicuously states that the client will bear the expenses incurred in the client's representation, regardless of outcome, except as permitted by Rule 1.8(e);
(iv) the range of fees for services, provided that the advertisement conspicuously discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client, that the quoted fee will be available only to clients whose legal representation is within the services described in the advertisement, and the client is entitled without obligation to an estimate of the fee within the range likely to be charged;
(v) the hourly rate, provided that the advertisement conspicuously discloses that the total fee charge will depend upon the number of hours which must be devoted to the particular matter to be handled for each client, and that the client is entitled without obligation to an estimate of the fee likely to be charged;
(vi) fixed fees for specific legal services, provided that the advertisement conspicuously discloses that the quoted fee will be available only to a client seeking the specific services described.
(2) A lawyer who advertises a specific fee, range of fees or hourly rate for a particular service shall honor the advertised fee or rate for at least ninety (90) days unless the advertisement conspicuously specifies a shorter period; provided, for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for no less than one year following publication.
(h) Electronic Media. Advertisements by electronic media, such as television and radio, may contain the same information as permitted in advertisements by print media, subject to the following requirements:
(1) if a lawyer advertises by electronic media and a person appears in the advertisement purporting to be a lawyer, such person shall in fact be the advertising lawyer or a lawyer employed full-time by the advertising lawyer; and
(2) if a lawyer advertises a particular legal service by electronic media, and a person appears in the advertisement purporting to be or implying that the person is the lawyer who will render the legal service, the person appearing in the advertisement shall be the lawyer who will actually perform the legal service advertised unless the advertisement conspicuously discloses that the person appearing in the advertisement is not the person who will perform the legal service advertised.
(3) Advertisements disseminated by electronic media shall be prerecorded and the prerecorded communication shall be reviewed and approved by the lawyer before it is broadcast.
(i) Law Directories. Nothing in this Rule 7.2 prohibits a lawyer from permitting the inclusion in reputable directories intended primarily for the use of the legal profession or institutional consumers of legal services and contains such information as has traditionally been included in such publications.
(j) Acceptance of Employment. A lawyer shall not accept employment when he knows or should know that the person who seeks his services does so as a result of conduct prohibited under this Rule 7.2.
(k) Lawyers Responsible for Advertising. Every lawyer associated in the practice of law with or employed by the lawyer which causes or makes an advertising in violation of this rule may be subject to discipline for the failure of the advertisement to comply with the requirements of this rule.
(l) Mandatory Disclosure. Every lawyer shall, in any written or media advertisements, disclose the absence of professional liability insurance if the lawyer does not have professional liability insurance having limits of at least $100,000, using the specific language required in Rule 1.4(c)(1) or (2).
Rule 7.3. Direct Contact with Prospective Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, live telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) The prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) The solicitation involves coercion, duress, or harassment.
(c) A copy of every written or recorded communication from a lawyer soliciting professional employment from a prospective client shall be deposited no less that thirty days prior to its dissemination or publication with the Secretary-Treasurer of the South Dakota State Bar by mailing the same to the Office of the State Bar of South Dakota in Pierre, postage prepaid, return receipt requested.
(d) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). Where the communication is written, the label shall appear in a minimum 18-point type or in type as large as the largest type otherwise used in the written communication, whichever is larger. This labeling requirement shall not apply to mailings of announcements of changes in address, firm structure or personnel, nor to mailings of firm brochures to persons selected on a basis other than prospective employment.
(e) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
Rule 7.4. Communication of Fields of Practice and Specialization
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate. A lawyer shall not state or imply that the lawyer is a specialist except as follows:
(a) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "patent attorney" or a substantially similar designation.
(b) A lawyer engaged in admiralty practice may use the designation "admiralty", "proctor in admiralty" or a substantially similar designation.
(c) If a lawyer or firm practices in only certain fields and desires to advertise such limitations in the yellow pages of the telephone directory any such advertising must be accompanied by the following disclaimer appearing in a prominent and conspicuous manner in such advertising or on the same page as the advertising:
(1) Such certification is granted by an organization which has been approved by the appropriate regulatory authority to grant such certification; or
(2) Such certification is granted by an organization that has not yet been approved by, or has been denied the approval available from the appropriate regulatory authority, and the absence or denial of approval is clearly stated in the communication, and in any advertising subject to Rule 7.2, such statement appears in the same sentence that communicates the certification.
(d) Pursuant to subsection (c)(1), the South Dakota Supreme Court hereby designates the American Bar Association as the appropriate regulatory authority to accredit specialty certification programs according to such standards and criteria as the American Bar Association may from time to time establish for accreditation of specialty programs.
(e) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
Rule 7.5. Firm Names and Letterheads
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
(e) The disclosure required in Rule 1.4(c)(1) or (2) shall be in black ink with type no smaller than the type used for showing the individual lawyer's names.
MAINTAINING THE INTEGRITY OF THE PROFESSION
Rule 8.1. Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
Rule 8.2. Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct.
Rule 8.3. Reporting Professional Misconduct
(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
(d) The names, identities, and treatment of persons seeking assistance of the South Dakota Lawyers Concerned for Lawyers, Inc., or an approved lawyers assistance program, relating to alcohol abuse or chemical dependency shall be kept confidential by members of South Dakota Lawyers Concerned for Lawyers, Inc., who are so contacted.
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Rule 8.5. Disciplinary Authority; Choice of Law
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.Source:
SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2017, ch 223 (Supreme Court Rule 16-68), eff. April 1, 2017.