TITLE 16
COURTS AND JUDICIARY
Chapter
01 The Supreme Court
01A Commission On Judicial Qualifications
02 The Unified Judicial System
03 Supreme Court Rules
04 Supreme Court Reports
05 Judicial Circuits And Terms Of Court
06 Circuit Courts
07 Circuit Court Bailiffs, Reporters And Interpreters [Repealed]
08 Supreme And Circuit Court Judges' Retirement Program [Repealed And Transferred]
09 District County Courts [Repealed]
10 County Clerk Of Courts [Repealed And Transferred]
11 Municipal Courts [Repealed]
11A District County Court And Municipal Court Judges' Retirement Program [Repealed]
12 Justices Of The Peace And Police Magistrates [Repealed]
12A Magistrate Courts
12B Magistrate Judges
12C Clerk Magistrates
13 Jury Lists And Panels
14 Judicial Conference
15 Contempt And Offenses Against The Judiciary
16 Admission Of Attorneys To Practice
16A Public Service Pathway Program
17 The State Bar
17A Assistance To Impaired Lawyers And Judges
18 Powers And Duties Of Attorneys
19 Discipline Of Attorneys
20 Expanded Media Coverage Of Trial Court Proceedings
21 Electronic Document Management System--Official Court Record
21A Circuit Court Electronic Filing Rules
22 Public Safety Improvement Programs
23 Attorney Recruitment In Rural Counties And Municipalities
16-1-1
Supreme Court districts.
16-1-2
Number of justices--Term of office--Retention elections.
16-1-2.1
Election of Chief Justice--Term of office--Removal.
16-1-2.2
Form of retention ballot.
16-1-3
Superseded.
16-1-3.1
Additional compensation of Chief Justice--Exclusion from retirement provisions.
16-1-4
Repealed.
16-1-4.1
Mandatory retirement of justices at age seventy--Conclusion of pending matters.
16-1-5
Retired justices and retired or active judges acting in place of disqualified justices.
16-1-6 to 16-1-8. Repealed.
16-1-9
Term of Supreme Court--Places.
16-1-10 to 16-1-13. Repealed.
16-1-14
Supreme Court library--Publications included--Control by justices.
16-1-15 to 16-1-17. Repealed.
16-1A-1
Definition of terms.
16-1A-2
Commission membership--Terms of office.
16-1A-3
Termination of commission membership on departure from qualifying position--Removal of members--Vacancies.
16-1A-4
Budget for commission--Rules--Confidentiality of proceedings--Administrative
support.
16-1A-5
Chairman of commission--Majority required for action.
16-1A-6
Travel expenses and per diem of commission members.
16-1A-7
Employment of personnel by commission--Powers in investigation.
16-1A-8
Employment of personnel by commission--Compensation of witnesses--Counsel.
16-1A-9
Recommendations by commission.
16-1A-10
Status of judge pending criminal, removal or retirement proceedings.
16-1A-11
Participating judge disqualified from sitting in appeal.
16-1A-12
Suspension of judge on conviction of crime--Reversal of conviction--Removal when
conviction final.
16-1A-13
Benefits retained by retired judge--Loss of benefits by removed judge
.
16-1A-14
Obsolete.
16-1A-15
Judicial Qualifications Commission to investigate matters referred by Division of
Criminal Investigation.
APPENDIX A.
CHAPTER 16-2
THE UNIFIED JUDICIAL SYSTEM
16-2-1 16-2-1 to 16-2-19. Repealed by SL 1974, ch 154, § 6.
16-2-20 General supervision of circuit courts by Chief Justice--Purposes.
16-2-20.1 Quarterly reports of undecided circuit court cases--Submission and transmittal--Discipline for noncompliance.
16-2-21 Presiding judges--Appointment--Administrative powers and duties--Court held in each county.
16-2-22 16-2-22. Repealed by SL 1975, ch 162, § 17.
16-2-23 Repealed by SL 2012, ch 112, § 1.
16-2-23.1 Fees retained by court reporter.
16-2-24 16-2-24. Repealed by SL 1975, ch 162, § 17.
16-2-25 Counties to provide facilities for clerk.
16-2-25.1 Supplies of judge or magistrate provided to unified system.
16-2-26 Municipalities and townships to provide facilities for magistrates' clerks.
16-2-27 Continuing duties of clerks of court.
16-2-27.1 Passport application duties of clerks--Fees.
16-2-27.2 16-2-27.2. Repealed by SL 2005, ch 295 (Supreme Court Rule 05-09), eff. Feb. 25, 2005.
16-2-28 Accounting system for funds.
16-2-29 Fees charged by clerk of courts--Governmental bodies exempt.
16-2-29.1 Fees of Supreme Court clerk--No fee in certain cases.
16-2-29.2 Waiver of filing fees and service costs--Motion to court.
16-2-29.3 Waiver of filing fees--Affidavit of inability to pay.
16-2-29.4 Waiver of filing fees--Dismissal of action if allegation of poverty untrue or action frivolous or malicious.
16-2-29.5 Records search fee.
16-2-29.6 Electronic searches of money judgments.
16-2-29.7 16-2-29.7. Repealed by SL 2015, ch 115, § 1.
16-2-30 Clerk to forward fees and costs monthly to county treasurer.
16-2-31 16-2-31 to 16-2-33. Repealed by SL 1982, ch 170, §§ 3 to 5.
16-2-34 Distribution of fines and penalties collected for violation of local ordinances.
16-2-35 16-2-35, 16-2-35.1. Repealed by SL 1989, ch 182, § 1.
16-2-35.2 16-2-35.2 to 16-2-35.6. Repealed by SL 1989, ch 182, §§ 4 to 8.
16-2-35.7 16-2-35.7. Repealed by SL 1990, ch 152, § 5.
16-2-36 16-2-36. Repealed by SL 1989, ch 182, § 9.
16-2-37 16-2-37. Repealed by SL 1975, ch 162, § 17.
16-2-38 Unified Judicial System court automation fund created.
16-2-39 Court automation surcharge--Amount in civil action--Collection.
16-2-39.1 Court automation surcharge for small claims actions after June 30, 2015.
16-2-40 Surcharge taxable as costs.
16-2-41 Court automation surcharge for certain criminal actions.
16-2-41.1 Court automation surcharge for actions filed in Supreme Court.
16-2-42 Waiver of surcharge--Conditions.
16-2-43 Collection and transmittal to state treasurer--Deposit in funds.
16-2-44 Use of court automation fund money.
16-2-45 Fee for filing divorce action--Distribution of fee.
16-2-46 Uniform forms for protection orders.
16-2-47 Refusal to file or docket document.
16-2-47.1 Written notice by clerk of counterfeit documents.
16-2-48 Court action for refusal to file or docket document.
16-2-49 Liability for refusal to file or docket document.
16-2-50 Definitions.
16-2-51 Court appointed special advocates grant program established.
16-2-52 Court appointed special advocates fund established--Use of fund.
16-2-53 Court Appointed Special Advocates Commission established--Membership--Terms--Reimbursement.
16-2-54 Award of grants--Procedures for obtaining grant.
16-2-55 Commission on Equal Access to Our Courts created.
16-2-56 Grants to entities that deliver services to persons meeting income guidelines.
16-2-56.1 Considerations for awarding grants from equal access to our courts fund.
16-2-57 Settlement of class action lawsuit.
16-2-58 Commission on equal access to our courts surcharge for petition to modify order for child support, child custody, child visitation, or spousal support.
16-2-58.1 Commission on equal access to our courts surcharge for answer or responsive pleading to petition to modify order for child support, child custody, child visitation, or spousal support.
16-2-58.2 Commission on equal access to our courts surcharge for answer or responsive pleading in proceedings not subject to § 16-2-58.1.
16-2-59 Collection of surcharge--Equal access to our courts fund.
16-2-60 Residential alternative care program grant--Maximum amount.
16-2-61 Alternative care program grants.
16-2-62 Report of grant recipient.
16-2-63 Electronic access to case documents pilot program.
16-2-64 Document charges for electronic access to documents pilot program.
16-2-65 Commission on Access to the Courts--Creation--Members--Terms--Appointment--Compensation--Staff.
16-2-66 Commission on Access to the Courts--Purpose--Action.
16-2-A SOUTH DAKOTA CODE OF JUDICIAL CONDUCT
16-2-B CODE OF CONDUCT FOR INTERPRETERS IN THE SOUTH DAKOTA JUDICIARY
APPENDIX A. APPENDIX A TO CHAPTER 16-2
SOUTH DAKOTA CODE OF JUDICIAL CONDUCT
PREAMBLE
Our legal system is based on the principle that an independent, impartial,* fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It consists of broad statements called Canons, specific rules set forth in Sections under each Canon, a Terminology Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Terminology and Application Sections, is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses "shall" or "shall not," it is intended to impose binding obligations the violation of which can result in disciplinary action. When "should" or "should not" is used, the text is intended as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.
The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is not to be construed so as to impinge on the essential independence of judges in making judicial decisions or on judges' or candidates' * First Amendment rights of freedom of speech and association but should be construed to protect the due process rights of litigants to impartial courts and to promote public confidence in the judiciary.
The Code is designed to provide guidance to judges and candidates * for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. See ABA Standards Relating to Judicial Discipline and Disability Retirement.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006.
TERMINOLOGY
Terms explained below are noted with an asterisk (*) in the Sections where they appear. In addition, the Sections where terms appear are referred to after the explanation of each term below.
"Appropriate authority" denotes the authority with responsibility for initiation of disciplinary process with respect to the violation to be reported. See Sections 3D(1) and 3D(2).
"Candidate." A candidate is a person seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support. The term Acandidate@ has the same meaning when applied to a judge seeking election or appointment to non-judicial office. See Preamble and Sections 3E(1)(e), 3E(3), 5A, 5B, 5C and 5E.
"Continuing part-time judge." A continuing part-time judge is a judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired judge subject to recall who is permitted to practice law. (This term includes part-time law and lay magistrates, as well as retired judges. This code applies to retired judges unless the retired judge files a statement of nonconsent to be recalled for judicial service with the Clerk of the South Dakota Supreme Court.) See Application Section C.
"Court personnel" does not include the lawyers in a proceeding before a judge. See Sections 3B(7)(c) and 3B(9).
"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality. See Sections 3E(1)(c) and 3E(1)(d).
"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:
(i) Ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
(ii) Service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;
(iii) A deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;
(iv) Ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.
See Sections 3E(1)(c) and 3E(2).
"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian. See Sections 3E(1), 3E(2) and 4E.
"Impartiality" denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. See Preamble and Sections 1A, 2A, 3B(10), 3E, 4A, 5A(3).
"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. See Sections 3D, 3E(1), and 5A(3).
"Law" denotes court rules as well as statutes, constitutional provisions, and decisional law. See Sections 2A, 3A, 3B(2), 4B, 4C, 4D(5), 4F, 4I, 5A(2), 5B(2), 5C(1), 5C(3) and 5D.
"Member of the candidate's family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the candidate maintains a close familial relationship. See Section 5A(3)(a).
"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Sections 4D(5), 4E and 4G.
"Member of the judge's family residing in the judge's household" denotes any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household. See Sections 3E(1) and 4D(5).
"Nonpublic information" denotes information that, by law, is not available to the public. Nonpublic information may include but is not limited to: information that is sealed by statute or court order, impounded or communicated in camera; and information offered in grand jury proceedings, presentencing reports, dependency cases or psychiatric reports. See Section 3B(12).
"Periodic part-time judge." A periodic part-time judge is a judge who serves or expects to serve repeatedly on a part-time basis but under a separate appointment for each limited period of service or for each matter. This term includes child support referees. See Application Section D.
"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office. See Sections 5A(1), 5B(2) and 5C(1).
"Pro tempore part-time judge." A pro tempore part-time judge is a judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard. This term applies to referees and masters appointed under Rule 53, except child support referees. See Application Section E.
"Public election." This term includes primary and general elections; it includes partisan elections, nonpartisan elections and retention elections. See Section 5C.
"Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control. See Sections 3B(3), 3B(4), 3B(6), 3B(9) and 3C(2).
" Third degree of relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d).
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. July 1, 2013.
CANON 1 A Judge Shall Uphold the Integrity, Impartiality and Independence of the Judiciary
A. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity, impartiality * and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
COMMENTARY
Deference to the judgments and rulings of courts depends upon public confidence in the integrity, impartiality and independence of judges. The integrity, impartiality and independence of judges depends in turn upon their acting without fear or favor. A judiciary of integrity is one in which judges are known for their probity, fairness, honesty, uprightness, and soundness of character. An independent judiciary is one free of inappropriate outside influences. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006.
CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities
A. A judge shall respect and comply with the law * and shall act at all times in a manner that promotes public confidence in the integrity and impartiality * of the judiciary.
COMMENTARY
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly, without impinging on the judge's or candidate's First Amendment rights of freedom of speech and association. Examples are the restrictions on judicial speech imposed by Sections 3(B)(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
See also Commentary under Section 2C.
B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
COMMENTARY
Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.
A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family. In contracts for publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of the judge's office. As to the acceptance of awards, see Section 4D(5)(a) and Commentary.
Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request.
Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. See also Canon 5 regarding use of a judge's name in political activities.
A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.
C. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin.
COMMENTARY
Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Section 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership. See New York State Club Ass'n. Inc. v. City of New York, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940 (1987), 95 L. Ed. 2d 474; Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).
Organizations dedicated to the preservation of religious, fraternal, sororal, spiritual, charitable, civic, or cultural values, which do not stigmatize any excluded persons as inferior and therefore unworthy of membership, are not considered to discriminate invidiously.
Although Section 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge's membership in an organization that engages in any discriminatory membership practices prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the appearance of impropriety. In addition, it would be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion or national origin in its membership or other policies, or for the judge to regularly use such a club. Moreover, public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.
When a person who is a judge on the date this Code becomes effective learns that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Section 2C or under Canon 2 and Section 2A, the judge is permitted, in lieu of resigning, to make immediate efforts to have the organization discontinue its invidiously discriminatory practices, but is required to suspend participation in any other activities of the organization. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within a year of the judge's first learning of the practices), the judge is required to resign immediately from the organization.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006.
CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law.* In the performance of these duties, the following standards apply.
B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
(2) A judge shall be faithful to the law * and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.
(3) A judge shall require * order and decorum in proceedings before the judge.
(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require * similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.
B(4) COMMENTARY
The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.
(6) A judge shall require * lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability or age, against parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability or age, or other similar factors, are issues in the proceeding.
B(5) and (6) COMMENTARY
A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment or sexual misconduct and must require the same standard of conduct of others subject to the judge's direction and control. Sexual harassment or sexual misconduct by a judge while engaging in judicial or administrative responsibilities or any law-related functions undermines the confidence in the legal profession and the legal system and, as a result, is prejudicial to the administration of justice. Sexual harassment or sexual misconduct includes unwelcome sexual advances, requests for sexual favors, and other objectively offensive verbal or physical conduct or communications sexual in nature.
A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to Law.* A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law * applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel * whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law * to do so or when serving on problem-solving courts, treatment courts or drug courts.
B(7) COMMENTARY
The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.
To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.
Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party's lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given.
An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.
Canon 3(B)(7)(e) recognizes a judge may initiate, permit, or consider ex parte communications in certain circumstances; such as when serving on problem-solving courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers and others as part of the problem-solving court team.
A judge must not independently investigate facts in a case and must consider only the evidence presented.
A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.
A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge's staff.
If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly and shall report promptly and accurately all undecided matters in compliance with the reporting requirements of the Supreme Court.
B(8) COMMENTARY
In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.
Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require * similar abstention on the part of court personnel * subject to the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity. In connection with a judicial election or recall campaign, this canon does not prohibit a judge from making a public comment about a pending or past proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.
(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial * performance of the adjudicative duties of the office.
B(9)(10) COMMENTARY
Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. Sections 3B(9) and (10) do not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by South Dakota Rule of Professional Conduct 3.6.
(11) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.
COMMENTARY
Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.
(12) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information * acquired in a judicial capacity.
(13) With the exception of the rules for expanded media coverage of appellate court proceedings and the rules for media coverage of trial court proceedings, a judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recess between sessions, except that a judge may authorize:
(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;
(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:
(i) the means of recording will not distract participants or impair the dignity of the proceedings;
(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.
C. Administrative Responsibilities.
(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
(2) A judge shall require * staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
COMMENTARY
Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4).
D. Disciplinary Responsibilities.
(1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge * that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority.*
(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Code of Professional Responsibility should take appropriate action. A judge having knowledge * that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.*
(3) Sections 3D(1) and 3D(2) shall not apply to information obtained by a judge as a member of a committee, organization or related group established or approved by the South Dakota Judges Association, the State Bar or the Supreme Court to assist lawyers, judges or law students with a medical condition as defined in §16-19-29(1), including the name of any individual in contact with the member and sources of information or information obtained therefrom.
(4) A judicial member of an entity described in Section 3D(3) shall not be required to treat as confidential, communications that cause him or her to believe a person intends or contemplates causing harm to himself, herself or a reasonably identifiable person and that disclosure of the communications to the potential victim or individuals or entities reasonably believed to be able to assist in preventing the harm is necessary.
(5) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2), 3D(3) and 3D(4) are part of a judge's judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.
COMMENTARY
Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body.
Information about a lawyer's or judge's misconduct or fitness may be received by a judge in the course of that judge’s participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of Sections 3D(1) and 3D(2) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public.
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality * might reasonably be questioned, including but not limited to instances where:
E(1) COMMENTARY
Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.
By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge * of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.
E(1)(b) COMMENTARY
A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.
(c) the judge knows * that he or she, individually or as a fiduciary,* or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household,* has an economic interest * in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis * interest that could be substantially affected by the outcome of the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship * to either of them or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known * by the judge to have a more than de minimis * interest that could be substantially affected by the proceeding, but the judge shall disclose such de minimis * interest to the parties;
(iv) is to the judge's knowledge * likely to be a material witness in the proceeding.
E(1)(d) COMMENTARY
The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned" under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's disqualification.
(e) the judge, while a judge or a candidate * for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to:
(i) an issue in the proceeding; or
(ii) the controversy in the proceeding.
E(1)(e) COMMENTARY
Candidates for judicial office often receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations, seeking to learn their views on disputed or controversial legal or political issues. Expressing such views may require a judge's recusal or disqualification. Candidates are generally not prohibited from responding to this kind of inquiry, but candidates should proceed with caution if they choose to respond. Depending on the wording of the questions and the format provided for answering, a candidate's responses might constitute pledges, promises or commitments to perform the adjudicative duties of office other than in an impartial way. In order to avoid violating Canon 3, therefore, candidates who choose to respond should make clear their commitment to keeping an open mind while on the bench, regardless of their own personal views. If elected, such candidate shall be recused from cases where a candidate's responses constitute pledges, promises or commitments to perform the adjudicative duties of office other than in an impartial way.
(2) A judge shall keep informed about the judge's personal and fiduciary * economic interests,* and make a reasonable effort to keep informed about the personal economic interests * of the judge's spouse and minor children residing in the judge's household.
(3) A judge or candidate * who answers a written questionnaire seeking the judge's or candidate's * views on disputed or controversial legal or political issues shall file a copy of any response with the Clerk of the Supreme Court within ten days of the submission of the response to the questionnaire.
F. Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.
COMMENTARY
A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2002, ch 247 (Supreme Court Rule 01-09), eff. July 17, 2001; SL 2005, ch 286 (Supreme Court Rule 02-05), eff. July 1, 2002; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006; SL 2011, ch 232 (Supreme Court Rule 10-08), eff. July 1, 2011; SL 2011, ch 248 (Supreme Court Rule 11-05), eff. July 1, 2011; SL 2021, ch 251 (Supreme Court Rule 20-05), eff. Aug. 26, 2020; SL 2021, ch 252 (Supreme Court Rule 20-06), eff. Aug. 26, 2020; SL 2022, ch 257 (Supreme Court Rules 22-04), eff. Feb. 1, 2022.
CANON 4 A Judge Shall So Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations
A. Extra-judicial Activities in General. A judge, subject to the proper performance of his judicial duties may engage in the following quasi-judicial activities, if in doing so he does not cast doubt on his capacity to decide impartially * any issue that may come before him. He may speak write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice. A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially * as a judge;
(2) demean the judicial office, or
(3) interfere with the proper performance of judicial duties.
COMMENTARY
Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.
Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability or age. See Section 2C and accompanying Commentary.
B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law,* the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.
COMMENTARY
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.
In this and other Sections of Canon 4, the phrase "subject to the requirements of this Code" is used, notably in connection with a judge's governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.
C. Governmental, Civic or Charitable Activities.
(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law,* the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.
COMMENTARY
See Section 2B regarding the obligation to avoid improper influence.
(2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law,* the legal system, or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.
COMMENTARY
Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Section 4C(3).
The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.
Section 4C(2) does not govern a judge's service in a nongovernmental position. See Section 4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Section 4C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Section 4C(3).
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law,* the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.
COMMENTARY
Section 4C(3) does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice, see Section 4C(2).
See Commentary to Section 4B regarding use of the phrase "subject to the following limitations and the other requirements of this Code." As an example of the meaning of the phrase, a judge permitted by Section 4C(3) to serve on the board of a fraternal institution may be prohibited from such service by Sections 2C or 4A if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity to act impartially as a judge.
Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited by Section 4G from serving as a legal advisor to a civic or charitable organization.
(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(i) will be engaged in proceedings that would ordinarily come before the judge, or
(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
COMMENTARY
The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.
For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.
(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or participate in other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
(ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law,* the legal system or the administration of justice;
(iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;
(iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.
COMMENTARY
A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund- raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge's signature.
Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise.
A judge must not be a speaker or guest of honor at an organization's fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code.
D. Financial Activities.
(1) A judge shall not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge's judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
COMMENTARY
The Time for Compliance provision of this Code (Application, Section F) postpones the time for compliance with certain provisions of this Section in some cases.
When a judge acquires in a judicial capacity information, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See Section 2B; see also Section 3B(11).
A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position.
This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of judges with law firms appearing before the judge, see Commentary to Section 3E(1) relating to disqualification.
Participation by a judge in financial and business dealings is subject to the general prohibitions in Section 4A against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Section 2B against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's activities, as set forth in Canon 1. See Commentary for Section 4B regarding use of the phrase "subject to the requirements of this Code."
(2) RESERVED.
(3) Subject to the requirement of subsection (1), a judge may hold and manage investments, including real estate and engage in other remunerative activity including the operation of a business.
(4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household * not to accept a gift, bequest, favor or loan from anyone except for:
COMMENTARY
Section 4D(5) does not apply to contributions to a judge's campaign for judicial office, a matter governed by Canon 5.
Because a gift, bequest, favor or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household.
(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law,* the legal system or the administration of justice;
COMMENTARY
Acceptance of an invitation to a law-related function is governed by Section 4D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by Section 4D(5)(h).
A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See Sections 4A(1) and 2B.
(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;
(c) ordinary social hospitality;
(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;
COMMENTARY
A gift to a judge, or to a member of the judge's family living in the judge's household, that is excessive in value raises questions about the judge's impartiality and the integrity of the judicial office and might require disqualification of the judge where disqualification would not otherwise be required. See, however, Section 4D(5)(e).
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Section 3E;
(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants or
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 4H.
COMMENTARY
Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge.
E. Fiduciary Activities.
(1) Unless specifically approved by the Supreme Court, a judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary,* except for the estate, trust or person of a member of the judge's family,* and then only if such service will not interfere with the proper performance of judicial duties.
(2) A judge shall not serve as a fiduciary * if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary * capacity.
COMMENTARY
The Time for Compliance provision of this Code (Application, Section F) postpones the time for compliance with certain provisions of this Section in some cases.
The restrictions imposed by this Canon may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings the retention of which would place the judge in violation of Section 4D(4).
F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.*
COMMENTARY
Section 4F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties.
G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.*
COMMENTARY
This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See Section 2(B).
The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter.
H. Compensation, Reimbursement and Reporting.
(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in his judge's performance of judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:
(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.
(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of such an amount is compensation.
(2) Public Reports. A judge shall report the date, place and nature of any activity for which the judge received compensation, and the name of the payor and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge. The judge's report shall be made at least annually and shall be filed as a public document in the office of the Clerk of the South Dakota Supreme Court.
COMMENTARY
See Section 4D(5) regarding reporting of gifts, bequests and loans.
The Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not appear to trade on the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge's ability or willingness to be impartial.
I. Disclosure of a judge's income, debts, investments or other assets. Disclosure of a judge's income, debts, investments or other assets is required only to the extent provided in this Canon and in Sections 3E and 3F, or as otherwise required by law.*
COMMENTARY
Section 3E requires a judge to disqualify himself or herself in any proceeding in which the judge has an economic interest. See "economic interest" as explained in the Terminology Section. Section 4D requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of his judicial duties; Section 4H requires a judge to report all compensation the judge received for activities outside judicial office. A judge has the rights of any other citizen, including the right to privacy of the judge's financial affairs, except to the extent that limitations established by law are required to safeguard the proper performance of the judge's duties.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006.
CANON 5 A Judge or Judicial Candidate Shall Refrain from Inappropriate Political Activity
A. All Judges and Candidates
(1) Except as authorized in Sections 5B(2), 5C(1), 5C(2) and 5C(3), a judge or a candidate * for election or appointment to judicial office shall not:
(a) hold an office in a political organization;*
(b) publicly endorse or publicly oppose another candidate for public office;
(c) make speeches on behalf of a political organization;*
(d) solicit funds for a political organization * or candidate;* or
(e) personally solicit or accept campaign contributions other than through a campaign committee authorized by Section 5C(2).
COMMENTARY
Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.
Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not Aan office in a political organization.
Section 5A(1)(b) does not prohibit a judge or judicial candidate from privately expressing his or her views on judicial candidates or other candidates for public office.
A candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket.
(2) A judge shall resign from judicial office upon becoming a candidate * for a nonjudicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate * for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law * to do so.
COMMENTARY
This section applies regardless of whether the office sought is partisan or nonpartisan.
(3) A candidate * for a judicial office:
(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity, impartiality,* and independence of the judiciary, and shall encourage members of the candidate's family * to adhere to the same standards of political conduct in support of the candidate * as apply to candidate;*
COMMENTARY
Although a judicial candidate must encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family
members are free to participate in other political activity.
(b) shall prohibit employees and officials who serve at the pleasure of the candidate,* and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate * is prohibited from doing under the Sections of this Canon;
(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly * permit any other person to do for the candidate what the candidate * is prohibited from doing under the Sections of this Canon;
(d) shall not:
(i) with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial * performance of the adjudicative duties of the office; or
(ii) knowingly * misrepresent the identity, qualifications, present position or other fact concerning the candidate * or an opponent;
COMMENTARY
Section 5A(3)(d) prohibits a candidate for judicial office from making pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the
office regarding cases, controversies or issues that are likely to come before the court. A candidate should emphasize in any public statement the candidate=s duty to uphold the law regardless of his or her personal views. See also Sections 3B(9) and (10), the general rules on public comment by
judges. Section 5A(3)(d) does not prohibit a candidate from making pledges or promises respecting court administration. Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. This Section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. See also South Dakota Rule of Professional Conduct 8.2. The promises and commitments clause must be narrowly construed and cautiously applied to campaign speech.
(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).
B. Candidates Seeking Appointment to Judicial or Other Governmental Office.
(1) A candidate * for appointment to judicial office or a judge seeking other governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy.
(2) A candidate * for appointment to judicial office or a judge seeking other governmental office shall not engage in any political activity to secure the appointment except that:
(a) such persons may, unless otherwise prohibited by law:*
(i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;
(ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and
(iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to his or her qualifications for the office.
(b) a nonjudge candidate * for appointment to judicial office may, in addition, unless otherwise prohibited by law:*
(i) retain an office in a political organization,*
(ii) attend political gatherings, and
(iii) continue to pay ordinary assessments and ordinary contributions to a political organization * or candidate and purchase tickets for political party dinners or other functions.
COMMENTARY
Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or appointment
to another judicial office or other governmental office may apply for the appointment and seek appropriate support.
Although under Section 5B(2) nonjudge candidates seeking appointment to judicial office are permitted during candidacy to retain office in a political organization, attend political gatherings and pay ordinary dues and assessments, they remain subject to other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.
C. Judges and Candidates Subject to Public Election.
(1) A judge or a candidate * subject to public election * may, except as provided by law:*
(a) at any time
(i) purchase tickets for and attend political gatherings:
(ii) identify himself or herself as a member of a political party;
(iii) contribute to a political organization * or candidate and,
(iv) speak to gatherings on his or her own behalf;
(b) when a candidate for election
(i) appear in newspaper, television and other media advertisements supporting his or her candidacy:
(ii) distribute pamphlets and other promotional campaign literature supporting his or her candidacy;
(iii) publicly endorse or publicly oppose other candidates for the same judicial office in a public election in which the judge or judicial candidate is running;
(iv) establish a campaign committee pursuant to the provisions of Section 5C(2); and
(v) seek, accept, or use endorsements from any person or organization.
COMMENTARY
Section 5C(1) permits judges subject to election to be involved in certain political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. The conduct of a judicial campaign and the manner of presentation of any material in connection with a campaign for judicial office should comport with the dignity and integrity required of that office.
(2) A judicial candidate subject to public election
(a) may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.
(b) A judicial candidate subject to public election shall direct his or her campaign committee:
(i) to solicit and accept only such campaign contributions as are reasonable, in any event not to exceed one-thousand dollars ($1,000) in the election year per individual or organization;
(ii) not to solicit contributions for the candidates campaign earlier than January 1 of the election year and no later than December 31 of the election year;
(iii) that in addition to complying with all applicable statutory requirements for disclosure of campaign contributions, candidates * or candidates' campaign committees shall comply with all applicable statutory campaign reporting requirements;
(iv) not to use or permit the use of campaign contributions for the private benefit of the candidate * or others; and
(v) not to disclose to the candidate the identity of campaign contributors nor to disclose to the candidate the identity of those who were solicited for contribution and refused such solicitation. The candidate may be advised of aggregate contribution information in a manner that does not reveal the source(s) of the contributions.
(c) A judicial candidate subject to public election may personally solicit campaign contributions from members of the judge's family, from a person with whom the judge has an intimate relationship, or from judges over whom the judge does not exercise supervisory or appellate authority.
COMMENTARY
Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions except to the extent allowed by Section 5C(2)(c). See Section 5A(1)(e). Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees. For instance, under current law candidates should advise their campaign committee to follow the reporting requirements contained in SDCL § 12-27-22 and SDCL 12-27-24 thru 28. Such reports must be filed with the Secretary of State on the dates specified. The candidates* or candidates= campaign committees shall also comply with SDCL § 12-27-15. At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, but not to exceed one-thousand dollars in the election year per individual or organization. The candidate must also instruct the campaign committee to comply with all applicable requirements of Section 5C(2).
Candidates= campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. Contributions for a campaign for judicial office should not be knowingly solicited or accepted from a party, or one employed by, affiliated with or a member of the immediate family of a party, to litigation that (a) is before the candidate, (b) may reasonably be expected to come before the candidate if elected, or (c) has come before the candidate so recently that the knowing solicitation or acceptance of funds may give the appearance of improper use of the power or prestige of judicial office. Similarly, contributions may not be knowingly solicited or accepted from any firm, corporation or other organization that has as one of its purposes the promotion of one side of a legal issue which may reasonably be expected to come before the candidate if elected. Contributions may be solicited and accepted from lawyers (including lawyers having cases before, or which may come before, the candidate), provided that the solicitation makes no reference, direct or indirect, to any particular pending or potential litigation.
(3) Except as prohibited by law,* a candidate * for judicial office in a public election may permit the candidate's * name:
(a) to be listed on election materials along with the names of other candidates * for elective public office, and
(b) to appear in promotions of his or her candidacy.
COMMENTARY
Section 5C(3) provides a limited exception to the restrictions imposed by Section 5A(1).
D. Incumbent Judges. A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law,* the legal system or the administration of justice, or (iii) as expressly authorized by law.
COMMENTARY
Neither Section 5D nor any other Section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.
E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates.* A successful candidate,* whether or not an incumbent, is subject to judicial discipline for his or her campaign conduct; an unsuccessful candidate * who is a lawyer is subject to lawyer discipline for his or her campaign conduct. A lawyer who is a candidate * for judicial office is subject to Rule 8.2(b) of the South Dakota Model Rules of Professional Conduct.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. July 1, 2013; SL 2013, ch 269 (Supreme Court Rule 13-08), eff. July 1, 2013.
APPLICATION OF THE CODE OF JUDICIAL CONDUCT
A. Application of code. Anyone, whether or not a lawyer, who is an officer of a judicial system magistrate, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.
COMMENTARY
The three categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. For the purposes of this Section, as long as a retired judge is subject to recall the judge is considered to "perform judicial functions." The determination of which category and, accordingly, which specific Code provisions apply to an individual judicial officer, depend upon the facts of the particular judicial service.
B. RESERVED.
C. Continuing Part-time Judge. A continuing part-time judge *:
(1) is not required to comply
(a) except while serving as a judge, with Section 3B(9); and
(b) at any time with Sections 4C(2), 4E(1), 4F, 4G, 4H, 5A(1), 5B(2) and 5D.
(2) shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
COMMENTARY
When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the express consent of all parties pursuant to Rule 1.12(a) of the ABA Model Rules of Professional Conduct.
D. Periodic Part-time Judge. A periodic part-time judge *:
(1) is not required to comply
(a) except while serving as a judge, with Sections 2A and 3B(9);
(b) at any time, with Sections 4C(1), 4C(2), 4C(3)(a) and (b), 4D(1)(b), 4D(4), 4D(5), 4E 4F, 4G, 4H, 5A(1), 5A(2), 5B(2) and 5D.
(2) shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
COMMENTARY
When a person who has been a periodic part-time judge is no longer a periodic part-time judge (no longer accepts appointments), that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the express consent of all parties pursuant to Rule 1.12(a) of the ABA Model Rules of Professional Conduct.
E. Pro Tempore Part-time Judge. A pro tempore part-time judge *:
(1) is not required to comply
(a) except while serving as a judge, with Sections 2A, 2B and 3B(9);
(b) at any time with Sections 2C, 4C(1), 4C(2), 4C(3)(a), 4C(3)(b), 4D(1)(b), 4D(4), 4D(5), 4E, 4F, 4G, 4H, 5A(1), 5A(2), 5B(2) and 5D
(2) A person who has been a pro tempore part-time judge * shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by Rule 1.12(a) of the ABA Model Rules of Professional Conduct.
F. Time for Compliance. A person to whom this Code becomes applicable shall comply immediately with all provisions of this Code except Sections 4D(2) and 4E and shall comply with these Sections as soon as reasonably possible and shall do so in any event within the period of one year.
COMMENTARY
If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continue to serve as fiduciary but only for that period of time necessary to avoid serious adverse consequences to the beneficiary of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Section 4D(3), continue in that activity for a reasonable period but in no event longer than one year.
Source: SL 1993, ch 398 (Supreme Court Rule 93-15), eff. July 1, 1993; SL 2006, ch 274 (Supreme Court Rule 05-13), eff. Jan. 1, 2006.
CHAPTER 16-3
SUPREME COURT RULES
16-3-1 Law governing making of rules.
16-3-2 Power of Supreme Court to make rules of practice and procedure--Actions, proceedings, and appeals to which applicable.
16-3-3 Substantive rights not to be affected by rules.
16-3-4 16-3-4. Repealed by SL 1973, ch 129, § 4.
16-3-5 Rules governing petitions for and notice of court rules.
16-3-5.1 Repealed.
16-3-5.2 Notice request for Supreme Court rule proposal--Court discretion to decline to consider proposal.
16-3-5.3 Rule proposal requirements.
16-3-5.4 Review of rule proposal for form, style, and clarity.
16-3-5.5 Proponent response to suggestions--Proponent fails to timely respond to suggestions--No suggestions.
16-3-5.6 Notice and hearing of final rule proposals.
16-3-5.7 Court to receive copies of initial proposal, chief's suggestions, and final proposals prior to hearing.
16-3-5.8 Rules governing internal operation effective on filing.
16-3-5.9 Court may issue notice of hearing on proposed rules changes without issuing notice requesting rules proposal.
16-3-6 16-3-6. Repealed by SL 1973, ch 129, § 4.
16-3-6.1 Amendment of existing rule--Publication.
16-3-7 Filing of rules with secretary of state--Distribution and publication.
16-3-8 16-3-8. Repealed by SL 1973, ch 129, § 4.
16-3-9 Supreme Court rules governing attorneys.
16-3-10 Facsimile transmissions to Supreme Court justices.
16-3-11 Grounds for declaration of judicial emergency.
16-3-12 Supreme Court declaration of judicial emergency by order--Contents.
16-3-13 Designation of another facility for court business.
16-3-14 Suspension, extension, or other relief from deadlines, time schedules, or filing requirements.
16-3-15 Notice of order declaring judicial emergency.
16-4-1
Contract for publication of opinions--Payment.
16-4-2 to 16-4-15. Repealed.
16-5-1
Repealed.
16-5-1.1
Repealed.
16-5-1.2
Number of judicial circuits--Counties included.
16-5-2 to 16-5-9. Repealed.
16-5-10
Repealed.
16-5-11
Superseded.
16-5-12
First day of term falling on holiday.
16-5-13
Simultaneous terms of circuit court in different counties.
16-5-14
Simultaneous sessions of circuit court in same or different counties.
16-5-15
Special terms of courts of record--Order filed with clerk--Powers at special term.
16-5-16
Special emergency term of court when immediate trial demanded by extraordinary
circumstances--Summons of jury.
16-5-17
Special and adjourned terms of circuit court.
16-5-18
Special term of circuit court on request of county commissioners--Order filed with
clerk.
16-5-19
Repealed.
16-5-20
Repealed.
16-5-21
Repealed.
16-5-22
Place of holding terms of circuit court.
16-5-23
Regular terms of circuit court held if cases ready for trial--Juries called.
16-5-24
Postponement of opening of term of circuit court--Adjournment by clerk in absence
of judge.
16-5-25
Adjournment of circuit court term--Resumption of business on day fixed.
16-5-26
Adjournment of circuit court to day certain or until notice--Jury panel retained.
16-5-27
Regular term in session until terminated or next term.
16-5-28
Termination of circuit court term--Dismissal of jury--Special term and new jury.
CHAPTER 16-6
CIRCUIT COURTS
16-6-1 Number of judges in judicial circuits.
16-6-2 16-6-2. Repealed by SL 1972, ch 120, § 2.
16-6-2.1 16-6-2.1. Repealed by SL 1974, ch 154, § 5.
16-6-3 Time of election of judges--Terms of office.
16-6-3.1 16-6-3.1. Superseded.
16-6-4 16-6-4. Repealed by SL 1973, ch 130, § 13.
16-6-5.1 Additional compensation of presiding circuit judge--Not subject to certain retirement provisions.
16-6-6 Reimbursement of expenses of circuit judges--Waiver of right to claim travel expenses.
16-6-7 Courtroom facilities for circuit judges provided by counties.
16-6-8 Chancery and common-law jurisdiction of circuit court.
16-6-9 Original civil jurisdiction of circuit court.
16-6-9.1 16-6-9.1. Repealed by SL 2015, ch 117, § 1.
16-6-9.2 Facsimile transmissions--Applicable statutory requirements.
16-6-10 Appellate jurisdiction of circuit court.
16-6-11 16-6-11. Repealed by SL 1972, ch 8, § 36.
16-6-12 Original criminal jurisdiction of circuit court.
16-6-13 16-6-13. Repealed by SL 1973, ch 130, § 13.
16-6-14 Circuit court jurisdiction as to persons detained.
16-6-15 Circuit court writs in exercise of powers.
16-6-16 Court always open for business--Place of hearings and determinations.
16-6-17 Issues of fact tried in proper county--Order at chambers any place within state.
16-6-18 16-6-18. Repealed by SL 1973, ch 130, § 13.
16-6-19 16-6-19. Transferred to § 16-2-21.
16-6-20 16-6-20. Transferred to § 16-2-20.
16-6-21 16-6-21 to 16-6-28. Repealed by SL 1973, ch 130, § 13.
16-6-29 Circuit judge as judge in any circuit--Effect of acts in other circuits--Separation from office.
16-6-30 16-6-30. Repealed by SL 1973, ch 130, § 13.
16-6-31 Mandatory retirement of judges at age seventy--Conclusion of pending matters.
16-6-32 Service by retired justices and judges--Effect of acts.
16-8-1 to 16-8-5. Repealed.
16-8-5.1
Transferred.
16-8-6 to 16-8-11. Repealed.
16-8-12
Repealed.
16-8-13, 16-8-14. Repealed.
16-10-1, 16-10-2. Repealed.
16-10-2.1, 16-10-2.2. Transferred.
16-10-3, 16-10-4. Repealed.
16-10-5
Transferred.
16-10-6, 16-10-7. Transferred.
16-10-8
Transferred.
16-10-9, 16-10-10. Transferred.
16-10-11 to 16-10-13. Repealed.
16-12A-1
Repealed.
16-12A-1.1
"Magistrate" defined--License to practice law required.
16-12A-2, 16-12A-2.1. Repealed.
16-12A-2.2
Magistrate court established within each circuit.
16-12A-2.3
Court with magistrate judge as court of record.
16-12A-3
Repealed.
16-12A-3.1
Repealed.
16-12A-3.2
Repealed.
16-12A-3.3
Number of magistrates appointed.
16-12A-4
Repealed.
16-12A-4.1
Repealed.
16-12A-4.2
Appointment and tenure of magistrates--Terms of office.
16-12A-5 to 16-12A-7. Repealed.
16-12A-7.1
Repealed.
16-12A-7.2
Repealed.
16-12A-8 to 16-12A-10.1. Repealed.
16-12A-10.2
Compensation of magistrates--Budgeting and appropriations.
16-12A-11 to 16-12A-27. Repealed.
16-12A-27.1
Right of appeal to circuit court.
16-12A-28 to 16-12A-29. Repealed.
16-12A-29.1
Counties to provide facilities for court.
16-12A-30
Repealed.
16-12A-30.1
Municipality to provide facilities for court.
16-12A-31
Filing fees.
CHAPTER 16-12B
MAGISTRATE JUDGES
16-12B-1 Temporary transfer of magistrate judge--Powers and duties.
16-12B-1.1 Number of magistrate judges.
16-12B-1.2 Certification and information on nominees for magistrate judge--Approval by Supreme Court.
16-12B-1.3 Term of magistrate judges--Removal.
16-12B-2 Service as magistrate by retired justice or judge--Effect of acts--Expenses.
16-12B-3 Authority to solemnize marriages--Fees.
16-12B-4 Authority to administer oaths, etc..
16-12B-5 Jurisdiction to issue summonses, warrants.
16-12B-6 Right to counsel in magistrate court.
16-12B-7 Jurisdiction--Bonds and personal recognizance.
16-12B-8 Jurisdiction--Acceptance of defaults and trial of certain petty offenses--Acceptance of pleas--Sentencing.
16-12B-9 Jurisdiction--Forfeiture of appearance bonds.
16-12B-10 Jurisdiction--Committal.
16-12B-11 Jurisdiction--Trial of minor criminal cases.
16-12B-12 Jurisdiction--Small claim proceedings.
16-12B-13 Jurisdiction--Limitations.
16-12B-14 Jurisdiction--Mental illness cases.
16-12B-14.1 Jurisdiction--Adult probationary drug court program.
16-12B-15 Record of proceedings in magistrate court--Stenographic record--Costs--Appeal.
16-12B-16 Right of appeal to circuit court.
16-12B-17 Practice of law by magistrates.
16-12B-18 Court practice prohibited to full-time magistrates.
16-12C-1
Appointment of clerk, deputy clerk as clerk magistrate--Valid in any circuit.
16-12C-2
Educational qualifications of clerk magistrate.
16-12C-2.1
Certification of clerk magistrate-Notice of termination.
16-12C-3
Attendance at institute prerequisite to taking office--Exception.
16-12C-4
Establishment and schedule of clerk magistrate's institutes--Court may require
attendance.
16-12C-5
Authority to solemnize marriages--Fees.
16-12C-6
Authority to administer oaths, etc.
16-12C-7
Jurisdiction to issue summonses, warrants.
16-12C-8
Right to counsel in magistrate court.
16-12C-9
Jurisdiction--Committal--Conditions.
16-12C-10
Jurisdiction--Bonds and personal recognizance.
16-12C-11
Jurisdiction--Petty offenses--Acceptance of pleas--Sentencing--Overweight vehicle
penalties.
16-12C-12
Jurisdiction--Forfeiture of appearance bonds.
16-12C-13
Jurisdiction--Noncontested proceedings with limited damage amount.
16-12C-14
Record of proceedings before clerk magistrate--Stenographic record--Costs--Appeal.
16-12C-15
Right of appeal to circuit court.
CHAPTER 16-13
JURY LISTS AND PANELS
16-13-1 Master jury list for each county--Courts by which used--Summons to supply deficiency--Annual compilation of list.
16-13-2 Minimum number of names placed on master jury list.
16-13-2.1 16-13-2.1. Repealed by SL 2014, ch 105, § 1.
16-13-3 16-13-3. Repealed by SL 1992, ch 153, § 2.
16-13-3.1 16-13-3.1. Repealed by SL 1972, ch 125, § 23.
16-13-4 16-13-4. Repealed by SL 1992, ch 153, § 3.
16-13-4.1 Jury selection list to consist of voter registration list supplemented by driver license and identification card lists.
16-13-5 16-13-5. Repealed by SL 2003, ch 118, § 2.
16-13-5.1 16-13-5.1 to 16-13-8. Repealed by SL 1972, ch 125, § 23.
16-13-9 16-13-9. Repealed by SL 2003, ch 118, § 3.
16-13-9.1 Master jury list defined.
16-13-9.2 Random selection of names placed on master jury list--Number of names--Electronic process authorized.
16-13-9.3 16-13-9.3. Repealed by SL 1982, ch 172, § 7.
16-13-9.4 16-13-9.4, 16-13-9.5. Repealed by SL 2003, ch 118, §§ 6, 7.
16-13-9.6 16-13-9.6. Repealed by SL 1992, ch 153, § 10.
16-13-10 Qualifications of jurors.
16-13-10.1 Policy of state regarding jury selection and service.
16-13-10.2 Discrimination prohibited.
16-13-10.3 Certain elderly persons may be excused upon request.
16-13-10.4 Breastfeeding mothers and new parents exempt from jury duty.
16-13-11 16-13-11. Repealed by SL 1976, ch 150, § 2.
16-13-12 16-13-12. Repealed by SL 1972, ch 125, § 23.
16-13-13 Signing and filing of master juror list--Preparation of separate tickets by clerk of court--Electronic process authorized.
16-13-14 16-13-14. Repealed by SL 1972, ch 125, § 23.
16-13-15 Review of qualifications of jurors on master jury list--Removal of disqualified persons from list--Record of reasons for disqualification.
16-13-16 16-13-16 to 16-13-18. Repealed by SL 1982, ch 172, § 11.
16-13-18.1 Random selection process defined.
16-13-18.2 Enforcement of chapter by Supreme Court.
16-13-18.3 Responsibility of circuit presiding judge--Variation of process to meet local conditions--Approval and filing of variations.
16-13-18.4 Creation of jury district for county with population of less than five thousand.
16-13-19 Additional selections if master list inadequate.
16-13-20 Summons of grand jury.
16-13-21 Circuit court order required for summons of grand jury.
16-13-22 Circuit court order for selection of petit jury--Specifications of order.
16-13-23 Time for selection of jury panels.
16-13-24 16-13-24, 16-13-25. Repealed by SL 2015, ch 118, §§ 4, 5.
16-13-26 16-13-26. Repealed by SL 1982, ch 172, § 18.
16-13-27 Electronic selection system used to fill jury panels.
16-13-28 Disregard and replacement of jurors who have served.
16-13-29 First names drawn as grand jury.
16-13-31 Panel not invalidated by irregularity--Dismissal of panel after misfeasance or malfeasance.
16-13-31.1 Preservation of jury selection records--Public inspection.
16-13-32 Neglect of officer's duty or malfeasance as contempt of court.
16-13-33 Improper listing of names drawn as misdemeanor.
16-13-34 Notice to jurors drawn for circuit court panel--Return of acceptance of service.
16-13-35 Service by sheriff on circuit court juror failing to return acceptance of service--Fees deducted from juror's compensation.
16-13-36 16-13-36. Repealed by SL 1984, ch 151, § 2.
16-13-37 Judges to prescribe manner in which jury panels utilized and how summoned.
16-13-37.1 Magistrate court utilization of jury panels.
16-13-38 16-13-38. Repealed by SL 1982, ch 172, § 26.
16-13-39 Magistrate court powers and procedure in summoning jury and witnesses.
16-13-40 16-13-40. Repealed by SL 1982, ch 172, § 27.
16-13-41 Duty of jurors to appear when summoned.
16-13-41.1 Discharge or suspension from employment for jury service as misdemeanor.
16-13-41.2 Retention of employment status during jury status--Pay.
16-13-42 Summons of additional jurors to supply deficiencies in panel--Procedure where jury list exhausted.
16-13-43 Summons of additional jurors when panel exhausted by challenges.
16-13-44 Application for jury duty prohibited--Report to circuit court--Violation as misdemeanor.
16-13-45 Failure to appear for jury duty or return jury questionnaire as contempt of court--Penalty.
16-13-46 Jurors' per diem and mileage--Appearance fee--Certification and payment.
16-13-47 Jurors' expenses and fees in cases on violation of municipal laws.
16-13-47.1 Weekly payment of jurors.
16-13-48 16-13-48. Repealed by SL 1974, ch 153, § 60, and by SL 1974, ch 157, § 3.
16-13-49 Permitting improper communication with jury as misdemeanor.
CHAPTER 16-14
JUDICIAL CONFERENCE
16-14-1 Conference established--Composition.
16-14-2 Study of state judicial system by conference.
16-14-3 Study of rules of practice by conference--Recommendations for changes.
16-14-4 Annual and special meetings of conference--Training on evidence-based practices.
16-14-5 Agenda for conference meetings--Reports by judges.
16-14-6 16-14-6. Repealed by SL 1972, ch 120, § 2.
16-14-7 Sexual harassment prevention training for judges.
16-15-1
Action or arrest in improper name as misdemeanor.
16-15-2
Disorderly behavior in presence of court as misdemeanor.
16-15-3
Disorderly behavior in presence of referee as misdemeanor.
16-15-4
Disturbance of court proceedings as misdemeanor.
16-15-5
Refusal to testify as misdemeanor.
16-15-6
Disobedience of judicial process as misdemeanor.
16-15-7
Resistance to judicial process as misdemeanor.
16-15-8
False report of judicial proceedings as misdemeanor--Fair report not punishable.
16-15-9 to 16-15-14. Repealed.
16-15-15
Acceptance of gift from party to action as misdemeanor--Inheritance excepted.
CHAPTER 16-16
ADMISSION OF ATTORNEYS TO PRACTICE
16-16-1 License from Supreme Court required to practice law--Active membership in state bar--Violation as misdemeanor.
16-16-1.1 Essential eligibility requirements for admission.
16-16-2 Qualifications of applicants to practice law.
16-16-2.1 Standard of good moral character.
16-16-2.2 Good moral character--Quantum and burden of proof.
16-16-2.3 Good moral character--Relevant conduct.
16-16-2.4 Use of information.
16-16-2.5 Adverse recommendation.
16-16-2.6 Criminal background investigation required--Procedure--Results furnished to board.
16-16-3 Composition and appointment of board of bar examiners--Terms of office.
16-16-4 Compensation and expenses of bar examiners and secretary.
16-16-5 Duty of bar examiners--Rules and regulations.
16-16-6 Examination required of applicants to practice law--Educational requirements.
16-16-6.1 16-16-6.1. Repealed by SL 1987, ch 406 (Supreme Court Rule 86-32).
16-16-7 16-16-7. Repealed by SL 1983, ch 400 (Supreme Court Rule 82-27).
16-16-7.1 Practice of nonresident attorneys employed by legal aid bureaus or public defender agencies--Application.
16-16-7.2 Certificates and affidavits filed with application.
16-16-7.3 Order of admission--Duration.
16-16-7.4 Submission to disciplinary board jurisdiction--Revocation of admission or referral to board for misconduct--Venue.
16-16-7.5 Extent of practice--Compensation.
16-16-7.6 Admission of full-time faculty member of the University of South Dakota law school.
16-16-7.7 Order of admission and duration.
16-16-7.8 Submission to disciplinary board jurisdiction--Revocation of admission or referral to board for misconduct--Venue.
16-16-8 Application for admission on examination.
16-16-9 Time and place of examination.
16-16-10 Subjects covered by examination--Public notice.
16-16-11 Re-examination after three failures prohibited.
16-16-12 16-16-12. Repealed by Supreme Court Rule 82-28.
16-16-12.1 Admission without examination--Eligibility by practice.
16-16-12.2 Admission without examination--Application requirements.
16-16-12.3 Attorney licensing when spouse is a member of the armed forces.
16-16-12.4 Contents of application for licensing when spouse is a member of the armed forces.
16-16-13 Fees payable with application for admission--Disposition of fees.
16-16-14 Discrimination on account of sex prohibited.
16-16-15 Board of Bar Examiners--Applications for admission--Investigations--Hearings--Confidentiality--Disciplinary Board.
16-16-16 Review by Supreme Court of bar examiners' decision as to qualifications of applicant.
16-16-16.1 Review by Supreme Court of Bar Examiners' decision on ADA request.
16-16-17 Recommendation to Supreme Court for admission to practice--Order and certificate of admission--State Bar membership fee.
16-16-17.1 Conditional admission.
16-16-17.2 Limited purpose of conditional admission.
16-16-17.3 Limited circumstances under which conditional admission may be considered.
16-16-17.4 Report of recommendation to Supreme Court.
16-16-17.5 Review of conditional admission.
16-16-18 Oath of attorney--Form and administration.
16-16-19 Rights and privileges conferred by license to practice law.
16-16-20 Roll of attorneys maintained by clerk of Supreme Court.
16-16-21 Reinstatement of inactive attorneys--Persons eligible.
16-16-22 Application for reinstatement--Fees and charges--Determination of eligibility.
16-16-23 Examination required of applicant for reinstatement--Examination dispensed with if applicant manifestly qualified.
16-16-24 Notice to State Bar of reinstatement of attorney--Payment of membership fees.
16-16-A REGULATIONS OF THE BOARD OF BAR EXAMINERS
APPENDIX A. APPENDIX TO CHAPTER 16-16
REGULATIONS OF THE BOARD OF BAR EXAMINERS
STATE OF SOUTH DAKOTA
1. Application for Admission to Practice Law.
1.1. Application for Admission Without Examination.
2. Application Forms and Payment of Fees.
3. Bar Examination Subjects.
4. Passing Score.
5. Acceptance of Multistate Bar Examination Results from Other States.
6. Transfer of Multistate Bar Examination Results to other States.
7. Places and Dates of Examinations.
7.1. Law Student Registration.
8. Appeal.
8.1. Procedure.
1. Application for Admission to Practice Law
Each applicant for admission to practice law shall file with the secretary of the Board of Bar Examiners an application in the form prescribed by the Board of Bar Examiners. Such application shall be electronically submitted or postmarked on or before November 1 for the February examination and on or before May 1 for the July examination and shall be accompanied by the fee prescribed in the applicable rules of court and a recent (within six months of the date of application) photograph of the applicant, and DCI and FBI fingerprint cards.
Each applicant for admission shall also submit a request for preparation of a character report and application with the National Conference of Bar Examiners. Such request and application shall be electronically submitted or postmarked on or before November 1 for the February examination and on or before May 1 for the July examination and shall be accompanied by the fee prescribed by the National Conference of Bar Examiners.
1.1. Application for Admission Without Examination
Each applicant for admission to practice law without examination shall file with the Secretary of the Board of Bar Examiners an application in the form prescribed by the Board of Bar Examiners. Such application shall be accompanied by the applicable fees, a recent (within six months of the date of application) photograph of the applicant, and DCI and FBI fingerprint cards.
Each applicant for admission without examination shall also file a request for preparation of a character report and application with the National Conference of Bar Examiners. Such request and application shall be accompanied by the fee prescribed by the National Conference of Bar Examiners.
2. Application Forms and Payment of Fees
All fees shall be paid by money order or certified check. Payment by credit card or e-check will be allowed when the technology is developed. The applicant will be responsible for any service fee. The application form shall require each applicant to waive confidentiality and privacy rights in order to allow the Board of Bar Examiners to inquire into the applicant's moral character through examination of state, federal, police, court and security records.
3. Bar Examination Subjects.
All applicants, except those applying pursuant to § 16-16-7.6, 16-16-12.1, or 16-16-12.3 are required to take the bar examination which consists of the Multistate Essay Examination (MEE), an essay question on Indian Law, the Multistate Performance Test (MPT), the Multistate Bar Examination (MBE), and the Multistate Professional Responsibility Examination (MPRE). Subject matter outlines for the MEE, MPT, MBE, and MPRE are available at the National Conference of Bar Examiners' website at http://www.ncbex.org/.
The MEE is a two and one half hour examination consisting of five essay questions. The MEE will test both general and South Dakota principles of law.
Indian Law includes basic principles of federal Indian law, including but not limited to civil and criminal jurisdiction, the Indian Civil Rights Act, the Indian Child Welfare Act, and the Indian Gaming Regulatory Act. It does not include tribal laws or customary laws. Indian Law is tested by one essay question after the MEE.
The MPT consists of two ninety-minute questions which test the fundamental skills of problem solving, legal analysis and reasoning, factual analysis, communication, organization and management of a legal task, and recognizing and resolving ethical dilemmas. Each question shall contain all of the resource material necessary to complete the performance examination. The MPT will test both general and South Dakota principles of law.
The MBE is an objective six-hour examination containing 200 multiple-choice test questions covering the subjects:
Constitutional Law |
Contracts |
Criminal Law and Procedure |
Evidence |
Real Property |
Torts |
Civil Procedure (effective February 2015 bar exam) |
|
The MPRE consists of 50 multiple-choice test questions and measures an applicant's knowledge of the ethical standards of the legal profession.
4. Passing Score
The bar examination is comprised of three portions:
(A) The combined MPT, MEE, and Indian law portion,
(B) The MBE, and
(C) The MPRE.
An applicant must pass each portion of the examination. A general average of 75% or higher on the combined MPT, MEE, and Indian law portion of the examination shall be deemed a passing score on that portion of the examination. A scaled score of 133 or higher shall be deemed a passing score on the MBE portion of the examination. An applicant may receive additional points on their MBE score, not to exceed three additional points, based on their score on the combined MPT, MEE, and Indian law portion of the examination as follows: 80 to 84 percent, one point; 85 to 89 percent, two points; and 90 percent or more, three points. These additional points may not be transferred to an examination administration other than the one in which they are obtained. A scaled score of 85 shall be deemed a passing score on the MPRE portion of the examination. The Board of Bar Examiners shall determine the passing score on each portion of the bar examination in advance of the examination. Written notice of any deviation from the scores enumerated in this regulation will be given to the dean of the University of South Dakota School of Law and all applicants for admission to practice law by examination.
An applicant who has failed only one portion of the exam may elect to retake both portions of the examination or only that portion which the applicant failed; however, a passing score on one portion of the examination shall only be valid for a period of two years to exempt the applicant from retaking that portion of the examination. An applicant who elects to retake both portions of the examination must obtain a passing score on both portions of the examination in that administration of the bar examination in order to pass. An applicant who fails either: A) the MPT, MEE, and Indian law portion of the examination: and/or B) the MBE portion of the examination three times must receive Supreme Court permission pursuant to § 16-16-11 to take another examination.
4.1 Examination Results
The Board of Bar Examiners' decision as to whether an applicant has passed or failed the examination is final and not subject to review.
4.2 Post-Examination Review
For purposes of preparing for reexamination, an applicant who fails the MPT/MEE/ILQ may review the questions and the applicant’s answers following the examination. The review must be scheduled within 30 days after May 15 for the February bar examination and November 15 for the July examination. Review will take place in the presence of the Secretary of the Board of Bar Examiners or the Secretary’s designee at the Board’s office in Pierre, South Dakota. Review of materials is subject to the NCBE’s policy on release of MPT and MEE materials. Successful applicants may not review their MPT/MEE/ILQ answers.
5. Acceptance of Multistate Bar Examination Results from Other States
In its discretion, the Board of Bar Examiners may accept an applicant's previous scores on the MBE administered in a jurisdiction other than South Dakota if the scaled score is 135 or higher and the score is obtained not more than twenty-four months from the date the applicant takes the South Dakota Bar Examination. The Board of Bar Examiners may accept an applicant's MPRE score if the scaled score is 85 or higher and is obtained not more than twenty-eight months from the date the applicant takes the South Dakota Bar Examination.
6. Transfer of Multistate Bar Examination Results to other States
An applicant seeking to transfer an MBE score to another jurisdiction shall apply to the National Conference of Bar Examiners for transfer and pay its fee for transfer.
7. Places and Dates of Examinations
Unless different times and places are fixed by the Board of Bar Examiners, the examinations will be administered at the following times and places:
The MPT, MEE, Indian Law Question and MBE are given on the last Tuesday and Wednesday of February and the last Tuesday and Wednesday of July in Pierre, South Dakota. The MPT, MEE and Indian Law Question are given Tuesday; the MBE is given on Wednesday.
The MPRE is given in March, August, and November.
Notice of the times and places shall be given to each applicant at the time of granting permission to take such examinations.
7.1. Law Student Registration
Applicants to law school and first-or second-year law students who intend to take the South Dakota Bar Examination following graduation may register with the Board of Bar Examiners through the Bar Portal. The registration must be accompanied by the $100 South Dakota registration, fee as well as the fee required by the National Conference of Bar Examiners' law student registrant program for an initial character report. Registration under the rule is not deemed an application for permission to take the bar examination.
The Board of Bar Examiners shall review the registration and character report to identify character and fitness issues that may hinder or preclude later admission.
The Board will report its findings to the registrant. The Board's findings are both preliminary and non-binding in nature. Additionally, the findings will not constitute permission to take the bar examination or a waiver of the consideration of facts or conduct that are either later discovered or occur after the Board's review under this rule.
8. Appeal
The secretary of the Board of Bar Examiners shall make an initial determination regarding whether any act taken by an applicant pursuant to these rules satisfies the requirement of the rules. In addition, whenever the rules provide for a waiver of any deadline or other exercise of discretion by the Board including acceptance of results from other states the secretary of the Board of Bar Examiners shall make an initial determination which shall, within twenty days, become a final decision of the Board unless appealed as provided herein. Nothing in this rule shall prohibit the Board from sua sponte altering or reversing any initial decision of the secretary of the Board of Bar Examiners or from directing the secretary of the Board of Bar Examiners to transfer any case, issue or question directly to the Board without entering an initial decision without notice to the applicant; however, such action shall constitute final action by the Board for the purpose of review by the Supreme Court pursuant to § 16-16-16. In addition, the secretary of the Board of Bar Examiners or an applicant may submit an application or other issue directly to the Board of Bar Examiners for determination whenever an application, or acknowledgement by an applicant, discloses a facial violation of bar entry requirements. The procedures provided in Rule 8.1 will apply except that the secretary of the Board of Bar Examiners shall make a recommendation to the Board of Bar Examiners regarding the issue submitted directly to the Board. Results of examinations administered by the Board are not determined by the secretary and constitute final action by the Board.
8.1. Procedure
Whenever an applicant is aggrieved by an initial decision of the secretary of the Board of Bar Examiners the applicant shall request that the secretary reduce the determination to writing if necessary and may, within twenty days of the date of mailing of secretary's initial decision, appeal to the Board of Bar Examiners. Any applicant seeking review of the secretary's initial decision shall transmit to the board a copy of the initial decision sought to be reviewed together with such argument, authorities and evidence in the form of sworn affidavits as the applicant deems necessary. The submission may not exceed sixty pages in length and shall consist of an original and nine copies of the submission. Upon receipt of a request for review the secretary shall respond setting forth the reasons for taking the action under review. A copy of the secretary's response shall be served upon the applicant and board.
The Board of Bar Examiners in its sole discretion may seek additional evidence or explanation, including testimony under oath, from the applicant or the secretary. In addition, the board may request oral argument from the applicant. When the Board of Bar Examiners has satisfied itself that it is fully informed in the premises, it may adopt, modify and adopt as modified, or reverse the secretary's initial decision. In the event the board reverses the secretary's initial decision it shall render a final decision which shall be communicated to the applicant in writing. The foregoing shall constitute final action by the Board of Bar Examiners for the purposes of review by the Supreme Court pursuant to § 16-16-16.
NOTE: Applications for admission to practice law may be obtained from the Secretary, State Board of Bar Examiners, State Capitol, 500 East Capitol Avenue, Pierre, South Dakota 57501.
Source: SL 2004, ch 326 (Supreme Court Rule 03-25), eff. Jan. 1, 2004; SL 2007, ch 303 (Supreme Court Rule 06-71), eff. Jan. 1, 2007; SL 2014, ch 269 (Supreme 10), eff. July 1, 2014; SL 2015, ch 274 (Supreme Court Rule 15-12), eff. July 1, 2015; SL 2019, ch 221 (Supreme Court Rule 18-15), eff. May 23, 2018; SL 2019, ch 232 (Supreme Court Rule 19-11), eff. Feb. 25, 2019; SL 2023, ch 218 (Supreme Court Rule 23-01), eff. Jan. 10, 2023; Supreme Court Rules 24-05, 24-06, 24-07, and 24-08, eff. Sept. 4, 2024.
CHAPTER 16-16A
PUBLIC SERVICE PATHWAY PROGRAM
16-16A-1 Definitions.
16-16A-2 Eligibility--Deadline--Form--Notice--Selection--Participant maximum.
16-16A-3 Participant work experience--Supervision--Law school training.
16-16A-4 Participant admission to practice--Eligibility.
16-16A-5 Participant admission to practice--Application.
16-16A-6 Completion of program, investigation--Board recommendation--Court order.
16-16A-7 Public service practice requirement--Period--Effect of clerkship.
16-16A-8 Public service practice requirement--Waiver or extension--Board investigation and hearing--Recommendation to Court.
16-16A-9 Public service practice requirement--Report--Affidavit upon completion.
16-16A-10 Oversight committee--Membership.
16-16A-11 Participant compliance--Disciplinary Board referral--Information disclosure required.
16-16A-12 Chapter effective for five years--Oversight committee recommendation.
16-16A-13 Policies and regulations authorized.
16-16A-14 Confidentiality of information--Permitted uses--Consent to release.
16-16A-A Regulations of the Board of Bar Examiners--Public Service Pathway Program.
16-16A-A. Regulations of the Board of Bar Examiners--Public Service Pathway Program.
Regulation 1.
Each participant must prepare and submit a portfolio of work product. By May 31 of the year of placement, the board shall publish the requirements of the portfolio.
Regulation 2.
After each court appearance, each participant shall complete a form provided by the board detailing the case name and number, the subject matter of the litigation, the purpose of the appearance, and the feedback received from the supervising attorney, and, if any, the feedback received from the court or adjudicator. If the court appearance is for a block of cases, the participant shall so indicate on the form and, in lieu of providing details on each case, the participant shall report only the most significant case. The participant shall provide this form to the secretary of the board each week, or as otherwise ordered by the board, and provide a copy to the supervising attorney. The supervising attorney shall review the form and complete a section pertaining to the accuracy of the form and submit the form via email to the secretary of the board.
Regulation 3.
Each participant shall complete the daily time and activity form provided by the board, which must detail the title of the legal matter, the date, the scope of the activity, the time spent in 15-minute increments, and what was observed. Additionally, in a separate word document attached to the form, the participant shall also provide a short synopsis of what the participant learned if the activity involved observation or, if the activity required participation, what the participant did correctly and what the participant could have done differently and why. The participant shall submit the daily time and activity form and attachment to the secretary every week or as otherwise ordered by the board.
Regulation 4.
A participant shall inform the secretary of the board of any hearings or trials which would provide an opportunity for observation of the participant actively engaging before the court or adjudicator. It is preferable that notice of three days or more be given of such events.
Regulation 5.
The board will regularly assess each participant. The board shall apprise each participant of the participant’s progress by November 15 of the year of placement. The board’s assessment pursuant to this regulation is preliminary and non-binding. The assessment does not constitute a waiver of the consideration of facts or conduct that are either later discovered or occur after the board’s assessment under this regulation.
Source: Supreme Court Rule 25-05, eff. Feb. 21, 2025.
CHAPTER 16-17
THE STATE BAR
16-17-1 Bar continued as public association.
16-17-2 Purposes of State Bar.
16-17-3 Membership of State Bar.
16-17-4 Annual membership fee--Bylaws and rules governing fee and use of fund.
16-17-4.1 Senior emeritus status.
16-17-5 Board of commissioners.
16-17-6 Meetings of State Bar.
16-17-7 Bylaws and rules adopted by bar--Approval by Supreme Court.
16-17-8 Amendment of bylaws and rules--Approval by Supreme Court.
16-17-9 Rules of professional conduct formulated by bar--Professional fees not regulated.
16-17-10 Bylaws, rules, and regulations binding on members of bar--Violation as ground for discipline.
16-17-11 Membership lists furnished to clerks of court by State Bar.
16-17-12 16-17-12, 16-17-13. Repealed by Supreme Court Rule 78-1, Rule XX(b).
16-17-14 Liability of State Bar--Indemnification--Immunity.
16-17-15 Liability of State Bar--Immunity in good faith acts--Exceptions.
16-17-A THE STATE BAR OF SOUTH DAKOTA BY-LAWS
16-17-A. APPENDIX TO CHAPTER 16-17
THE STATE BAR OF SOUTH DAKOTA BY-LAWS
ARTICLE I - ORGANIZATION.
1.1. Organization.
ARTICLE II - OPERATIONS.
2.1. Purpose.
2.2. Mutual Benefit.
2.3. Office.
2.4. Electronic Communication.
2.5. Dissolution.
ARTICLE III - RULES OF PROFESSIONAL CONDUCT.
3.1. Rules of Professional Conduct.
ARTICLE IV - MEMBERS.
4.1. Membership.
4.2. Membership Notification.
4.3. Reinstatement.
4.4. Meetings.
4.5. Membership Fees.
ARTICLE V - STATE BAR ELECTED OFFICERS.
5.1. Officers.
5.2. Installation, Election, and Term.
5.3. Duties.
5.4. Vacancy.
ARTICLE VI - EXECUTIVE DIRECTOR.
6.1. Executive Director.
6.2. At Will.
6.3. Duties.
6.4. Bond.
6.5. Termination.
ARTICLE VII - BAR COMMISSION.
7.1. Governing Powers.
7.2. Composition.
7.3. Commissioner Qualifications.
7.4. Commissioner Nomination.
7.5. Commissioner Election.
7.6. Commissioner Election Cycle.
7.7. Commissioner Term.
7.8. Regular Meetings.
7.9. Special Meetings.
7.10. Notice.
7.11. Waiver of Notice.
7.12. Quorum.
7.13. Proxy.
7.14. Voting.
7.15. Action in Lieu of Meeting.
7.16. Expenses.
7.17. Compensation.
7.18. Commissioner Termination.
7.19. Commissioner Vacancies.
7.20. Commissioner Attendance.
7.21. Commissioner Resignation.
ARTICLE VIII - STATE BAR COMMITTEES.
8.1. Establishment.
8.2. Membership.
8.3. Term.
8.4. Reporting.
8.5. Disciplinary Action.
8.6. Standing Committees.
ARTICLE IX - STATE BAR SECTIONS.
9.1. Establishment.
9.2. Membership.
9.3. Operations.
9.4. Reporting.
ARTICLE X - FISCAL OPERATIONS.
10.1. Fiscal Year.
10.2. Document Signing.
10.3. Loans.
10.4. Checks, Drafts, and Accounts.
10.5. Budget.
10.6. Property.
ARTICLE XI - CONFLICTS OF INTEREST.
11.1. Basis.
11.2. Statement.
11.3. Application.
11.4. Full Disclosure.
11.5. Proscribed Activity.
ARTICLE XII - INDEMNIFICATION.
12.1. Coverage.
12.2. Payment.
12.3. Evaluation.
12.4. Consideration.
12.5. Insurance.
ARTICLE XIII - PARLIMENTARY AUTHORITY.
13.1. Rules of Order.
ARTICLE XIV - AMENDMENT.
14.1. Amendment.
ARTICLE I - ORGANIZATION
1.1. Organization. The State Bar of South Dakota is an unincorporated public association authorized by and constituted under South Dakota law.
ARTICLE II - OPERATIONS
2.1. Purpose. The State Bar may engage in all activities permitted by the South Dakota Supreme Court ("Supreme Court"), South Dakota Law, and the Internal Revenue Code.
2.2. Mutual Benefit. The State Bar, for the mutual benefit of its Members:
a. must at all times be operated in compliance with IRC § 501(c)(6);
b. may not pay interest or a dividend on any capital furnished by its Members; and
c. may form, or be an owner or member of, one or more entities it deems necessary or appropriate to accomplish the State Bar mission provided any such entity's activities do not conflict with South Dakota Law or Supreme Court rule.
2.3. Office. The State Bar must maintain an office in South Dakota and may have other offices within or outside South Dakota as determined by the Bar Commission.
2.4. Electronic Communication. The State Bar may use electronic communications and electronic signatures to give notice and conduct Bar Commission and other State Bar business. Records of all matters governed by these Bylaws may be maintained electronically except to the extent prohibited by law. Electronic communications must include sufficient information for the person receiving the message to reasonably conclude that the communication was sent by the purported sender.
2.5. Dissolution. Upon the State Bar's formal dissolution, the Bar Commission will distribute all State Bar assets for one or more exempt purposes within the meaning of the Internal Revenue Code or will distribute the assets:
a. to the federal government;
b. to a state or local government; or,
c. for an appropriate purpose, as determined by the Bar Commission.
ARTICLE III - RULES OF PROFESSIONAL CONDUCT
3.1. Rules of Professional Conduct. The State Bar may formulate rules of professional conduct for all Members from time to time, subject to the approval of the Supreme Court.
ARTICLE IV - MEMBERS
4.1. Membership. A Member is any person who qualifies for Active or Inactive membership as stated below, pays the requisite Membership Fee unless exempt, and complies with these Bylaws, State Bar rules, and Supreme Court rules. State Bar membership is mandatory for every person actively practicing law in South Dakota. State Bar membership is permissive for all other qualified persons.
a. Active. Any person authorized to practice law in South Dakota and in good standing with the State Bar is an "Active Member." Active Members have the right to vote in all State Bar matters requiring Member action and as otherwise specified in these Bylaws. Others deemed Active Members are:
i. Law School Faculty. Fulltime University of South Dakota School of Law faculty members;
ii. Judiciary. Supreme Court Justices, South Dakota Circuit Court Judges ("Circuit Court Judges"), and fulltime South Dakota Magistrate Judges ("Magistrate Judges"); and,
iii. Emeritus. An Active Member retiring from active law practice or a retiring judiciary member may take "Emeritus Status" by filing an emeritus registration form with the State Bar and complying with South Dakota statutory restrictions.
b. Inactive. Any person otherwise qualified to be an Active Member, but who does not actively practice law in South Dakota may become an "Inactive Member" by paying the Membership Fee for an Inactive Member.
4.2. Membership Notification. The State Bar will furnish a list of Active Members by April 15th each year to the:
a. Clerk of Courts for each South Dakota county;
b. Supreme Court Clerk; and,
c. Clerk of the United States District Court for the District of South Dakota.
The State Bar will furnish these clerks with updates to the Active Member list from time to time.
4.3. Reinstatement. Any person meeting the qualifications of Paragraph 4.1.a. may seek reinstatement as an Active Member as follows:
a. Inactive for Five Calendar Years or Less. Pay the Active Membership Fees by December 31st of the fifth calendar year of the Member being an Inactive Member.
b. Inactive for more than Five Calendar Years. Submit a written request for reinstatement to the Executive Director and include:
i. proof that the Member was admitted to practice law in the highest court of any state, United States territory, or the District of Columbia for at least one of the five years immediately preceding the written request;
ii. proof that the Member was actively practicing law in that jurisdiction or engaged:
1) as a judge for a court of record;
2) as a commission or tribunal member authorized to address legal matters of a serious nature; or,
3) as a fulltime instructor at an accredited law school in that jurisdiction;
iii. payment of the Active Member Membership Fees; and,
iv. payment of Delinquent Fees, if any, and Delinquency Penalty thereon.
c. Reinstatement Decision. The State Bar will reinstate the Inactive Member as an Active Member upon determination that the Inactive Member satisfactorily meets the reinstatement requirements. If the State Bar rejects the reinstatement request, the Member may appeal the State Bar's decision to the Supreme Court, within thirty days after receiving notice of rejection from the State Bar. The Supreme Court may overturn the State Bar's decision. If the Supreme Court declines to hear the appeal or hears the appeal and upholds the State Bar's decision, the State Bar will return the Membership Fees, Delinquent Fees, if any, and Delinquency Penalty tendered with the application.
4.4. Meetings.
a. Annual Meeting. The State Bar will hold an annual Member meeting ("Annual Meeting") at the time and place determined by the Bar Commission.
b. Notice. The State Bar will give notice of the Annual Meeting to all Active and Inactive Members at least 30 days before the meeting date.
c. Resolutions. Resolutions for Member consideration at the Annual Meeting must be submitted by an Active Member to the State Bar in writing at least 45 days before the business portion of the Annual Meeting ("Business Meeting"). The State Bar will publish properly submitted resolutions in the Annual Meeting Program, post them conspicuously at the Annual Meeting, and make copies available for Members in attendance. The State Bar will not accept any resolution or motion, complimentary to any Officer or Member, for any service performed, paper read, or address delivered.
d. Special Meetings. Any five Bar Commissioners may call a special Member meeting by signing a written Call for Special Meeting and filing it with the Executive Director. The Call must state the Special Meeting's purpose. Upon receipt of the Call, the Executive Director must fix a date for the Special Meeting no more than 40 days after receipt of the Call and give notice of the Special Meeting to all Active and Inactive Members at least 30 days before the meeting date.
e. Waiver of Notice. A Member's attendance at any meeting will constitute a waiver of notice by the Member, unless the Member announces at the meeting's beginning that the Member is attending solely to object to the meeting on the grounds of improper notice.
f. Quorum. Twenty-Five Active Members at any Regular or Special Meeting will constitute a quorum. If a quorum is not present, those in attendance may adjourn the meeting until a quorum is present.
g. Proxy. Members may not vote by proxy.
h. Voting. Each Active Member has one vote for each matter upon which the Member is eligible and entitled to vote. A matter is approved when a majority of Members present vote in favor of the matter. In the event of a tie vote, lots will be drawn to determine the matter.
i. Fixing of Membership. The State Bar will determine Membership ten days before an Annual or Special Meeting for voting purposes at the upcoming meeting.
j. Official Record. The Executive Director will maintain an official record of all State Bar meetings.
4.5. Membership Fees. The State Bar may annually impose upon the Members approved State Bar dues ("Dues"), CLE Fee, and Client Assistant Fee (collectively "Membership Fees". Membership Fees will be set to meet the State Bar's financial obligations. The Bar Commission may set the Membership Fees based upon membership type or other criteria. The Executive Director will assess Membership Fees on a calendar-year basis. Members must pay the Membership Fees in advance each January 1st.
a. Approval. The Supreme Court must approve Membership Fees proposed by the Bar Commission before the Executive Director may assess them on the Members.
b. Active Member Dues. Active Member Dues are:
i. Calendar Year of Admission. Waived for newly admitted Members the calendar year of admission unless, in a prior year, that Member was a member of another state bar or practiced law in another state or jurisdiction without mandatory bar membership; in either of those cases, the newly admitted Member will pay Dues based on years in practice specified in Paragraph 4.5.b.ii, or 4.5.b.iii, below.
ii. 2nd - 4th Calendar Years after Admission Year. $290, except Members electing Emeritus Status will pay $125.
iii. 5th Calendar Year after Admission Year and Thereafter. $415, except Members electing Emeritus Status will pay $125.
c. Inactive Member Dues. Inactive Member Dues are $125.
d. Continuing Legal Education. Each Active Member, except Supreme Court Justices, Circuit Court Judges, Magistrate Judges, and Members electing Emeritus Status, must pay a $125 Continuing Legal Education program fee ("CLE Fee").
e. Client Assistance Fund. The State Bar may charge each Active Member, after the calendar year of admission, a Client Assistance Fund fee of $25 ("Client Assistance Fee"). The State Bar will hold this fee in a separate Client Assistance Fund. The State Bar will charge the Client Assistance Fee whenever the fund balance is less than $80,000 and will continue to charge the fee until the Client Assistance Fund balance reaches $100,000. The State Bar will not charge the Client Assistance Fee when the fund balance is $100,000 or greater. Federal Judges, Supreme Court Justices, Circuit Court Judges, and Magistrate Judges will be exempt from the Client Assistance Fee. The Bar Commission may use the Client Assistance Fund to pay premiums on a group insurance policy should the Commission determine that the purchase of such coverage would be an appropriate use of the fund.
f. Failure to Pay. The Bar Commission may suspend any Member who does not pay the Membership Fees when due, and upon suspension, that Member will not be in good standing with the State Bar. A suspended Member may, at any time within five years of the suspension date, be reinstated upon payment of all delinquent and current Membership Fees ("Delinquent Fees") together with any penalties imposed by the Bar Commission. Penalties imposed by the Bar Commission may not exceed double the Delinquent Fees amount ("Delinquency Penalty"). After five years, a Member may only be reinstated as specified in Section 4.3.
ARTICLE V - STATE BAR ELECTED OFFICERS
5.1. Officers. The State Bar elected officers are President and President Elect (individually "State Bar Officer" and collectively "State Bar Officers"). Only Active Members may be elected to either of these offices.
5.2. President Elect Nomination. To qualify as a President Elect candidate, the candidate must be an Active Member and complete a nominating petition containing signatures of at least fifteen Active Members. Candidates must file completed nominating petitions with the Executive Director at least 10 days before the Annual Meeting.
5.3. Installation, Election, and Term. The President will install the President Elect as President before the Annual Meeting adjourns each year. The Active Members at the Annual Meeting will then, by majority vote, elect the next President Elect. The President will serve a one-year term. The President Elect will serve in that capacity until installed as President the following year.
5.4. Duties. The State Bar Officers' duties are as follows:
a. President. The President may:
i. preside at all State Bar and Bar Commission meetings;
ii. execute, with the Executive Director, all State Bar contracts and instruments as authorized by the Bar Commission;
iii. appoint Members to standing and ad hoc committees;
iv. be an ex-officio, non-voting Member of all committees except as specified otherwise herein;
v. perform all duties incident to the office of President and such other duties as may be assigned by the Bar Commission; and,
vi. perform the duties of the Executive Director in the event the Executive Director is unable to perform. The President may appoint someone to serve as the Executive Director if the President is unwilling or unable to perform those duties. The President or the President's appointee will serve until the Bar Commission hires a new Executive Director or until the current Executive Director is able to return to and perform the duties of that position.
b. President Elect. The President Elect will perform and be vested with all the powers and duties of the President in the event the President is absent or otherwise unwilling or unable to perform. The President Elect may perform such duties as may be assigned by the President and Bar Commission.
5.5. Vacancy. If the office of President becomes vacant for any reason, the President Elect will complete the remainder of the President's term. After completing the President's unfulfilled term, the President Elect will serve his or her full term as President. If the office of President Elect becomes vacant for any reason, the Bar Commission, by majority vote, will fill that vacancy. The person appointed to fulfill the President Elect's remaining term will hold office until the next President Elect is elected at the Annual Meeting of the State Bar.
ARTICLE VI - EXECUTIVE DIRECTOR
6.1. Executive Director. The Executive Director will have general charge and control of day-to-day State Bar affairs subject to Bar Commission and State Bar Officer direction and Supreme Court rule. The Executive Director is the State Bar's Secretary/Treasurer.
6.2. At Will. Except as stated otherwise in these Bylaws or by separate contract, the Executive Director is an at-will employee.
6.3. Duties. The Executive Director will:
a. carry out and oversee the State Bar strategic plan;
b. advocate the State Bar's agenda with South Dakota's legislative and executive branches of government;
c. work with the Supreme Court to create appropriate rules regulating the State Bar and its Members;
d. serve notice of all Member and Bar Commission meetings;
e. keep the minutes of Member and Bar Commission meetings and authenticate State Bar records as necessary;
f. maintain the State Bar's books, papers, and records and provide for their inspection for any proper purpose at any reasonable time;
g. maintain a current register of the names and post office addresses of all Members and include other information provided by the Members;
h. participate in national conferences and forums approved by the Bar Commission;
i. approve bills for payment, subject to limits prescribed by the Bar Commission;
j. execute all contracts and instruments of conveyance in the State Bar's name as authorized by the Bar Commission;
k. have custody, and keep proper account of all State Bar funds;
l. sign checks, drafts, and notes on behalf of the State Bar;
m. endorse checks, notes, and other obligations payable to the State Bar and deposit them in the State Bar account determined by the Bar Commission;
n. pay all normal and ordinary State Bar bills in the ordinary course of business and seek Bar Commission approval before paying any extraordinary bill;
o. submit State Bar books and records for a Board approved independent audit;
p. deliver a financial report at each regular Bar Commission meeting and deliver an annual financial report to the Members at the Annual Meeting;
q. propose policies to ensure proper functioning of the State Bar;
r. hire, supervise, and, if necessary, terminate State Bar employees and determine State Bar employees' salary and benefits subject to Bar Commission approval;
s. deliver a report to the Board at each regular Board meeting and to the Members at their Annual Meeting and prepare other reports as requested by the Bar Commission;
t. call Member and Bar Commission Special Meetings, as provided for in these Bylaws; and,
u. perform all other duties usually incident to the chief operations officer and corporate secretary/treasurer along with any other duties assigned by the Board and President.
6.4. Bond. The Bar Commission in its discretion may require the Executive Director and any other State Bar agent or employee to give a bond in such amount, and with a surety, as it determines. The State Bar will pay the expense of any such bond.
6.5. Termination. The Executive Director may resign by delivering written notice to any State Bar Officer or Bar Commissioner. The Board may remove the Executive Director as specified in the Executive Director's employment contract. If the Executive Director is not under a contract, the Bar Commission may remove the Executive Director at any time, with or without cause, by an affirmative vote of 2/3rds of all Commissioners.
ARTICLE VII - BAR COMMISSION
7.1 Governing Powers. A Board of Bar Commissioners elected by the Members will govern and manage the business and affairs of the State Bar ("Bar Commission" or "Board"). The Board has all the power and authority necessary or appropriate for the administration of State Bar affairs consistent with Supreme Court rule, South Dakota Law, and these Bylaws. The Board may adopt rules, regulations, policies, and directives necessary for efficient State Bar operation. The Bar Commission will perform the acts necessary to locate and hire the Executive Director and determine the Executive Director's salary and benefits.
7.2. Composition. The Bar Commission is composed of one Active Member from each of South Dakota's judicial circuits and six at-large Active Members ("Commissioner" individually or "Commissioners" collectively). The Bar Commission also includes the State Bar President and President Elect.
7.3. Commissioner Qualifications. A Commissioner candidate must be an Active Member at the time of election and reside in the judicial circuit that the candidate is seeking to represent. No two at-large Commissioners may reside within the same judicial circuit.
7.4. Commissioner Nomination. To qualify as a Commissioner candidate, the Member must meet the election qualifications specified in Section 7.3 and either:
a. Petition. Complete a nominating petition containing signatures of at least:
i. Judicial Circuit Commissioner. Five Active Members residing in the same judicial circuit the candidate is seeking to represent.
ii. At-Large Commissioner. Fifteen Active Members.
Candidates must file completed nominating petitions with the Executive Director at least 10 days before the Annual Meeting.
b. Floor. Be orally nominated by an Active member from the floor at the Business Meeting, provided the nominee's name and position sought was submitted to the Executive Director or other State Bar employee at least 40 hours before the beginning of the Business Meeting. After the submission deadline and until the beginning of the Business Meeting, the Executive Director will immediately and conspicuously post the names and Commissioner position sought for each candidate eligible for floor nomination.
7.5. Commissioner Election. The State Bar will conduct Commissioner elections at the Business Meeting according to the Election Cycle. The Executive Director will prepare, or cause to be prepared, ballots in the form determined by the Bar Commission. Only Active Members may vote in Commissioner elections. Any Commissioner candidate receiving a majority of the votes properly cast will be elected. If no Commissioner candidate receives a majority of the votes, the Commissioner candidate receiving the fewest votes will be eliminated from consideration as a Commissioner. The Members will then vote on the remaining candidates. Any Commissioner candidate receiving a majority of the votes properly cast will be elected. If no Commissioner candidate receives a majority of the votes, the Commissioner candidate receiving the fewest votes will be eliminated from consideration as a Commissioner. Voting and candidate elimination will continue in this manner until a candidate receives a majority of the votes. Tie votes will be determined by lot.
7.6. Commissioner Election Cycle. Active Members will elect Commissioners to represent each judicial circuit and the at-large positions according to the following election cycle:
a. Circuits 1, 2, 3, 6, and 7. 2019, 2022, 2025, and every third year thereafter.
b. Circuits 4 and 5 and two At Large. 2020, 2023, 2026, and every third year thereafter.
c. Four At Large. 2021, 2024, 2027, and every third year thereafter.
7.7. Commissioner Term. Upon election, Commissioners will hold office for a three-year term beginning at the close of the Annual Meeting in the year of election. No Commissioner may hold office for successive terms. A Commissioner appointed to the Board according to Section 7.19 may be elected to serve one full term in the appropriate circuit or at-large circuit after the expiration of the appointed term. Upon expiration of the Commissioner's term, or if the Commissioner leaves the Board for any reason, that Member is not eligible for Board appointment or election for one year. After an absence of at least one year, the Member is eligible for Board appointment or Board election provided the Member meets the Board criteria.
7.8. Regular Meetings. The Bar Commission will meet immediately after the adjournment of the Annual Meeting and transact any business that may properly come before the Bar Commission. Additionally, the Board will hold at least four regular meetings throughout the year according to a schedule and at locations determined by the Board ("Regular Meetings").
7.9. Special Meetings. Any State Bar Officer or any three Commissioners may call a Special Meeting of the Board by delivering the Call for Special Meeting to the Executive Director. The Call must state the Special Meeting's purpose. Upon receipt of the Call, the Executive Director must fix a date for the Special Meeting no more than ten days after receipt of the Call.
7.10. Notice. The Executive Director must, by mail or electronic communication, provide all Board Members at least 20 days' notice of any Regular Meeting and four hours' notice of any Special Meeting. The notice must state the time, place, and, in the case of a Special Meeting, the purpose of the meeting. Notice by mail is given when deposited in the United States mail with sufficient postage. Notice by electronic communication may be given by facsimile, e-mail, text message, or other electronic means, at a number or electronic address designated by the Board Member. Notice is considered received when it is given.
7.11. Waiver of Notice. Attendance by a Board Member at any Board meeting will constitute a waiver of notice by that Board Member unless the Board Member announces at the beginning of the meeting that he or she is attending for the sole purpose of objecting to the meeting on the grounds of improper notice.
7.12. Quorum. At the meeting following the Annual Meeting, the Board Members present will constitute a quorum. At all other Bar Commission meetings, eight Board Members will constitute a quorum. The acts of the majority of the Board Members present at a duly held meeting will be the acts of the Board, except when a larger number is required by Supreme Court rule, South Dakota Law, or these Bylaws.
7.13. Proxy. Board Members may not vote by proxy.
7.14. Voting. All Board Members have one vote on any matter properly presented to the Board. A majority of the Board Members present at any meeting voting in favor of any matter properly brought before the Commission will constitute passage of the matter.
7.15. Action in Lieu of Meeting. The Board may, by electronic communication or written action, take any action the Board may take at a meeting, provided all Board Members were notified of the action in lieu of meeting before the action. All electronic communications must comply with Section 2.4. The written action is effective when signed or consented to unless a different effective date is stated. When written action is signed or consented to by fewer than all Board Members, the Board will immediately provide all Board Members with the text and effective date of the written action. Failure to provide such notice does not invalidate the written action.
7.16. Expenses. By resolution of the Board, Board Members will receive reimbursement for reasonable expenses incurred to attend each Board meeting and other meetings authorized by the Bar Commission.
7.17. Compensation. Board Members will receive no compensation for attending Board meetings and other meetings on behalf of the State Bar or the Bar Commission unless the Board by majority vote determines otherwise.
7.18. Commissioner Termination. A Commissioner's term will end immediately upon a Commissioner:
a. ceasing to be an Active Member;
b. establishing primary residency outside South Dakota;
c. establishing primary residency outside the circuit from which the Commissioner was elected for those Commissioners elected to represent a judicial circuit; and,
d. establishing primary residency in a judicial circuit that is the residence of another at-large Commissioner.
A change in circuit boundaries will not terminate a Commissioner's term.
7.19. Commissioner Vacancies. A Commissioner vacancy, regardless of cause, including an increase in the number of Commissioners, will be filled by majority vote of the remaining Commissioners. Any Commissioner appointed to fill a vacancy will serve the remainder of the vacating Commissioner's term.
7.20. Commissioner Attendance. Commissioners are expected to attend all Board meetings, Member meetings, committee meetings of which the Commissioner is a member, and State Bar functions. Commissioners may participate in any meeting by teleconference or similar communications technology ("Teleconference") that allows all persons participating in the meeting to hear each other at the same time. Participation by Teleconference constitutes presence in person at a meeting. Any Commissioner with more than three unexcused absences from Regular Meetings may be deemed by the Board to have resigned as a Commissioner.
7.21. Commissioner Resignation. A Commissioner may resign at any time by delivering a written resignation to the Executive Director or State Bar Officer. The resignation is effective when received, unless a later date has been specified in the notice.
ARTICLE VIII - STATE BAR COMMITTEES
8.1. Establishment. The State Bar President or Bar Commission may establish one or more standing and ad hoc committees to carry out the business of State Bar and upon so doing will specify the purpose of each in the State Bar records.
8.2. Membership. The President will promptly after installation, appoint Members to State Bar committees and select each committee's chair. Individuals who are not State Bar Members may serve on any committee if the President determines the non-Member's knowledge, skill, and experience is Members may be voting or non-voting members as determined by the Board. The State Bar Officers and Executive Director are ex-officio, non-voting Members of all committees except the Executive Director will not be a member of any Nominating Committee established as part of an Executive Director search.
8.3. Term. All committee members serve one-year terms; the number of terms is not limited.
8.4. Reporting. Each committee must report to the Bar Commission actions approved and recommendations adopted promptly after the action or recommendation. Each committee must also provide the State Bar a summary of its activities by April 30th each year.
8.5. Disciplinary Action. The President may remove a member from any committee at any time, except the Executive Committee. The Bar Commission may, by majority vote, remove a committee member if the President is unwilling or unable to do so.
8.6. Standing Committees. The State Bar will have the following Operational and Professional standing committees:
a. Operational. The following committees will assist with the effective administration of State Bar operations and maintain compliance with various requirements under United State Code and South Dakota Law.
i. Executive. The President, President Elect, and Executive Director constitute the Executive Committee. The Executive Committee is authorized to act on behalf of the Bar Commission between meetings on matters that, if action was not taken, would detrimentally affect the State Bar or its Members. The Executive Committee may exercise other powers the Bar Commission may determine and which may be legally delegated. The Executive Committee will report its actions to the Bar Commission at the first Board meeting following any action or by delivering copies of the Executive Committee meeting minutes to each Commissioner in advance of the next Board meeting.
ii. Finance and Audit. This committee will assist the Bar Commission in overseeing accounting policies and practices, financial reporting and auditing, and provide the Bar Commission with recommendations. The committee will, in conjunction with the Executive Director, cause the State Bar's books and records to be audited by an independent certified public accountant as often as required by statute or rule, or as required by the Board. The committee will recommend independent auditors to the Bar Commission. The committee along with the Executive Director will oversee each audit and present the results to the Bar Commission and Members at the Annual Meeting. The committee will periodically review the State Bar's financial records with respect to: the audit results, changes in accounting principles or practices, areas of audit concern, contents of the independent auditors' management letter, and the State Bar's response thereto.
b. Professional. Any number of committees may be established to provide Members with professional development and continuing education opportunities. The State Bar will note the creation and purpose of each committee in its records. Each committee may establish its own operating rules and procedures and properly memorialize them in the committee records and with the State Bar. All committees must meet as often as necessary to accomplish their stated purposes.
ARTICLE IX - STATE BAR SECTIONS
9.1. Establishment. The Bar Commission may establish one or more Member Sections when presented with a petition evidencing sufficient State Bar Member interest and when creation of the Section is in the best interests of the State Bar. The Bar Commission will govern any Section created, and the Section will replace any similar State Bar committee. The State Bar will note the creation and purpose of each Section in the State Bar records.
9.2. Membership. The Bar Commission will determine membership criteria for each Section. The State Bar Officers and the Executive Director will be ex-officio, non-voting members of each Section. Each Section member has one vote to cast on all matters that come before the section.
9.3. Operations. Each Section will be self-governing and may establish bylaws, a board of directors, and other governance structure as approved by the Bar Commission. Sections may hold elections of the Section members to select members for governance positions. Sections may establish their own operating rules and Procedures and properly memorialize them in the Section records and with the State Bar. All Sections must meet at the Annual Meeting and otherwise as often as necessary to accomplish the Section's purpose.
9.4. Reporting. Sections must deliver their meeting minutes to the Executive Director after each Section meeting. Section actions and recommendations are not binding upon the Board. Each Section must also provide the State Bar a summary of its activities by April 30th each year.
ARTICLE X - FISCAL OPERATIONS
10.1. Fiscal year. The State Bar's fiscal year begins on August 1st each year and ends on July 31st the following year.
10.2. Document signing. The Bar Commission may authorize any State Bar Officer or State Bar employee to enter into any contract or execute and deliver any instrument in the State Bar's name. Such authority may be general or confined to specific matters.
10.3. Loans. No loans will be taken out in the State Bar's name or no evidences of indebtedness may be issued in its name unless authorized by Bar Commission resolution. Such authority may be general or confined to specific instances. No loan may be granted to the Executive Director, any other State Bar employee, State Bar Officer, or Bar Commissioner.
10.4. Checks, Drafts, and Accounts. All checks, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the State Bar's name must be signed by those individuals authorized to do so by the Bar Commission by general authorization or specific resolution. The State Bar will deposit all its funds in such banks, trust companies, or other depositories determined by the Board.
10.5. Budget. The Bar Commission must approve the annual State Bar budget.
10.6. Property. Title to all State Bar property will be held in its name or in an entity owned or controlled by the State Bar.
ARTICLE XI - CONFLICTS OF INTEREST
11.1. Basis. Conflicts of interest must be avoided because they place, or appear to place, the interests of others ahead of the State Bar's obligations to its corporate purposes and to the public interest. Conflicts of interest reflect adversely upon the persons involved and upon the institutions with which they are affiliated, regardless of the actual facts or motivations of the parties. A conflict of interest refers only to personal, proprietary interests of the persons covered by this policy and their immediate families and not to philosophical or professional differences of opinion. Real and apparent conflicts of interest with State Bar affairs may sometimes occur because the many persons associated with the State Bar have multiple interests, affiliations, and various positions of responsibility within the community. It is likely that a person covered by this policy will owe identical duties to two or more organizations having similar activities. However, it is not in the long-range best interests of the State Bar to terminate or cease all association with persons who may have real or apparent conflicts or dualities of interest if there is a prescribed and effective method of rendering such conflicts harmless to all concerned.
11.2. Statement. Recognizing the underlying policy basis, the State Bar will not preclude dealings with those having actual or apparent conflicts or dualities of interest so long as the same are promptly and fully disclosed whenever they exist or occur, and the Board determines that the conflict or duality of interest is harmless to the State Bar.
11.3. Application. This policy applies to the Executive Director, all other State Bar employees, State Bar Officers, and Bar Commissioners; the referenced individual's immediate family members; and independent contractors providing services or materials to the State Bar (collectively "Covered Persons"). Each Covered Person must discharge his or her duties in good faith, in the best interests of State Bar, and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. It is the Executive Director's obligation to publicize this policy to all Covered Persons on a recurring basis.
11.4. Full Disclosure. Each Covered Person must disclose all real or apparent conflicts or dualities of interest with the State Bar's activities. Additionally, Covered Persons must annually complete a conflict of interest disclosure form as specified by the Board. "Disclosure" as used in these Bylaws is defined as providing a written description of the facts comprising the real or apparent conflict or duality of interest to the Executive Director, State Bar Officers, or Bar Commission.
11.5. Proscribed Activity. Where a Covered Person believes there may exist a real or apparent conflict or duality of interest, that person must, in addition to filing the notice of disclosure required under Section 11.4, abstain from making motions, participating in relevant deliberations, voting, executing agreements, or taking any other similar direct action on behalf of the State Bar where the conflict or duality of interest might pertain. If a Bar Commissioner discloses a conflict, the Board may:
a. require the Commissioner to recuse on the conflicted matter;
b. authorize the Commissioner to opine on the merits of the matter but refrain from voting;
c. waive the conflict and authorize the Commissioner to vote; or,
d. take other or no action if the Board determines the conflict or duality of interest harmless to the State Bar.
ARTICLE XII - INDEMNIFICATION
12.1. Coverage. Any person who at any time serves or has served as a Bar Commissioner, State Bar Officer, or State Bar employee, or in a capacity benefitting the State Bar has a right to be indemnified by the State Bar to the fullest extent permitted by South Dakota law against:
a. reasonable expenses, including reasonable attorney fees, actually incurred by him or her in connection with any threatened, pending, or completed action, suit or proceedings and any appeal thereof, whether civil, criminal, administrative, or investigative, seeking to hold him or her liable by reason of the fact that he or she is or was acting in such capacity; and,
b. reasonable payments made by him or her in satisfaction of any judgment, money decree, fine, penalty, or settlement for which he or she may have become liable in any such action, suit, or proceeding.
12.2. Payment. Indemnifiable expenses claimed may not be paid in advance of any final disposition unless the Bar Commission approves otherwise by majority vote.
12.3. Evaluation. The Bar Commission will evaluate the claimant's actions giving rise to the indemnity claim and of the amount of indemnity claimed by him or her.
12.4. Consideration. Any person who at any time after the adoption of this Article XII serves or has served in any of the previously mentioned capacities for or on behalf of State Bar will be deemed to be doing or to have done so in reliance upon, and as consideration for, the right of indemnification provided herein. Such right will inure to the benefit of the legal representatives of any such person and is not exclusive of any other rights to which such person may be entitled. Any repeal or modification of these indemnification provisions will not affect any rights or obligations existing at the time of such repeal or modification.
12.5. Insurance. The State Bar may, by resolution of the Bar Commission, purchase and maintain insurance on behalf of any Bar Commissioner, State Bar Officer, the Executive Director, and other State Bar employee or State Bar agent.
ARTICLE XIII - PARLIAMENTARY AUTHORITY
13.1. Rules of Order. The most current edition of Mason's Manual of Legislative Procedure will govern the State Bar in all matters to which they are applicable and in which they are not inconsistent with these Bylaws and any State Bar adopted special rules of order.
ARTICLE XIV - AMENDMENT
14.1. Amendment. The State Bar may amend or restate the Bylaws at its Annual Meeting. Any proposed amendment or restatement must be submitted to the Executive Director in writing at least 45 days before the Business Meeting. The Executive Director will notify Active Members, in the manner specified in these Bylaws, of properly submitted Bylaw change proposals at least 20 days before the Business Meeting. Active Members will vote on the proposed Bylaw changes Business Meeting. Members may propose amendments to the proposed Bylaw changes from the floor, but all floor amendment proposals must be in writing and pertain to the original Bylaw amendments. Bylaw amendments or restatement will be adopted by an affirmative vote of a majority of the Members present. Bylaw changes will not become effective until approved by the Supreme Court.
Source: SL 2019, ch 233 (Supreme Court Rule 19-12), eff. Feb. 25, 2019; SL 2022, ch. 248 (Supreme Court Rule 21-07), eff. Jan. 1, 2022; SL 2024, ch. 239 (Supreme Court Rule 24-01), eff. Feb 20, 2024.
CHAPTER 16-17A
ASSISTANCE TO IMPAIRED LAWYERS AND JUDGES
16-17A-1 Definitions.
16-17A-2 Immunity for assistance--Exclusions.
16-17A-3 Immunity for reporting--Exclusions.
16-17A-4 Confidential information--Source--Limited disclosure--Limited use.
CHAPTER 16-18
POWERS AND DUTIES OF ATTORNEYS
16-18-1 License and bar membership required to practice law--Injunction to restrain violations.
16-18-1.1 Sexual harassment prevention training for attorneys.
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 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.
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.
16-18-27 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 16-18-30. Repealed by SL 1979, ch 150, § 21.
16-18-31 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 16-18-33. Repealed by SL 1989, ch 30, § 50.
16-18-34 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.
16-18-A SOUTH DAKOTA RULES OF PROFESSIONAL CONDUCT
APPENDIX TO CHAPTER 16-18
SOUTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Preamble: A Lawyer's Responsibilities.
Scope.
CLIENT-LAWYER RELATIONSHIP.
1.0. Terminology.
1.1. Competence.
1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
1.3. Diligence.
1.4. Communication.
1.5. Fees.
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.
COUNSELOR.
2.1. Advisor.
2.2. Reserved.
2.3. Evaluation for Use by Third Persons.
2.4. Lawyer Serving as Third-Party Neutral.
ADVOCATE.
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 Assistance.
5.4. Professional Independence of a Lawyer.
5.5. Unauthorized Practice of Law; Multi-jurisdictional Practice of Law.
5.6. Restrictions on Right to Practice.
5.7. Responsibilities Regarding Law-Related Services.
PUBLIC SERVICE.
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.
7.2. Advertising.
7.3. Solicitation of 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.
8.4. Misconduct.
8.5. Disciplinary Authority; Choice of Law.
PREAMBLE: A LAWYER'S RESPONSIBILITIES
[1] 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.
[2] 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.
[3] 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.
[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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
SCOPE
[14] 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.
[15] 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.
[16] 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.
[17] 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.
[18] 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.
[19] 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.
[20] 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 non-disciplinary 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.
[21] 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.
Source: SL 2022, ch 249 (Supreme Court Rule 21-08), eff. Sept. 1, 2021.
CLIENT-LAWYER RELATIONSHIP
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 electronic communications. 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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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.
(e) Notwithstanding subsection (d), a lawyer may counsel or assist a client regarding conduct expressly permitted by South Dakota Cannabis laws, even if the same conduct violates federal law, but the lawyer must inform the client that the conduct violates federal law and advise the client about the legal consequences under federal law of the client's proposed course of conduct.
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, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by 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;
(5) To comply with other law or a court order; or
(6) To detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018; SL 2022, ch 250 (Supreme Court Rule 21-09), eff. Sep. 1, 2021.
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;
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
(3) A lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization, and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, lodging, transportation, and other expenses incidental to the representation. The lawyer:
(i) May not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) May not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) May not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this rule may be provided even if the representation is eligible for fees under a fee-shifting statute.
(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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; Supreme Court Rule 25-06, eff. Mar. 5, 2025.
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:
(1) The prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) The prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, and
(i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii) Written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and
(iii) Certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.
(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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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 that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if:
(1) Despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) The lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.
(f) 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.
(g) 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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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.
(e) Considerations
(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.
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.
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 consults with a lawyer about 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 learned information from a prospective client shall not use or reveal that information, 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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
COUNSELOR
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.
ADVOCATE
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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) Promptly disclose that evidence to an appropriate court or authority, and
(2) If the conviction was obtained in the prosecutor's jurisdiction,
(i) Promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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 or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender, and or sender's lawyer if sender is represented.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme 06), eff. July 1, 2018.
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 Assistance
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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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; Multi-jurisdictional 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 or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) Are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission, and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) Are services that the lawyer is authorized to provide by federal law or other law or rule to provide in this jurisdiction, provided that the lawyer obtains a South Dakota sales tax license and tenders the applicable taxes pursuant to chapter 10-45.
(e) For purposes of paragraph (d):
(1) The foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or
(2) The person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this rule by, in the exercise of its discretion, the South Dakota Supreme Court.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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.
PUBLIC SERVICE
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; and
(4) Refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) The reciprocal referral agreement is not exclusive, and
(ii) The client is informed of the existence and nature of the agreement.
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).
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
Rule 7.3. Solicitation of Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment 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 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 target of the solicitation 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 anyone shall be deposited no less than 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.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 297 (Supreme Court Rule 18-06), eff. July 1, 2018.
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) Paragraphs (a) and (b) shall not apply to information obtained by a lawyer or judge as a member of a committee, organization or related group established or approved by the State Bar or the Supreme Court to assist lawyers, judges or law students with a medical condition as defined in § 16-19-29(1), including the name of any individual in contact with the member and sources of information or information obtained therefrom. Any such information shall be deemed privileged on the same basis as provided by law between attorney and client.
(d) A member of an entity described in paragraph (c) shall not be required to treat as confidential, communications that cause him or her to believe a person intends or contemplates causing harm to himself, herself or a reasonably identifiable person and that disclosure of the communications to the potential victim or individuals or entities reasonably believed to be able to assist in preventing the harm is necessary.
Source: SL 2004, ch 327 (Supreme Court Rule 03-26), eff. Jan. 1, 2004; SL 2018, ch 303 (Supreme Court Rule 18-12), eff. July 1, 2018; SL 2021, ch 252 (Supreme Court Rule 20-06), eff. Aug. 26, 2020.
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.
16-19-1
Transferred.
16-19-2
Repealed.
16-19-3
Transferred.
16-19-4
Repealed.
16-19-5 to 16-19-9. Transferred.
16-19-10, 16-19-11. Repealed.
16-19-12
Transferred.
16-19-13
Repealed.
16-19-14
Transferred.
16-19-15 to 16-19-18. Transferred.
16-19-19
Repealed.
16-19-20
Inherent power of Supreme Court.
16-19-21
Attorneys subject to discipline by Supreme Court and board.
16-19-22
Supreme Court exclusive power to disbar or suspend attorney.
16-19-23
Powers reserved to other courts to control proceedings.
16-19-24
Disciplinary board of State Bar--Appointment and terms of members--Vacancies.
16-19-25
Chair and vice-chair of the board.
16-19-26
Meetings of the board--Quorum--Vote required for action.
16-19-27
Compensation of members of the board.
16-19-28
Disqualification of board members in particular proceedings--Ad hoc appointments
to restore full membership.
16-19-29
Powers and duties of disciplinary board generally.
16-19-30
Complaints and testimony privileged--Board and staff immune from suit.
16-19-31
License to practice law as trust--Duty to conform to standards.
16-19-32
Violations by attorneys as grounds for discipline.
16-19-33
Specific grounds for discipline of attorneys.
16-19-34
Deceit and collusion as grounds for disbarment--Treble damages.
16-19-35
Kinds of discipline authorized.
16-19-35.1
Petition by board for temporary suspension.
16-19-36
Attorney's conviction of crime to be reported to disciplinary board.
16-19-37
Suspension from practice on conviction of serious crime--Setting aside order.
16-19-38
Reinstatement of suspended attorney on reversal of conviction--Pending proceedings
unaffected.
16-19-39
Reference for formal disciplinary proceedings on conviction of serious crime.
16-19-40
Parties initiating investigations of attorney's conduct.
16-19-41
Reference for investigation and report in proceeding initiated by Supreme Court.
16-19-42
Complaint and reference for investigation and report in proceeding initiated by
attorney general.
16-19-43
Investigation or reference for investigation and report in proceeding initiated by the
board.
16-19-44
Individual complaint filed with board or Supreme Court--Reference for investigation
and report.
16-19-45
Investigation by board on reference--Report and recommendation filed with Supreme
Court.
16-19-46
Proceedings not to be abated for failure to prosecute or settlement.
16-19-47
Processing not to be deferred because of similarity to other pending litigation.
16-19-48
Transfer to medical inactive status for a medical condition.
16-19-49 Resumption of disciplinary proceedings when attorney no longer on medical inactive status.
16-19-50 Accused attorney to be given opportunity to state position.
16-19-51 Procedure required in investigations by board or attorney general.
16-19-52 Notice to attorney of complaint and allegations.
16-19-53 Methods of investigation to be used--Informal conference.
16-19-54 Attorney's duty to respond to board.
16-19-55 Subpoena power of board and attorney general--Disobedience as contempt.
16-19-56 Repealed.
16-19-57 Repealed.
16-19-58 Certified judgment of conviction as evidence against attorney.
16-19-59 Dismissal of complaint on finding not meritorious.
16-19-60 Conditions imposed on attorney on finding of meritorious complaint--Dismissal on compliance.
16-19-61 Notice to attorney of report and proposal for private reprimand.
16-19-62 Response by attorney to proposal for private reprimand--Report and findings by board.
16-19-63 Repealed.
16-19-64 Provisions governing formal disciplinary proceedings.
16-19-65 Consent by attorney to disbarment--Contents of affidavit.
16-19-66 Disbarment by consent--Public disclosure of order.
16-19-67 Findings of fact, conclusions of law, and recommendation of investigating agency shall constitute a formal accusation.
16-19-68 Repealed.
16-19-68.1 Attorney to appear before Supreme Court.
16-19-69 Repealed.
16-19-70 Repealed.
16-19-70.1 Costs and expenses of disciplinary proceedings.
16-19-70.2 Allowable costs and expenses.
16-19-70.3 Proof of costs and expenses required.
16-19-70.4 Judgment for costs against attorney.
16-19-71 Advice to Supreme Court of discipline in another jurisdiction--Copy of order filed--Conclusive evidence of misconduct.
16-19-72 Notice to attorney of disciplinary order from other jurisdiction.
16-19-73 Repealed.
16-19-74 Imposition of identical reciprocal discipline--Grounds for other disposition.
16-19-75 Newspaper publication of suspension or disbarment.
16-19-76 Notice to courts of suspension or disbarment--Order for protection of clients.
16-19-77 Effective date of suspension or disbarment--New matters not to be accepted--Winding up of pending business.
16-19-78 Notice to office clients of disbarment or suspension.
16-19-79 Notice to opposing counsel and clients involved in litigation or administrative proceedings--Leave of court or agency to withdraw.
16-19-80 Affidavit of compliance filed by disbarred or suspended attorney.
16-19-81 Record of compliance maintained by disbarred or suspended attorney--Condition precedent to reinstatement.
16-19-82 Noncompliance by attorney as contempt.
16-19-83 Reinstatement order required before resumption of practice--Time of application--Waiting period after denial of reinstatement.
16-19-84 Petition and hearing on reinstatement--Advance cost deposit--Burden of proof.
16-19-85 Participation by board counsel in hearing on reinstatement--Appearance by and examination of petitioner.
16-19-86 Board findings and recommendation on reinstatement--Placement on Supreme Court calendar.
16-19-87 Dismissal of petition or order of reinstatement--Conditions imposed on petitioner.
16-19-88 Transfer to medical inactive status of attorney subject to certain judicial determinations or orders.
16-19-89 Petition by board for determination of attorney's competency to practice law--Directions for investigation.
16-19-90 Notice to attorney of medical inactive status proceedings--Representation of attorney.
16-19-91 Burden of proof in medical inactive status and reinstatement proceedings.
16-19-92 Order transferring attorney to medical inactive status--Pending disciplinary proceedings.
16-19-93 Reinstatement order required before attorney on medical inactive status resumes practice.
16-19-94 Petition for reinstatement by attorney on medical inactive status.
16-19-95 Reinstatement of attorney to active status.
16-19-96 Waiver of physician-patient privilege by petition for reinstatement of disabled attorney--Disclosure of names by petitioner.
16-19-97 Examination of petitioner for reinstatement--Expense of examination--Additional proof of competence to practice law.
16-19-98 Order of reinstatement to active status from medical inactive status.
16-19-99 Attorney discipline--Proceedings confidential--Violation as contempt--Exceptions.
16-19-100 Retention of files and records of disbarred, suspended, or reinstated attorney.
APPENDIX A. Rules of Procedure of the Disciplinary Board of the State Bar of South Dakota.
16-20-1
Definitions.
16-20-2
General.
16-20-3
Conditions.
16-20-4
Media coordinator.
16-20-5
Standards.
16-20-6
Hearing.
16-20-7
Appellate review.
16-21-1
Definitions.
16-21-2
Electronic document management system policy.
16-21-3
EDMS conversion.
16-21-4
Official record.
16-21-5
Signatures of judges and court officials.
16-21-6
Confidential information.
16-21-7
Certification and authentication of court record.
16-21-8
Public access.
16-21-9
Electronic transmission.
16-21A-1
Definitions.
16-21A-2
Electronic filing.
16-21A-3
Filing formats.
16-21A-4
Time of filing.
16-21A-5
Confidentiality--Sealed documents.
16-21A-6
Retention.
16-21A-7
Electronic service.
16-21A-8
Original documents.
16-21A-9
Technical issues--Relief.
16-21A-10
Scope.
APPENDIX A.
CHAPTER 16-22
PUBLIC SAFETY IMPROVEMENT PROGRAMS
16-22-1 Definitions.
16-22-2 Drug court advisory council.
16-22-3 Drug court defined.
16-22-4 Drug court program.
16-22-5 Promulgation of drug court rules.
16-22-5.1 Key components for drug courts.
16-22-5.2 Standards and guidelines in accordance with key components.
16-22-5.3 Standards in accordance with best practices publication.
16-22-6 Admissibility of drug court participant's statements and reports in legal proceedings.
16-22-6.1 Drug court sanctions.
16-22-7 Semiannual drug court performance report.
16-22-8 HOPE probation programs.
16-22-8.1 Assignment of magistrate judge to preside over HOPE probation program.
16-22-9 Promulgation of HOPE probation program rules.
16-22-10 Evaluation of program impact on public safety.
16-22-11 Promulgation of rules governing evidence-based felony probation supervision practices.
16-22-12 Report of probation practices and training implementation.
16-22-13 Promulgation of rules regarding graduated sanctions program.
16-22-14 Report of graduated sanctions.
16-22-15 Evidence-based practices training.
16-22-16 Case history--Transfer to Department of Corrections.
16-22-17 Promulgation of rules regarding earned discharge credits.
16-22-18 Award of earned discharge credits.
16-22-19 Eligibility for earned discharge.
16-22-20 Report of earned discharge credits.
16-22-21 Oversight council responsible for monitoring and reporting performance and outcome measures.
16-22-22 Membership of oversight council.
16-22-23 Meetings of oversight council--Termination--Powers and duties.
16-22-24 Treatment and intervention programs.
16-22-25 Grant program for adult community residential services to reduce risk of recidivism.
16-22-26 Request for proposals.
16-22-27 Report by grant recipient.
16-22-28 Probation and parole policies for sanctioning positive urinalysis test for controlled substance.
16-22-29 Compliant discharge from probation or parole upon completion of treatment--Conditions.
16-22-30 Report to oversight council on probation and parole infractions.
16-22-31 Report of Interstate Drug Trafficking Task Force to oversight council.
16-23-1
Attorney recruitment assistance program established.
16-23-2
Application to participate--Assessment
.
16-23-2.1
County eligibility to participate.
16-23-2.2
Municipality eligibility to participate.
16-23-3
Considerations for selection of participating counties and municipalities.
16-23-4
Attorney eligibility to participate.
16-23-5
Incentive payment to participating attorneys.
16-23-6
Agreement for payment of recruitment assistance--Repayment upon breach.
16-23-7
County and municipality funding.
16-23-8
Filing and approval of recruitment assistance agreement.
16-23-9
Ineligibility for participation in other program.
16-23-10
Annual report on status of program.
16-23-11
Payments from State Bar of South Dakota.
