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Repealed.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Repealed.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 Repealed.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Repealed.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Repealed.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.
16-19-20. Inherent power of Supreme Court.
The Supreme Court declares that it has inherent power to supervise the conduct of attorneys who are its officers.
Source: Supreme Court Rule 78-1, Preamble.
16-19-21. Attorneys subject to discipline by Supreme Court and board.
Any attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the inherent disciplinary jurisdiction of the Supreme Court and the board established by § 16-19-24.
Source: Supreme Court Rule 78-1, Rule I (a); SL 2016, ch 246 (Supreme Court Rule 16-07), eff. July 1, 2016.
16-19-22. Supreme Court exclusive power to disbar or suspend attorney.
The Supreme Court has the sole power to disbar and strike from the roster any attorney. The Supreme Court also has the power to suspend any attorney from the practice for such time not to exceed three years, to publicly censure an attorney, and to impose probation or conditions as shall seem just for cause shown.
Source: SL 1893, ch 21, § 8; SL 1899, ch 49, § 1; SL 1901, ch 60, § 8; RPolC 1903, § 692; RC 1919, § 5273; SDC 1939 & Supp 1960, § 32.1208; SDCL § 16-19-1; SL 2016, ch 246 (Supreme Court Rule 16-08), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-23. Powers reserved to other courts to control proceedings.
Nothing contained in this chapter denies any court powers necessary for that court to maintain control over proceedings conducted before it, including the power of contempt.
Source: Supreme Court Rule 78-1, Rule I (b); SL 2016, ch 246 (Supreme Court Rule 16-09), eff. July 1, 2016.
16-19-24. Disciplinary board of State Bar--Appointment and terms of members--Vacancies.
There is hereby established a seven member board to be known as "the disciplinary board of the State Bar of South Dakota" (hereinafter referred to as the "board"). The president of the State Bar shall appoint six active members of the State Bar, and the Chief Justice shall appoint one lay member. The lay member shall be a resident of South Dakota and twenty-one years of age or more. Attorney vacancies shall be filled by the president of the State Bar, and a lay vacancy shall be filled by the Chief Justice.
The term of service for members shall be one term of five years. Except as provided herein, no member shall serve for more than five years. An appointment to fill an unexpired term shall not constitute an appointment prohibiting an appointment for a subsequent term provided that the appointment for an unexpired term does not exceed three years. It is the intent of this rule to provide for the orderly and systematic rotation of board members such that not more than two attorney members complete terms each calendar year. In the event of death, disability, or resignation, resulting in multiple members completing terms in a single calendar year and in order to restore the systematic rotation of board membership, the term of appointment by the appointing person may be either shortened or extended, not to exceed two years' deviation from a five year term.
Source: Supreme Court Rule 78-1, Rule IV (a); SL 2008, ch 285 (Supreme Court Rule 07-06), eff. Jan. 1, 2008; SL 2016, ch 246 (Supreme Court Rule 16-10), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-25. Chair and vice-chair of the board.
The President of the State Bar shall designate one attorney member as chair of the board and may designate another attorney member as vice-chair.
Source: Supreme Court Rule 78-1, Rule IV (b); SL 2016, ch 246 (Supreme Court Rule 16-11), eff. July 1, 2016.
16-19-26. Meetings of the board--Quorum--Vote required for action.
The board shall meet at least quarterly at times fixed by the chair. The board may meet by the use of audio or visual medium. Four members shall constitute a quorum. The board shall act only with the concurrence of four or more members.
Source: Supreme Court Rule 78-1, Rule IV (c), (d); Supreme Court Rule 79-5; SL 2016, ch 246 (Supreme Court Rule 16-12), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-27. Compensation of members of the board.
Attorney members of the board shall receive no compensation for their services but may be reimbursed for their travel and other expenses incidental to the performance of their duties. The lay member shall receive compensation at the rate of one hundred dollars per day in addition to travel and other expenses incidental to the performance of his or her duties.
Source: Supreme Court Rule 78-1, Rule IV (e); SL 2016, ch 246 (Supreme Court Rule 16-13), eff. July 1, 2016.
16-19-28. Disqualification of board members in particular proceedings--Ad hoc appointments to restore full membership.
Board members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. In the event of recusal of attorney members of the board, the president of the State Bar shall appoint active members of the State Bar, preferably members with previous service on the board, to restore the board to full membership. In the event of the recusal of the lay member, the Chief Justice shall appoint a lay person having the qualifications set forth in § 16-19-24. Each such member shall fulfill all the responsibilities of the board member replaced.
Source: Supreme Court Rule 78-1, Rule IV (f); SL 2016, ch 246 (Supreme Court Rule 16-14), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-29. Powers and duties of disciplinary board generally.
The board shall exercise the powers and perform the duties conferred and imposed upon it by rule of the Supreme Court, including the power and duty:
(1) To consider and investigate any alleged ground for discipline or alleged medical condition of any attorney called to its attention, or upon its own motion, and to take such action appropriate to effectuate the purposes of this chapter. As used in this chapter, "medical condition" is any condition that deprives an attorney of the ability to act in compliance with the Rules of Professional Conduct and any other standards required of practicing attorneys.
(2) To appoint a board secretary, board counsel, deputy board counsel, and such personnel as may from time to time be required to assist in the performance of the functions and duties of the board.
(3) To hold informal conferences.
(4) To privately reprimand attorneys for misconduct.
(5) To maintain permanent records of all matters processed and the disposition thereof.
(6) To prosecute all disciplinary proceedings before the Supreme Court.
(7) To prosecute all proceedings before the Supreme Court to determine the medical condition of attorneys as set forth in §§ 16-19-88 to 16-19-91, inclusive.
(8) To hear applications for approval and complaints for revocation of approval of disqualified persons to act as legal assistants under subdivisions 16-18-34.4(2) to (4), inclusive.
(9) To adopt internal rules of procedure not inconsistent with this chapter and to file the same with the clerk of the Supreme Court.
Jurisdiction for complaints against members of the judiciary for conduct that occurred prior to becoming a member of the judiciary shall be vested with the Judicial Qualifications Commission.
Source: Supreme Court Rule 78-1, Rule IV (g); Supreme Court Rule 97-26; SL 2009, ch 282 (Supreme Court Rule 09-03), eff. July 1, 2009; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-30. Complaints and testimony privileged--Board and staff immune from suit.
Complaints submitted to the board or testimony with respect thereto shall be absolutely privileged and no civil action predicated thereon may be instituted. Members of the board, the board's counsel, board staff and any personnel or legal counsel appointed by the board shall be immune from suit for any conduct in the course of their official duties.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 1; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule VI; SL 1994, ch 408; SL 2016, ch 246 (Supreme Court Rule 16-15), eff. July 1, 2016.
16-19-31. License to practice law as trust--Duty to conform to standards.
A license to practice law in this state is a privilege and a continuing proclamation by the Supreme Court that a licensed attorney is an officer of the Court, is fit to be entrusted with legal and judicial matters, and is able to aid in the administration of justice. It is the duty of an attorney to act, both professionally and personally, in conformity with the standards of conduct governing members of the bar.
Source: Supreme Court Rule 78-1, Rule II (a); SL 2016, ch 246 (Supreme Court Rule 16-16), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-32. Violations by attorneys as grounds for discipline.
An act or omission by an attorney, individually or in concert with others, which violates the attorney's oath of office, the laws governing attorney conduct, or the Rules of Professional Conduct, or other disciplinary rules adopted by the Supreme Court, is misconduct and is grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.
Source: Supreme Court Rule 78-1, Rule II (b); SL 1989, ch 30, § 51; SL 2016, ch 246 (Supreme Court Rule 16-17), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-33. Specific grounds for discipline of attorneys.
The following shall similarly constitute misconduct and shall be grounds for discipline:
(1) Conviction of a crime as set forth in § 16-19-36;
(2) Disobedience to, or violation of an order of the court requiring the attorney to act or refrain from acting in a particular manner;
(3) Violation of any of the duties of an attorney as prescribed in chapter 16-18;
(4) Conviction of any of the offenses relating to attorneys set out in chapter 16-18;
(5) Violation of the provisions of § 16-17-10;
(6) Engaging or attempting to engage in the practice of law in this state, while not being an active member of the State Bar in good standing;
(7) Violation of the prohibitions of § 16-18-29;
(8) Violation of § 16-18-20.1 or 16-18-20.2;
(9) Violation of §§ 16-18-34 to 16-18-34.5, inclusive, by a supervising attorney or by a legal assistant under the attorney's supervision.
(10) Violation of the applicable provisions of the South Dakota Code of Judicial Conduct, appendix to chapter 16-2.
Source: SDC 1939 & Supp 1960, § 32.1209; SDCL § 16-9-2; Supreme Court Rule 78-1, Rule II (c); Supreme Court Rule 82-6; Supreme Court Rule 97-27; SL 2016, ch 246 (Supreme Court Rule 16-18), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-34. Deceit and collusion as grounds for disbarment--Treble damages.
An attorney who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or party to an action or proceeding, is subject to discipline, and shall forfeit to the injured party treble damages to be recovered in a civil action.
Source: PolC 1877, ch 18, § 5; CL 1887, § 466; RPolC 1903, § 698; RC 1919, § 5272; Supreme Court Rule 18, 1939; SDC 1939 & Supp 1960, § 32.1210; SDCL § 16-19-3; SL 2016, ch 246 (Supreme Court Rule 16-19), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-35. Kinds of discipline authorized.
Discipline for misconduct may be imposed as follows:
(1) Disbarment by the Supreme Court;
(2) Suspension by the Supreme Court for a specific period not to exceed three years;
(3) Placement on a probationary status by the Supreme Court for such period and with such conditions as the Supreme Court may specify;
(4) Public censure by the Supreme Court; and
(5) Private reprimand by the board.
Source: Supreme Court Rule 78-1, Rule III; SL 2016, ch 246 (Supreme Court Rule 16-20), eff. July 1, 2016.
16-19-35.1. Petition by board for temporary suspension.
The board may petition the Supreme Court to temporarily suspend an attorney from the practice of law or to impose restrictions or conditions on the attorney's practice pending full investigation, where the attorney poses a risk or danger to clients, clients' property, or the public, where the board can demonstrate a substantial likelihood that the attorney will ultimately be disciplined, and where the charges under investigation, if ultimately proven, would likely result in a suspension or disbarment. The board counsel shall serve a copy of the petition upon the attorney by certified mail. The attorney shall file with the Supreme Court a response within ten days of service or at such time as the Supreme Court may direct, and serve a copy of the response on the board counsel. The Supreme Court may schedule a hearing before the Supreme Court or order a hearing to be conducted by a referee. To the extent possible, these proceedings shall be conducted on an expedited basis. The Supreme Court may deny the petition, suspend the attorney pending formal proceedings, impose upon the attorney restrictions or conditions for the continued practice of law, or enter protective and remedial orders as the Supreme Court deems appropriate.
A temporarily suspended attorney shall not practice law or act as a legal assistant except as provided by §§ 16-18-34.4 to 16-18-34.7, inclusive.
Source: 1995, ch 306 (Supreme Court Rule 94-13); ch 315 (Supreme Court Rule 95-8); Supreme Court Rule 97-28; SL 2016, ch 246 (Supreme Court Rule 16-21), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-36. Attorney's conviction of crime to be reported to disciplinary board.
Any attorney and the clerk of any court in this state in which an attorney is convicted of a crime, except those misdemeanor traffic offenses or traffic ordinance violations not involving the use of alcohol or drugs, shall within ten days of said conviction transmit a certified judgment of conviction to the disciplinary board. If such certified judgment of conviction is for a serious crime as defined in § 16-19-37, the board shall promptly transmit the same to the Supreme Court.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 5 (b); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule X (b), (d); SL 2016, ch 246 (Supreme Court Rule 16-22), eff. July 1, 2016; SL 2017, ch 228 (Supreme Court Rule 17-05), eff. Jan. 19, 2017; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-37. Suspension from practice on conviction of serious crime--Setting aside order.
If any attorney has been convicted of a serious crime, the Supreme Court may enter an order immediately suspending the attorney from engaging in the practice of law, pending final disposition of a disciplinary proceeding to be commenced upon such conviction. The term "serious crime" includes any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a serious crime. Upon good cause shown, the Supreme Court may set aside such order suspending the attorney from engaging in the practice of law when it appears in the interest of justice so to do. An order suspending an attorney from the practice of law pursuant to this section is a suspension of the attorney for the purpose of §§ 16-19-74 to 16-19-82, inclusive, unless the Supreme Court shall otherwise order.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 5 (a); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule X (a), (g); SL 2016, ch 246 (Supreme Court Rule 16-23), eff. July 1, 2016; SL 2017, ch 229 (Supreme Court Rule 17-06), eff. Jan. 19, 2017; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-38. Reinstatement of suspended attorney on reversal of conviction--Pending proceedings unaffected.
An attorney suspended under the provisions of § 16-19-37 will be reinstated immediately upon the filing of a certified document demonstrating that the underlying conviction of a serious crime has been reversed. The reinstatement will not terminate any disciplinary proceeding then pending against the attorney.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 5 (e); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule X (f); SL 2016, ch 246 (Supreme Court Rule 16-24), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-39. Reference for formal disciplinary proceedings on conviction of serious crime.
Upon the receipt of notice of conviction of an attorney for a serious crime, the Supreme Court shall also refer the matter to the board for the institution of a formal proceeding in which the sole issue to be determined shall be the extent of the final discipline to be imposed. A disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 5 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule X (e); SL 2016, ch 246 (Supreme Court Rule 16-25), eff. July 1, 2016.
16-19-40. Parties initiating investigations of attorney's conduct.
An investigation of an attorney's conduct as possible grounds for discipline may be initiated by:
(1) The Supreme Court;
(2) The board;
(3) The Attorney General; or
(4) An individual.
Source: SL 1901, ch 60, § 9; RPolC 1903, § 693; SL 1911, ch 85, §§ 1, 2; RC 1919, § 5274; Supreme Court Rule 20, 1939; SDC 1939 & Supp 1960, § 32.1212; SDCL § 16-19-15; Supreme Court Rule 78-1, Rule XX (d); SL 2016, ch 246 (Supreme Court Rule 16-26), eff. July 1, 2016.
16-19-41. Reference for investigation and report in proceeding initiated by Supreme Court.
If the investigation of an attorney's conduct is initiated by the Supreme Court the matter shall be referred to the board for an investigation and report as provided in this chapter.
Source: SL 1911, ch 85, § 1; RC 1919, § 5274; Supreme Court Rule 21, 1939; SDC 1939 & Supp 1960, § 32.1213; SDCL § 16-19-6; Supreme Court Rule 78-1, Rule XX (e); SL 2016, ch 246 (Supreme Court Rule 16-27), eff. July 1, 2016.
16-19-42. Complaint and reference for investigation and report in proceeding initiated by attorney general.
If the investigation of an attorney's conduct is initiated by the attorney general, the attorney general shall file a written complaint with the Supreme Court. The Supreme Court shall refer the matter to the board for an investigation and report pursuant to §§ 16-19-45 to 16-19-64, inclusive.
Source: RC 1919, § 5274; Supreme Court Rule 22, 1939; SDC 1939 & Supp 1960, § 32.1214; SDCL § 16-19-7; Supreme Court Rule 78-1, Rule XX (f); SL 2016, ch 246 (Supreme Court Rule 16-28), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-43. Investigation or reference for investigation and report in proceeding initiated by the board.
If the investigation of an attorney's conduct is initiated by the board, it may proceed to conduct an investigation pursuant to §§ 16-19-50 to 16-19-64, inclusive.
Source: Supreme Court Rule 23, 1939; SDC 1939 & Supp 1960, § 32.1215; SDCL § 16-19-8; Supreme Court Rule 78-1, Rule XX(g); SL 2016, ch 246 (Supreme Court Rule 16-29), eff. July 1, 2016.
16-19-44. Individual complaint filed with board or Supreme Court--Reference for investigation and report.
(A) An individual may initiate an investigation of an attorney's conduct by filing a written and signed complaint with the board secretary in such form as the board may prescribe. The complaint must allege facts. Conclusions, opinions, and suppositions shall not be considered.
(1) Board counsel or an attorney board member shall dismiss complaints outside the board's jurisdiction, frivolous complaints, and complaints that fail to state a claim upon which relief could be granted utilizing the same standard of review as would be used by a court reviewing a matter under subdivision 15-6-12(b)(5).
(2) Copies of such dismissals shall be provided to the board and the complainant. A complainant dissatisfied with such a dismissal may, within ten days of such dismissal, request in writing a review by the board. The board shall review the complainant's written request at its next regular or special meeting.
(3) The board shall proceed on all other complaints in accordance with §§ 16-19-50 to 16-19-64, inclusive.
(B) In the alternative, an individual may initiate an investigation of an attorney's conduct by filing a written complaint with the clerk of the Supreme Court. A complaint of attorney misconduct made directly to the Supreme Court shall comply with the following requirements:
(1) The complaint shall be signed and sworn to by the complainant.
(2) The complaint shall fully state all the facts relied upon by the complainant and shall identify all sources of the factual information. Conclusions, opinions, and suppositions of the complainant shall not be considered.
(3) If the alleged misconduct arose in a criminal case, the complaint shall state the county, court, and file number of the case file, whether there was a conviction, and the status of all appellate review, including pending habeas corpus or other post-conviction relief. Copies of any final decision from appellate or habeas corpus review, post-conviction proceedings, or if pending, the petition, shall be attached.
(4) The complaint shall state whether complainant has previously filed a complaint with the board alleging similar misconduct by the attorney. A copy of any letter of disposition by the board shall be attached.
(C) If the complaint fails to comply with any of the requirements of subsection (B), the clerk of the Supreme Court shall forward the complaint to the board secretary and the complaint shall be treated as if it had been initiated with the board pursuant to subsection 16-19-44(A).
(D) In the event that all requirements of this rule have been met, the Supreme Court shall proceed as follows:
(1) If the Supreme Court shall determine the alleged facts raise an issue of noncompliance with the Rules of Professional Conduct, the Supreme Court shall refer the matter to either the board or the attorney general for an investigation and report pursuant to §§ 16-19-45 to 16-19-64, inclusive.
(2) Complaints that are frivolous, unfounded in fact, or fail to raise an issue of noncompliance with applicable Rules of Professional Conduct shall be dismissed by the Supreme Court.
(3) Allegations of ineffective assistance of counsel or other attorney conduct which has been raised on appeal or habeas is deemed to be res judicata to the extent addressed by the reviewing court. The complaint process is neither a substitute for nor a precursor to a habeas corpus or post-conviction petition, and complaints alleging misconduct that would appropriately be alleged in a habeas corpus or post-conviction petition shall be deemed premature and dismissed by the Supreme Court.
(4) If the Supreme Court determines the board has previously investigated the complaint, the Supreme Court may, in its discretion, order the board to file a report with the Court on the nature and results of the board's investigation. Upon receipt of the report, the Supreme Court may determine whether the complaint presents new or additional facts which warrant further investigation. If the Supreme Court determines it is warranted, it may order further investigation or if not warranted, may dismiss the complaint.
Source: SDC 1939 & Supp 1960, § 32.1216; SDCL § 16-19-9; Supreme Court Rule 78-1, Rule XX (h); SL 1994, ch 409; Supreme Court Rule 98-30; SL 2016, ch 246 (Supreme Court Rule 16-30), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-45. Investigation by board on reference--Report and recommendation filed with Supreme Court.
When an investigation of an attorney's conduct has been referred to the board for investigation, the board shall proceed to make a thorough investigation as provided in this chapter and file a report and recommendation with the Supreme Court.
Source: SL 1911, ch 85, § 3; SL 1917, ch 139; RC 1919, § 5275; Supreme Court Rule 25, 1939; SDC 1939 & Supp 1960, § 32.1217; SDCL § 16-19-12; Supreme Court Rule 78-1, Rule XX(i); SL 2016, ch 246 (Supreme Court Rule 16-31), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-46. Proceedings not to be abated for failure to prosecute or settlement.
Failure of a complainant to sign a complaint or to prosecute a charge, or the settlement or compromise between the complainant and the attorney, shall not justify abatement of the processing of any complaint.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 2; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule VII; SL 2016, ch 246 (Supreme Court Rule 16-32), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-47. Processing not to be deferred because of similarity to other pending litigation.
Processing of complaints shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation, unless authorized by the board in its discretion.
Source: Supreme Court Rule 78-1, Rule VIII.
16-19-48. Transfer to medical inactive status for a medical condition.
If, during the course of a disciplinary investigation or proceeding, the attorney claims to be unable to assist in the attorney's defense to a disciplinary complaint because of a medical condition, the Supreme Court shall enter an order immediately transferring the attorney to medical inactive status until a determination is made of the attorney's ability to comply with the Rules of Professional Conduct and § 16-19-31. The determination shall be made in a proceeding instituted in accordance with the provisions of § 16-19-89. An attorney transferred to medical inactive status shall not practice law. An attorney transferred to medical inactive status shall not act as a legal assistant except as provided by §§ 16-18-34.4 to 16-18-34.7, inclusive. The Supreme Court shall enter such orders as are necessary to notify the attorney's clients of the attorney's change in status.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (c); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (c); Supreme Court Rule 97-29; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-49. Resumption of disciplinary proceedings when attorney no longer on medical inactive status.
If the Supreme Court determines that an attorney described by § 16-19-48 is able to assist in the attorney's defense to a disciplinary complaint, it shall take such action as it deems necessary including a direction for the resumption of the disciplinary proceeding against the attorney.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (c); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (c); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-50. Accused attorney to be given opportunity to state position.
Except in matters dismissed in accordance with paragraph 16-19-44(A)(1), no disposition shall be undertaken by the board or recommendation made by the attorney general until the attorney shall have been afforded a reasonable opportunity to state the attorney's position with respect to the allegations.
Source: Supreme Court Rule 78-1, Rule V (b); SL 2016, ch 246 (Supreme Court Rule 16-33), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-51. Procedure required in investigations by board or attorney general.
Investigations by the board or by the attorney general shall be conducted as provided by §§ 16-19-52 to 16-19-62, inclusive.
Source: Supreme Court Rule 78-1, Rule V (a); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-52. Notice to attorney of complaint and allegations.
In an investigation by the board or by the Attorney General, notification shall be given to the attorney that a complaint has been made and the nature of the allegations of misconduct.
Source: Supreme Court Rule 78-1, Rule V (a) (1); SL 2016, ch 246 (Supreme Court Rule 16-34), eff. July 1, 2016.
16-19-53. Methods of investigation to be used--Informal conference.
An investigation by the board or by the attorney general may entail inquiries by mail, consultation with the attorney, taking sworn statements or depositions, and investigation by the board's counsel or the attorney general's staff.
Source: Supreme Court Rule 78-1, Rule V (a) (2); SL 2016, ch 246 (Supreme Court Rule 16-35), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-54. Attorney's duty to respond to board.
Every attorney shall promptly and appropriately respond to any complaint, letter, or inquiry provided by any member of the board. In the event of failure to respond an attorney is subject to private reprimand by the board, or, after hearing on recommendation of the board, to discipline by the Supreme Court. An attorney must appear at any hearing unless excused by the board or the Supreme Court.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 10; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XVII; SL 2016, ch 246 (Supreme Court Rule 16-36), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-55. Subpoena power of board and attorney general--Disobedience as contempt.
A member of the board, its counsel or the attorney general may issue a subpoena requiring any witness to attend at any place within the state and requiring such witness to produce pertinent books, papers, and documents, including client files and records of client funds, and may administer oaths and take testimony in regard to such matters. The willful failure of any person to respond to a subpoena or the willful refusal of any person to testify, is a contempt against the Supreme Court and may be punished accordingly.
Source: Supreme Court Rule 78-1, Rule IX; SL 1998, ch 325; SL 2016, ch 246 (Supreme Court Rule 16-37), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-58. Certified judgment of conviction as evidence against attorney.
A certified judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding based upon the conviction.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 5 (c); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule X (c); SL 2016, ch 246 (Supreme Court Rule 16-39), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-59. Dismissal of complaint on finding not meritorious.
If the board determines after an investigation that the complaint is not meritorious, it shall dismiss the complaint and notify the complainant, the attorney, and such other persons as the board may deem appropriate. If the attorney general determines after an investigation that the complaint is not meritorious, the attorney general shall report such findings to the Supreme Court and recommend dismissal.
Source: Supreme Court Rule 78-1, Rule V (a) (3); SL 2016, ch 246 (Supreme Court Rule 16-40), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-60. Conditions imposed on attorney on finding of meritorious complaint--Dismissal on compliance.
If it is determined after an investigation by the board that the complaint is meritorious, but that formal disciplinary proceedings are not warranted, the board and the attorney may agree in writing to hold the proceedings in abeyance for an appropriate period, provided the attorney complies with specified reasonable conditions throughout the period. If it is determined that a medical condition as defined in subdivision 16-19-29(1) is relevant to such complaint, the specified reasonable conditions shall include board access to the attorney's healthcare and medical records relevant to the medical condition. Upon satisfactory compliance, the board may thereafter dismiss the proceedings and notify the complainant and such other persons as the board deems appropriate. If, after an investigation, the attorney general finds such action warranted, the attorney general shall report the attorney general's findings to the Supreme Court and recommend that such action be taken by the board.
Source: Supreme Court Rule 78-1, Rule V (a) (4); SL 2016, ch 246 (Supreme Court Rule 16-41), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-61. Notice to attorney of report and proposal for private reprimand.
If it is determined after an investigation and hearing that the complaint is meritorious and a private reprimand is warranted, a written report of the findings and proposed action shall be prepared and sent by certified mail to the attorney by the board.
Source: Supreme Court Rule 78-1, Rule V (a) (5); SL 1987, ch 29, § 24; SL 1995, ch 301 (Supreme Court Rule 94-8); SL 2016, ch 246 (Supreme Court Rule 16-42), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-62. Response by attorney to proposal for private reprimand--Report and findings by board.
The attorney shall have twenty days in which to agree or object to the findings and proposed action and demand that formal proceedings be initiated in lieu of a private reprimand. Silence shall be deemed to be an agreement with the findings and proposed action. After twenty days or upon the attorney's agreement, the board shall report its findings to the Supreme Court. Upon filing, the findings constitute a private reprimand.
Source: Supreme Court Rule 78-1, Rule V (a) (6); SL 1995, ch 302 (Supreme Court Rule 94-9); SL 2016, ch 246 (Supreme Court Rule 16-43), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-64. Provisions governing formal disciplinary proceedings.
Formal disciplinary proceedings shall be conducted pursuant to §§ 16-19-67 to 16-19-70.4, inclusive.
Source: Supreme Court Rule 78-1, Rule V (a) (8).
16-19-65. Consent by attorney to disbarment--Contents of affidavit.
An attorney who is the subject of an investigation into or a pending proceeding involving allegations of misconduct, may consent to disbarment, but only by delivering to the board an affidavit to be prepared by the board in the following form:
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
In Re: )
__________ ) RESIGNATION
(Name) )
)
State of __________ ) ss
)
County of __________ )
I, __________, being duly sworn on oath, depose and say that my business address is __________ (Building No. and Name, if any, or Box No.), __________ (Street address, if any), __________ (City), __________ (State), ____ (Zip Code); and that my residence address is __________ (No. Street), __________ (City), __________ (State), __________ (Zip Code). I hereby tender my resignation from membership in the State Bar of South Dakota and request and consent to my removal from the roster of those admitted to practice before the courts of this state and from membership in the State Bar.
I am aware that there is pending against me a formal complaint concerning alleged misconduct and/or that complaints, allegations, or instances of alleged misconduct by me are under investigation by the State Bar Disciplinary Board and that such complaints, allegations, and/or instances include:
(Brief description of alleged misconduct, including designation of provisions of the South Dakota Rules of Professional Conduct and statutes, if any, violated. Also, incorporate by reference of any formal complaint in a pending disciplinary proceeding.)
I do not desire to contest or defend against the above-described complaints, allegations, or instances of alleged misconduct. I am aware of the rules of the Supreme Court and of the bylaws and rules of procedure of the State Bar of South Dakota with respect to admission, discipline, resignation, and reinstatement of members of the State Bar, including SDCL 16-19-80. I understand that I shall not be permitted to practice law or act as a legal assistant within the State of South Dakota except as provided by §§ 16-18-34.4 to 16-18-34.7, inclusive. I understand that any future application by me for reinstatement will be treated as an application by one who has been disbarred for misconduct, and that, on such application, I shall not be entitled to a reconsideration or reexamination of the facts, complaints, allegations, or instances of alleged misconduct upon which this resignation is predicated. I am aware that the Supreme Court may impose judgment for costs pursuant to SDCL 16-19-70.1.
Dated at __________, this ____ day of __________, 20 ____.
__________ (Signature of Attorney)
Subscribed and sworn to before me this ____ day of __________, 20 ____.
__________ Notary Public
My Commission Expires: __________
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 7; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XI (a); SL 1991, ch 431 (Supreme Court Rule 90-8); Supreme Court Rule 97-30; SL 2016, ch 246 (Supreme Court Rule 16-45), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-66. Disbarment by consent--Public disclosure of order.
Upon receipt of an affidavit required by § 16-19-65, the board shall file it with the Supreme Court, and the Court shall enter an order disbarring the attorney on consent. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of § 16-19-65 shall not be publicly disclosed or made available for use in any other proceeding except upon order of the Supreme Court. The clerk of the Supreme Court shall redact the portions of the affidavit which may identify the complainant or other persons whose privacy interests have not been waived or otherwise made public before public disclosure.
Source: Supreme Court Rule 78-1, Rule XI (b), (c); Supreme Court Rule 97-31; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-67. Findings of fact, conclusions of law, and recommendation of investigating agency shall constitute a formal accusation.
Formal disciplinary proceedings shall be conducted as follows:
(1) After investigation as provided in this chapter, the investigating agency may file with the Supreme Court findings of fact, conclusions of law or conclusions pertaining to violations of applicable Rules of Professional Conduct, and a recommendation for formal discipline. Such filing constitutes a formal accusation against the attorney.
(2) A copy of the formal accusation shall be served upon the attorney by certified mail. Unless otherwise directed by the Supreme Court, the investigating agency shall continue to prosecute the formal proceedings. If the recommendation is for suspension or disbarment, it shall also include a finding as to the qualifications of the attorney to act as a legal assistant and a recommendation as to the restrictions or conditions of employment and supervision if the accused is allowed to act as a legal assistant under §§ 16-18-34.4 to 16-18-34.7, inclusive.
(3) The attorney shall answer the formal accusation within thirty days and admit or deny the allegations therein. If the attorney admits the allegations or fails to answer, the Supreme Court may proceed to render judgment.
(4) If the attorney denies the allegations, the matter shall be tried by the Supreme Court, or the Court may refer the matter for the taking of testimony and the making of findings and recommendations.
(5) A reference may be to any circuit court judge or to a referee appointed by the Supreme Court in the same manner as provided for reference of cases in the circuit court so far as applicable.
(6) The reference shall include the files and records of the board's investigation of the attorney, including the transcript of any hearing conducted by the board.
(7) If the referee recommends suspension or disbarment, the referee shall also make a finding as to the qualifications of the attorney to act as a legal assistant and a recommendation as to restrictions or conditions or employment and supervision if the attorney is allowed to act as a legal assistant under §§ 16-18-34.4 to 16-18-34.7, inclusive.
Source: SDC 1939 & Supp 1960, § 32.1218; SDCL § 16-19-15; Supreme Court Rule 78-1, Rule XX(k); SL 1995, ch 304 (Supreme Court Rule 94-11); Supreme Court Rule 97-32; SL 2016, ch 246 (Supreme Court Rule 16-46), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-68.1. Attorney to appear before Supreme Court.
At any hearing before the Supreme Court, the attorney shall appear in person unless the attorney's presence is excused by the Court.
Source: SL 2006, ch 336 (Supreme Court Rule 06-62), eff. July 1, 2006; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-70.1. Costs and expenses of disciplinary proceedings.
(a) State Bar of South Dakota. Costs and expenses incurred by the board in the investigation or prosecution of any disciplinary or reinstatement proceeding under this chapter shall be paid by the State Bar, provided, however, that the expenses of a disciplinary proceeding may, in the discretion of the Supreme Court, be assessed against the attorney who is the subject of such proceeding.
(b) Attorney General. The attorney general shall pay the costs and expenses the attorney general's office incurs in the investigation or prosecution of any disciplinary proceeding under this chapter.
(c) Unified Judicial System. The Unified Judicial System shall pay the costs and expenses incurred by the referee, the court reporter, and witnesses when a disciplinary action is referred to a referee under § 16-19-67.
Source: SL 1990, ch 439 (Supreme Court Rule 89-21); SL 2016, ch 246 (Supreme Court Rule 16-48), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-70.2. Allowable costs and expenses.
Expenses incurred by the board, the attorney general, or the Unified Judicial System that were not covered by advance deposit and that have not been previously paid by the attorney who is the subject of a disciplinary or reinstatement proceeding, may be assessed by the Supreme Court against said attorney in favor of the State of South Dakota and/or the State Bar of South Dakota according to their respective interests. The assessments may cover the costs of a referee's mileage, meals, and rooms; a court reporter's mileage, meals, rooms, and transcript preparation; disciplinary counsel's mileage, meals, rooms, telephone charges, copying fees, and hourly charges for investigation and preparation for hearings, trials, and appeals, and appearances at hearings, trials, and appeals; witnesses' fees and mileage; and the board members' mileage, meals, and rooms, provided that proof of such costs shall be made as hereafter provided in § 16-19-70.3.
Source: SL 1990, ch 440 (Supreme Court Rule 89-22); SL 2016, ch 246 (Supreme Court Rule 16-49), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-70.3. Proof of costs and expenses required.
An assessment for costs and expenses against an attorney requires the following proof:
(a) State Bar of South Dakota. A sworn statement of unreimbursed allowable costs filed with the clerk of the Supreme Court by the State Bar prior to issuance of a final judgment.
(b) Attorney General and Unified Judicial System. Copies of approved expense vouchers for reimbursement of allowable costs and expenses associated with the disciplinary proceeding filed with the clerk of the Supreme Court by the attorney general or the finance office of the Unified Judicial System prior to issuance of a final judgment.
Source: SL 1990, ch 441 (Supreme Court Rule 89-23); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-70.4. Judgment for costs against attorney.
When judgment is rendered against the attorney or whenever judgment for reinstatement of an attorney is entered, said attorney may, at the discretion of the Supreme Court, be directed to make appropriate reimbursement of costs and expenses as provided in §§ 16-19-70.1 and 16-19-70.2.
Source: SL 1990, ch 442 (Supreme Court Rule 89-24); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-71. Advice to Supreme Court of discipline in another jurisdiction--Copy of order filed--Conclusive evidence of misconduct.
All attorneys subjected to professional discipline in another jurisdiction, shall promptly inform the clerk of the Supreme Court and the board of such action. Upon being so informed, the clerk of the Supreme Court shall obtain a certified copy of such disciplinary order and file the same with the Supreme Court. Except as provided by § 16-19-74, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.
Source: Supreme Court Rule 19, 1939; SDC 1939 & Supp 1960, § 32.1211; SDCL § 16-19-4; Supreme Court Rule 78-1, Rule XII (a), (e); SL 2006, ch 337 (Supreme Court Rule 06-63), eff. July 1, 2006; SL 2016, ch 246 (Supreme Court Rule 16-50), eff. July 1, 2016.
16-19-72. Notice to attorney of disciplinary order from other jurisdiction.
Upon receipt of a certified copy of an order demonstrating that an attorney admitted to practice in this state has been disciplined in another jurisdiction, the Supreme Court shall issue a notice directed to the attorney and a copy to the board containing:
(1) A copy of the order from the other jurisdiction; and
(2) An order directing that the attorney inform the Supreme Court, within thirty days from service of the notice, of any claim by the attorney predicated upon the grounds set forth in § 16-19-74 that the imposition of the identical discipline in this state would be unwarranted and the reasons therefor.
(3) Any claim by the attorney that imposition of identical discipline is unwarranted may be referred to the board for an investigation and report to the Supreme Court.
(4) In the event discipline imposed in another jurisdiction has been stayed, any reciprocal discipline in this state shall be deferred until such stay expires.
Source: Supreme Court Rule 19, 1939; SDC 1939 & Supp 1960, § 32.1211; SDCL § 16-19-4; Supreme Court Rule 78-1, Rule XII (b); SL 2006, ch 338 (Supreme Court Rule 06-64), eff. July 1, 2006; SL 2016, ch 246 (Supreme Court Rule 16-51), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-74. Imposition of identical reciprocal discipline--Grounds for other disposition.
The Supreme Court shall impose the identical discipline imposed in another jurisdiction unless the board or the attorney demonstrates and the Supreme Court finds that on the record upon which the discipline is predicated, it clearly appears:
(1) That the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) That there was such an infirmity of proof establishing the misconduct that the Supreme Court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) That the misconduct established warrants substantially different discipline in this state; or
(4) That the attorney's conduct subject of discipline in another jurisdiction has been or is currently under investigation by the board.
Where the Supreme Court determines that any of said elements exist, the Supreme Court shall enter such other order as it deems appropriate.
Source: Supreme Court Rule 19, 1939; SDC 1939 & Supp 1960, § 32.1211; SDCL § 16-19-4; Supreme Court Rule 78-1, Rule XII (d); SL 2006, ch 339 (Supreme Court Rule 06-65), eff. July 1, 2006; SL 2016, ch 246 (Supreme Court Rule 16-53), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-75. Newspaper publication of suspension or disbarment.
The clerk of the Supreme Court shall cause a notice of every suspension or disbarment to be published in a newspaper of general circulation in the judicial circuit or circuits in which the disciplined attorney maintained an office for the practice of law.
Source: Supreme Court Rule 78-1, Rule XIII (e); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-76. Notice to courts of suspension or disbarment--Order for protection of clients.
The clerk of the Supreme Court shall promptly transmit a certified copy of every order of suspension or disbarment to all judges in this state, and the presiding judge of each judicial circuit shall make such further order deemed necessary to fully protect the rights of the clients of the suspended or disbarred attorney.
Source: Supreme Court Rule 78-1, Rule XIII (f); SL 2016, ch 246 (Supreme Court Rule 16-54), eff. July 1, 2016.
16-19-77. Effective date of suspension or disbarment--New matters not to be accepted--Winding up of pending business.
Unless the Supreme Court shall otherwise order, orders imposing suspension or disbarment shall be effective thirty days after entry. The disbarred or suspended attorney, after entry of the order, shall not accept any new retainer or engage as an attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date the attorney may wind up and complete on behalf of any client, all matters which were pending on the entry date.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 8 (c); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (c); SL 2016, ch 246 (Supreme Court Rule 16-55), eff. July 1, 2016.
16-19-78. Notice to office clients of disbarment or suspension.
A disbarred or suspended attorney shall promptly notify, or cause to be notified, by certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the attorney's disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice shall advise such clients to seek legal advice of the client's own choice elsewhere.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 8 (a); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (a); SL 2016, ch 246 (Supreme Court Rule 16-56), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-79. Notice to opposing counsel and clients involved in litigation or administrative proceedings--Leave of court or agency to withdraw.
A disbarred or suspended attorney shall promptly notify, or cause to be notified, by certified mail, return receipt requested, each client who is involved in pending litigation or administrative proceedings, and each attorney for an adverse party in such cases, of the disbarment or suspension and the attorney's consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice to be given to the client shall advise the client of the importance of prompt substitution of another attorney of the client's own choice.
In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, the disbarred or suspended attorney shall move in the court or agency in which the proceeding is pending for leave to withdraw.
The notice to be given to the attorney or attorneys for an adverse party shall state the mailing address and place of residence of the client of the disbarred or suspended attorney.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 8 (b); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (b); SL 2016, ch 246 (Supreme Court Rule 16-57), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-80. Affidavit of compliance filed by disbarred or suspended attorney.
Within ten days after the effective date of disbarment or suspension the disbarred or suspended attorney shall file with the Supreme Court an affidavit showing:
(1) That the attorney has fully complied with the provisions of the order and with this chapter; and
(2) That the attorney has fully complied with all requirements of other state, federal, and administrative jurisdictions to which the attorney is admitted to practice.
(3) Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications to the attorney may thereafter be directed.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 8 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (d); SL 2016, ch 246 (Supreme Court Rule 16-58), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-81. Record of compliance maintained by disbarred or suspended attorney--Condition precedent to reinstatement.
A disbarred or suspended attorney shall keep and maintain records of the various steps taken under this chapter so that, in any subsequent proceeding, proof of compliance with this chapter and with the disbarment or suspension order will be available. Proof of compliance with this chapter is a condition precedent to any petition for reinstatement.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 8 (e); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (g); SL 2016, ch 246 (Supreme Court Rule 16-59), eff. July 1, 2016.
16-19-82. Noncompliance by attorney as contempt.
The failure of an attorney, including an attorney who has been disbarred or suspended, to comply fully and promptly with any of the provisions of this chapter or with any order or judgment entered in disciplinary proceedings, shall constitute contempt and shall be punishable as such by the Supreme Court.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 11; SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XIII (h); SL 2016, ch 246 (Supreme Court Rule 16-60), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-83. Reinstatement order required before resumption of practice--Time of application--Waiting period after denial of reinstatement.
No attorney suspended for more than three months or disbarred may resume practice until reinstated by order of the Supreme Court. An attorney who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment. No petition for reinstatement under § 16-19-87 may be filed within one year following denial of a petition for reinstatement filed by or on behalf of the same person. An attorney suspended or disbarred shall not be permitted to act as a legal assistant except as provided by §§ 16-18-34.4 to 16-18-34.7, inclusive.
Source: Supreme Court Rule 78-1, Rule XIV (a), (b), (g); Supreme Court Rule 97-34; SL 2016, ch 246 (Supreme Court Rule 16-61), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-84. Petition and hearing on reinstatement--Advance cost deposit--Burden of proof.
A petition for reinstatement by a disbarred or suspended attorney under § 16-19-87 may be filed with the board secretary. The petition shall be accompanied by a deposit in an amount to be set by the board to cover prior proceedings and anticipated expenses of the reinstatement proceeding. Upon receipt of the petition and the deposit, the board shall promptly schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that the petitioner has the moral qualifications, competency, and learning in law required for admission to practice law in this state and that petitioner's resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar, the administration of justice, or subversive of the public interest.
Source: Supreme Court Rule 78-1, Rule XIV (c), (e); Supreme Court Rule 89-19; SL 2016, ch 246 (Supreme Court Rule 16-62), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-85. Participation by board counsel in hearing on reinstatement--Appearance by and examination of petitioner.
In all proceedings before the board upon a petition for reinstatement, cross-examination of the witnesses and of the petitioner, and the submission of evidence, if any, in opposition to the petition shall be conducted by the board's counsel. Board members may inquire of the witnesses and of the petitioner into all matters required by § 16-19-84 for petitioner's readmission. The petitioner shall be present in person at the hearing and shall submit to such examination as the board deems proper.
Source: Supreme Court Rule 78-1, Rule XIV (c), (d); SL 1998, ch 327; SL 2016, ch 246 (Supreme Court Rule 16-63), eff. July 1, 2016.
16-19-86. Board findings and recommendation on reinstatement--Placement on Supreme Court calendar.
After conducting a hearing on reinstatement, the board shall promptly file a report with the Supreme Court containing its findings and recommendations, together with the record. The Supreme Court shall then place the petition on the calendar for argument.
Source: Supreme Court Rule 78-1, Rule XIV (c); SL 2006, ch 340 (Supreme Court Rule 06-66), eff. July 1, 2006; SL 2016, ch 246 (Supreme Court Rule 16-64), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-87. Dismissal of petition or order of reinstatement--Conditions imposed on petitioner.
If the Supreme Court finds the petitioner for reinstatement unfit to resume the practice of law, the petition shall be dismissed. If the Supreme Court finds the petitioner fit to resume the practice of law, the Supreme Court shall enter a judgment of reinstatement. The judgment may make reinstatement conditional upon:
(1) The payment of all or part of the expenses of the reinstatement and all prior proceedings; and
(2) The making of partial or complete restitution to parties harmed by the misconduct which led to petitioner's suspension or disbarment; and
(3) The furnishing of proof of competency as may be required in the discretion of the Supreme Court, which proof may include certification by the bar examiners of petitioner's successful completion of examinations for admission to practice after the suspension or disbarment
Source: Supreme Court Rule 78-1, Rule XIV (f); SL 1990, ch 438 (Supreme Court Rule 89-20); SL 2016, ch 246 (Supreme Court Rule 16-65), eff. July 1, 2016.
16-19-88. Transfer to medical inactive status of attorney subject to certain judicial determinations or orders.
Where there is a determination by a court in any state that an attorney is a protected person as that term is defined in § 29A-5-102 or is the subject of a court order directing commitment to or inpatient treatment in a healthcare or treatment facility for a medical condition, the Supreme Court, upon proof of that fact, shall enter an order transferring such attorney to medical inactive status effective immediately and until the further order of the Court. A copy of such order shall be served upon such attorney, the attorney's guardian, and/or the director of the institution to which the attorney has been committed in such manner as the Court may direct. The Supreme Court shall enter such orders as are necessary to notify the attorney's clients of the attorney's change in status.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (a); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (a); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-89. Petition by board for determination of attorney's competency to practice law--Directions for investigation.
The disciplinary board may petition the Supreme Court to suspend an attorney from the practice of law pending final hearing and disposition by the Supreme Court, upon good cause shown that the attorney's ability to competently practice law is adversely affected by a medical condition as defined by subdivision 16-19-29(1). The Court may take or direct such action as it deems necessary to determine whether the medical condition adversely affects the attorney's ability to competently practice law, including the examination of the attorney by such qualified medical experts as the Court shall designate.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (b); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (b); SL 1995, ch 305 (Supreme Court Rule 94-12); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-90. Notice to attorney of medical inactive status proceedings--Representation of attorney.
The Supreme Court shall provide for such notice to the attorney of proceedings in the matter as it deems necessary and may appoint an attorney to represent the attorney if the attorney is without adequate representation.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (b); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (b); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-91. Burden of proof in medical inactive status and reinstatement proceedings.
In a proceeding seeking a transfer of an attorney to medical inactive status under § 16-19-92, the burden of proof shall rest with the board. In a proceeding seeking an order of reinstatement to active status under § 16-19-98, the burden of proof shall rest with the attorney. In either case, the burden of proof shall be by clear and convincing evidence.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (e); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (e); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-92. Order transferring attorney to medical inactive status--Pending disciplinary proceedings.
If, upon due consideration of the matter, the Supreme Court concludes that the attorney is not competent to continue to practice law because of a medical condition as defined by subdivision 16-19-29(1), it shall enter an order transferring the attorney to medical inactive status until further order of the Court. Any pending disciplinary proceeding against the attorney shall be held in abeyance. An attorney transferred to medical inactive status shall not be permitted to practice law or act as a legal assistant except as provided by §§ 16-18-34.4 to 16-18-34.7, inclusive. The Supreme Court shall enter such orders as are necessary to notify the attorney's clients of the attorney's change in status.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (b); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (b); Supreme Court Rule 97-35; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-93. Reinstatement order required before attorney on medical inactive status resumes practice.
No attorney transferred to medical inactive status under the provisions of § 16-19-88 or 16-19-92 may resume active status until reinstated by order of the Supreme Court.
Source: Supreme Court Rule 78-1, Rule XV (d); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-94. Petition for reinstatement by attorney on medical inactive status.
Any attorney transferred to medical inactive status under the provisions of § 16-19-88 or 16-19-92 shall be entitled to petition for reinstatement to active status once a year or at such shorter intervals as the Supreme Court may direct in the order transferring the attorney to medical inactive status. An attorney who has been placed on medical inactive status may not apply for reinstatement until any pending disciplinary investigation or proceeding has been concluded.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (d); Supreme Court Rule 97-36; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-95. Reinstatement of attorney to active status.
Where an attorney has been transferred to medical inactive status by an order in accordance with the provisions of § 16-19-88 and thereafter, the attorney has shown that the attorney's ability to competently practice law is no longer adversely affected by the medical condition giving rise to the judicial determination or order, the Supreme Court may direct reinstatement to active status upon such terms as are deemed necessary.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (d); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-96. Waiver of physician-patient privilege by petition for reinstatement of attorney--Disclosure of names by petitioner.
The filing of a petition for reinstatement to active status by an attorney transferred to medical inactive status because of a medical condition that adversely affected the attorney's competency to practice law shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment the attorney received that is relevant to that medical condition during the period of medical inactive status. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician, and hospital or other institution by whom or in which the attorney had been examined or treated for the medical condition since the attorney's transfer to medical inactive status and the attorney shall furnish to the Supreme Court written consent to each to divulge such information and records as requested by court-appointed medical experts.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (f); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (f); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-97. Examination of petitioner for reinstatement--Expense of examination--Additional proof of competence to practice law.
Upon application for reinstatement by an attorney on medical inactive status, the Supreme Court may take or direct such action as it deems necessary to determine whether the attorney's medical condition no longer affects the attorney's ability to competently practice law, including an examination of the attorney by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination be paid by the attorney. The Supreme Court may require that the attorney establish further proof of competence and learning in law, which proof may include providing certification by the board of bar examiners that the attorney successfully completed all or any portion of the South Dakota bar examination after transfer to medical inactive status.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (d); SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-98. Order of reinstatement to active status from medical inactive status.
A petition for reinstatement of an attorney on medical inactive status shall be granted by the Supreme Court upon a showing by clear and convincing evidence that the attorney is competent to resume the practice of law. An attorney who has been placed on medical inactive status may not be reinstated until any pending disciplinary investigation or proceeding has been concluded.
Source: Sup. Ct. Disc. Rules Aug. 28, 1974, § 6 (d); SDCL Supp, 16-19 Appx.; Supreme Court Rule 78-1, Rule XV (d); Supreme Court Rule 97-37; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-99. Attorney discipline--Proceedings confidential--Violation as contempt--Exceptions.
All proceedings involving allegations of misconduct by an attorney or the attorney's competency to practice law because of a medical condition as defined by § 16-19-48 shall be kept confidential until:
(a) A formal complaint asking for disciplinary action is filed with the Supreme Court by the board or the attorney general, or
(b) Upon the request of the attorney to have the matter be public, or
(c) If the investigation into the attorney's alleged misconduct is predicated upon a conviction for a crime reportable under § 16-19-37.
If the disciplinary proceeding involves alleged misconduct due to an attorney's medical condition as defined by subdivision 16-19-29(1) and the Supreme Court enters an order transferring the attorney to medical inactive status pursuant to § 16-19-88 or 16-19-92, only the order shall be public. The record shall remain confidential absent a written waiver by the attorney or an order of the Supreme Court. All participants in the proceeding shall conduct themselves so as to maintain the confidentiality of the proceeding. Any violation by any person of the requirement of confidentiality shall constitute contempt and shall be punishable as such by the Supreme Court. An attorney on medical inactive status shall be permitted to relate necessary information from the proceedings to the attorney's treating healthcare or medical practitioners for the purpose of restoring the attorney to active status. This section shall not be construed to deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, the board of bar examiners, or to other jurisdictions investigating qualifications for admission to practice; or to an agency acting pursuant to order of the Chief Judge of the United States District Court for South Dakota concerning reciprocal discipline; or to law enforcement agencies investigating qualifications for government employment. In addition, the clerk of the Supreme Court shall transmit notice of all public discipline imposed by the Supreme Court on an attorney or the transfer to medical inactive status of an attorney to the national discipline data bank maintained by the American Bar Association.
Source: Supreme Court Rule 78-1, Rule XVI; Supreme Court Rule 95-12; SL 2009, ch 283 (Supreme Court Rule 09-04), eff. July 1, 2009; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
16-19-100. Retention of files and records of disbarred, suspended, or reinstated attorney.
The board shall, unless otherwise ordered by the Supreme Court, retain its files and records of any attorney who has been disbarred, suspended, placed on probationary status, placed on medical inactive status pursuant to § 16-19-89 or 16-19-92, publicly censured, or who has been later reinstated after a prior discipline until such time as the attorney dies, at which time the records may be expunged.
Source: SL 1991, ch 432 (Supreme Court Rule 90-9); SL 2016, ch 246 (Supreme Court Rule 16-66), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
Source: SL 2016, ch 246 (Supreme Court Rule 16-67), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.
