Consumer Guide

Selecting a Lawyer


  Selecting a Lawyer  ► previous page


When do I need a Lawyer?

Many people believe they need a lawyer's services only to solve a problem or to get out of a difficult situation. Often, the best time to see a lawyer is not when you are in legal trouble, but before that trouble occurs. Preventive legal work is one of the most valuable services a lawyer can perform. By eliminating potential problems, preventive legal work can save you time, money and needless worry.

Some of the circumstances which may require professional legal assistance are:

  • Buying or selling real estate.
  • Signing a lease or contract with major financial provisions.
  • Marriage, divorce or adoption.
  • When a lawsuit is brought against you, or when you want to bring a lawsuit.
  • If you are arrested or charged with a crime.
  • When starting a business.
  • Planning for the distribution of your property after your death.
  • When you have been injured, either on the job, or in an accident, or as the result of another person's negligence, or because of a defective or unsafe product.
  • When making an appearance, application or appeal to a government agency or board.
  • When planning a living will or durable power of attorney for health care.

How do I select a lawyer?

If you need legal assistance but do not have a lawyer, there are several sources that you may use to help you locate and select a lawyer:

Recommendations from friends, family members and co-workers can be helpful, particularly if the individual you ask for a referral has had the same type of legal question as you have.

Legal Services offices, also called Legal Aid in some areas. These are federally funded programs which offer free legal services, in civil matters only, to individuals who meet federal poverty guidelines. There are headquarters offices in Sioux Falls, Rapid City and Mission, with several branch offices. There is a referral resource listing on page 39 of this booklet.

Lawyer Referral Services located in Pierre will send you a list of lawyers to choose from. You may have an initial consultation for a small or reasonable fee. After that, you decide whether to retain that lawyer for further representation.

You can review the Lawyer Referral list online or may call 1-800-952-2333 toll free for lawyer referral services

Yellow Pages and other advertising is becoming more commonplace among lawyers. Although few South Dakota Lawyers list their specialties, some have begun doing so. If you select a lawyer for a specialty, keep in mind that there is no guarantee by the State Bar or other body that such lawyer has any more knowledge or experience in the area listed than any other lawyer.

Legal directories, such as the Martindale-Hubbell Law Directory, can be found in some public libraries. These contain biographical information on lawyers in each state, and list lawyers by state and city.

The Lawyer-Client Relationship

What should I look for in a lawyer?

Among other things, be concerned about:

  • The lawyer's reputation in the community.
  • The lawyer's experience with your type of legal problem. (Don't hesitate to ask about this on your first visit.)
  • The lawyer's communication skills, shown by a willingness and ability to talk to you in language you can understand and to keep you informed about the progress of your case, responsiveness to your questions and concerns. Let your lawyer know, on the first visit, that these qualities are important to you.
  • The fees that will be charged. (See the Fees section )

What should I expect when I hire a lawyer?

You are hiring a lawyer to work for you, as your advocate. You should expect your lawyer to:

  • Confer with you to pinpoint the problem.
  • Research and analyze all available facts and information relating to your problem.
  • Interview those involved.
  • Prepare legal arguments for presentation in court, if litigation becomes necessary.
  • Negotiate a settlement if both sides can reach a fair agreement.
  • Keep you informed about what is going on in your case and answer your questions.
  • Discuss fees with you at your first visit, and come to an agreement about the way in which fees will be paid.
  • Be candid with you about your problem, your prospects for success, the time it will take, and the advisability of accepting any settlement offered.
  • Keep in confidence anything you say.
  • Prepare all necessary legal documents.

What will my lawyer expect from me?

Upon being retained as your legal counsel, your lawyer will expect that you will:

  • Be completely honest about all facts concerning your case, whether favorable to you or not.
  • Be on time for appointments and not take up an excessive amount of time with visits or phone calls relating to minor details or petty matters.
  • Take your lawyer's advice.
  • Understand that no lawyer can guarantee results in a contested matter.
  • Be patient and understanding that legal matters are rarely "open and shut" cases; they require time and research.
  • Call for appointments rather than just dropping in without warning.
  • Pay a reasonable fee for the work performed.

Can I change lawyers?

You may discharge your attorney simply by informing your attorney of your wishes. Giving notice is a matter of courtesy and may be necessary so that if a lawsuit has been filed, the lawyer may ask the court for permission to withdraw.

Even if you discharge your lawyer, you are still obligated to pay for any services which have already been performed on your behalf, and costs which have been incurred.

Why can't I handle my own legal problems?

It is not illegal for you to represent yourself in court, nor to handle your own legal matters. There are also "kits" and "forms" which some people use for such matters as getting a divorce or making a will. South Dakota lawyers and judges advise against these do-it-yourself products because they are not designed to take into consideration individual differences and complications which may arise with any legal matter. Judges and court personnel are not allowed to give you any legal advice as your case progresses. Lawyers are trained to provide professional legal assistance to you, to be aware of all court procedures, filing requirements, deadlines and other details which a non-lawyer could easily overlook. Such products are not updated to reflect changes in the law from year to year.

Legal Fees

How do lawyers set their fees?

Legal fees are determined by a number of factors including the amount of time spent on your problem; the lawyer's ability; experience and reputation; the results obtained; overhead costs such as secretarial and paraprofessional services, investigators and other personnel, library and other research materials; and your ability to pay.

The primary types of fee arrangements are:

Hourly rate, in which the fee is based upon the amount of time required.

Fixed fee, in which a flat fee is charged for a specific routine service, such as an uncontested divorce, a simple bankruptcy or a will.

Contingent fee, in which the lawyer receives a percentage of any amount recovered on the client's behalf, plus any out-of-pocket expenses. If no recovery is made, the client pays only the expenses.

Retainer, in which the client makes a "down payment" and future costs of legal services are billed against that amount. Many lawyers require a retainer in certain types of legal matters.

Complaints Against Lawyers

What if I have a complaint against my lawyer?

South Dakota lawyers are governed by the South Dakota Rules of Professional Conduct. Failure to follow the Rules can result in disciplinary sanctions ranging from a private reprimand to disbarment.

Many disagreements between lawyers and clients are simple misunderstandings or failures to communicate. Often these can be resolved by discussing the problem directly with your lawyer. If this approach fails or is impractical, or if you believe your lawyer has acted improperly or unethically, you may send a written complaint to the Disciplinary Board, The State Bar of South Dakota, 222 East Capitol, Pierre, SD 57501

The Disciplinary Board will send a copy of your complaint to the lawyer and require that he respond within a specified time period. When the response is received, the Board will conduct a further investigation to determine whether the lawyer's conduct has violated the Rules.

Normally, disputes over lawyer's fees are not matters which are properly considered by the Bar's disciplinary system. However, the Rules do provide that fees may not be "clearly excessive" and that attorneys may not engage in conduct which involves fraud or misrepresentation.

The Bar's disciplinary system cannot award money damages nor reimburse clients for losses resulting from a lawyer's misconduct. Any civil remedy you may have against the lawyer is separate from the disciplinary process

The State Bar of South Dakota did establish a Client Security Fund in 1973 to reimburse clients, in whole or in part, who have suffered financial loss as a result of dishonest acts of their lawyer. A number of conditions must be met before any claim will be considered for payment from the fund.