OF THE

STATE OF SOUTH DAKOTA

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Petition for amendment of existing sections of the South Dakota Codified Laws, adoption of a new rule and proposed revisions to South Dakota Rules of Professional Responsibility having been filed with the Court, and the Court having determined that the proposed amendments, adoption of a new rule and proposed revisions to South Dakota Rules of Professional Responsibility should be noticed for hearing, now therefore,

NOTICE IS HEREBY GIVEN THAT ON THURSDAY, AUGUST 28, 2003, 9:00 A.M., C.S.T., at the Capitol Lake Visitor Center, Pierre, South Dakota, the Court will consider the following:

1. The proposed amendment of SDCL 15-26A-26, relating to appellate procedure - money judgment – conditions of bond on appeal.

2. The proposed amendment of SDCL 15-26A-60, relating to appellate procedure - brief of appellant – contents.

3. The proposed amendment of SDCL 15-26A-61, relating to appellate procedure - brief of appellee.

4. The proposed repeal of SDCL 16-12A-3.1 and reenactment at SDCL 16-12B-1.1, relating to number of full-time magistrate judges.

5. The proposed repeal of SDCL 16-12A-4.1 and reenactment at SDCL 16-12B-1.3, relating to term of magistrate judges – removal.

6. The proposed repeal of SDCL 16-21A-7.1 and reenactment at SDCL 16-12c-2.1, relating to certification of clerk magistrate - notice of termination.

7. The proposed repeal of SDCL 16-21A-7.2 and reenactment at SDCL 16-12b-1., relating to certification and information on nominees for magistrate judge – approval by Supreme Court.

8. The Proposed Amendment of SDCL 16-18-2.2, relating to attorney licensing - requirements for participation by law student.

9. The proposed adoption of a new rule relating to civil case filing statements to be designated as SDCL 15-6-5(h).

10. Proposed rules revisions of South Dakota Rules of Professional Responsibility.

The proposed amendments, new rule and proposed rules revision of South Dakota Rules of Professional Responsibility are hereinafter set out. The sections are reproduced in their entirety with strikethroughs denoting proposed deletions and underscoring denoting proposed additions.

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1. The proposed amendment of SDCL 15-26A-26:

If the appeal is from a judgment directing the payment of money, the conditions of the bond required by §15-26A-25 shall be the payment of the judgment or that part of the judgment which is affirmed together with interest thereon from the date of the judgment. The amount of the bond required collectively of all appellants may not exceed twenty-five million dollars regardless of the amount of judgment. However, if an appellee proves by a preponderance of the evidence that an appellant whose bond has been limited is dissipating assets outside the ordinary course of business to avoid payment of a judgment, the Court may require the appellant to execute a bond in an amount up to the amount of the judgment.

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2. The proposed amendment of SDCL 15-26A-60:

15-26A-60. Appellate procedure - Brief of appellant – Contents.

The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1)  A table of contents, with page references.

(2)  A table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(3)  A jurisdictional statement setting forth the date and form of the judgment or order sought to be reviewed, and the date when the notice of appeal was filed. This statement must make it appear, in cases of appeal, that the order sought to be reviewed is appealable.

(4) A concise statement of the legal issue or issues involved, omitting unnecessary detail. Each issue shall be stated as an appellate court would state the broad issue presented. Each issue shall be followed by a concise statement of how the trial court decided it and a list of the most relevant cases, not to exceed four, and the most relevent constitutional and statutory provisions.

(5)  A statement of the case and the facts. A statement of the case shall first be presented identifying the trial court and the trial judge and indicating briefly the nature of the case and its disposition in the trial court. There shall follow a statement of facts relevant to the grounds urged for reversal, modification, or other relief. The facts must be stated fairly, with complete candor, and as concisely as possible. Where it is claimed that a verdict, finding of fact, or other determination is not sustained by the evidence, the statement must set forth the particulars in which the evidence is claimed to be insufficient. Each statement of a material fact shall be accompanied by a reference to the record where such fact appears.

(6)  An argument. The argument shall contain the contentions of the party with respect to the issues presented, the reasons therefor, and the citations to the authorities relied on. Each issue shall be separately presented. Needless repetition shall be avoided.

(7)  A short conclusion stating the precise relief sought.

(8)  An aAppendix. , if any. The Such appendix shall may include the judgment, order or decision in question and, any relevant written findings of fact and conclusions of law and memorandum decision. The appendix may also include any relevant portions of the pleadings and, instructions, findings or opinion, and any other parts of the record to which the parties wish to direct the particular attention of the Court, and items enumerated in §15-26A-65. No appendix shall exceed twenty pages without prior approval of the Supreme Court. The twenty page limit shall not include the pages necessary for the judgment, order or decision in question, or the written findings of fact, conclusions of law and memorandum decision required by this rule. The pages of the appendix shall be separately numbered and the appendix shall contain a table of contents with page references. Sections of the appendix shall be tabbed and salient information highlighted.

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3. The proposed amendment of SDCL 15-26A-61:

15-26A-61. Appellate procedure - Brief of appellee.

The brief of the appellee shall conform to the requirements of §15-26A-60, except that a statement of the issues or of the case and the facts need not be made unless the appellee is dissatisfied with the statement of appellant. If a notice of review is filed, the appellee’s brief shall contain the judgment, order or decision in question and any relevant written findings of fact, conclusions of law and memorandum decision, if different from those included in the appendix to the appellant’s brief.

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4. The Proposed Repeal of SDCL 16-12A-3.1 and reenactment at SDCL 16-12B-1.1:

SDCL 16-12A-3.1. Number of full-time magistrate judges.

The number of full-time magistrate judges in the judicial circuits established by § 16-15-1.2 is fixed as follows:

(1)  First Circuit: One full-time magistrate judge;
(2)  Second Circuit: Four full-time magistrate judges;
(3)  Third Circuit: One full-time magistrate judge;
(4)  Fourth Circuit: One full-time magistrate judge;
(5)  Fifth Circuit: One full-time magistrate judge; and
(6)  Seventh Circuit: Three full-time magistrate judges.

SDCL 16-12B-1.1. Number of full-time magistrate judges.

The number of full-time magistrate judges in the judicial circuits established by § 16-5-1.2 is fixed as follows:

(1)  First Circuit: One full-time magistrate judge;
(2)  Second Circuit: Four full-time magistrate judges;
(3)  Third Circuit: One full-time magistrate judge;
(4)  Fourth Circuit: One full-time magistrate judge;
(5)  Fifth Circuit: One full-time magistrate judge; and
(6)  Sixth Circuit: One full-time magistrate judge; and
(67)  Seventh Circuit: Three full-time magistrate judges.

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5 . The Proposed Repeal of SDCL 16-12A-4.1 and reenactment at SDCL 16-12B-1.3:

SDCL 16-12A-4.1. Term of magistrate judges - Removal .

Persons appointed as full-time magistrate judges shall be appointed for a full term of four years from and after the date of the approval of the appointment by the Supreme Court and shall be subject to removal only upon recommendation of the Judicial Qualifications Commission and the action of the Supreme Court thereon. Persons appointed as part-time magistrate judges  shall be appointed by the presiding judge of the circuit court, subject to the approval of the Supreme Court, and shall serve at the pleasure of the presiding judge. Upon termination of any appointment the presiding judge shall forthwith notify the state court administrator thereof.

SDCL 16-12B-1.3. Term of magistrate judges - Removal.

Persons appointed as full-time magistrate judges shall be appointed for a full term of four years from and after the date of the approval of the appointment by the Supreme Court and shall be subject to removal only upon recommendation of the Judicial Qualifications Commission and the action of the Supreme Court thereon. Persons appointed as part-time magistrate judges shall be appointed by the presiding judge of the circuit court, subject to the approval of the Supreme Court, and shall serve at the pleasure of the presiding judge. Upon termination of any appointment the presiding judge shall forthwith notify the state court administrator thereof.

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6. The Proposed Repeal of SDCL 16-12A-7.1 and reenactment at SDCL 16-12c-2.1:

SDCL 16-12A-7.1. Certification of lay magistrate- Notice of termination.

The presiding judge of each circuit shall immediately following the appointment of a lay magistrate certify to the state

court administrator the name and address of each appointee and principal place or places that the appointee is to function. The state court administrator shall be promptly notified of the termination from office of a lay magistrate .

SDCL 16-12C-2.1. Certification of lay magistrate clerk magistrate- Notice of termination.

The presiding judge of each circuit shall immediately following the appointment of a lay magistrate clerk magistrate certify to the state court administrator the name and address of each appointee and principal place or places that the appointee is to function. The state court administrator shall be promptly notified of the termination from office of a lay magistrate clerk magistrate.

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7. The Proposed Repeal of SDCL 16-12A-7.2 and reenactment at SDCL 16-12B-1.2:

SDCL 16-12A-7.2. Certification and information on nominees for magistrate judge - approval by Supreme Court.

The presiding judge of each circuit shall certify to the state court administrator the name of each law-trained person that he proposes to appoint in his circuit. Prior to the appointment of any magistrate judge the presiding judge shall present to the state court administrator a resume of the applicant's qualifications setting forth the proposed salary offered and clearly defining the geographical area he will serve and his anticipated work load. The state court administrator shall distribute this information to all members of the court.

The Supreme Court may approve or disapprove the appointment with or without hearing and notify the presiding judge of the court's decision.

SDCL 16-12B-1.2. Certification and information on nominees for magistrate judge - approval by Supreme Court.

The presiding judge of each circuit shall certify to the state court administrator the name of each law-trained person that he proposes to appoint in his circuit. Prior to the appointment of any magistrate judge the presiding judge shall present to the state court administrator a resume of the applicant's qualifications setting forth the proposed salary offered and clearly defining the geographical area he will serve and his anticipated work load. The state court administrator shall distribute this information to all members of the court.

The Supreme Court may approve or disapprove the appointment with or without hearing and notify the presiding judge of the court's decision.

16-18-2.2. Attorney licensing - Requirements for participation by law student.

In order to make an appearance and to participate pursuant to §§16-18-2.2 to 16-18-2.10, inclusive, the law student must:

(1)  Be duly enrolled in or a graduate of the School of Law of the University of South Dakota or a law school approved by the American Bar Association.

(2)  Have completed legal studies amounting to at least four semesters or the equivalent if the school is on some basis other than a semester basis,or.

(3)  Have completed legal studies amounting to at least two semesters or the equivalent if the school is on some basis other than a semester basis, and is enrolled at the time of original certification in a law school clinical program.

(4)  (3)  Be certified by the dean of such law school as being of good moral character and competent legal ability, and as being adequately trained to perform as a legal intern. As a part of the certificate the dean shall set forth the termination date of the certificate. No certificate shall remain in effect in excess of eighteen months after it is filed.

(5)  (4)  Be introduced to the court in which he or she is appearing as a legal intern by a lawyer authorized to practice law in this state.

(6)  (5)  Neither ask nor receive any compensation or remuneration of any kind for his or her services from the person on whose behalf he or she renders services, but this shall not prevent a lawyer, legal aid bureau, law school, public defender agency, or the state from paying compensation to the legal intern, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require.

(7)  (6)  Certify in writing that he or she has read and is familiar with the rules of professional conduct of the Supreme Court of South Dakota, this title and the provisions of §§19-13-2 to 19-13-5, inclusive, and agree to govern his or her conduct accordingly. Such certification shall either be made part of or shall be annexed to the certification of the dean of the law school as required by subdivision (3)  (4)  of this section.

9. The Proposed Adoption Of A New Rule Relating To Civil Case Filing Statements To Be Designated as SDCL 15-6-5(h):

Whenever a party or an attorney representing a party commences a civil action or files an answer or first responsive pleading in a civil action, the party or attorney representing the party shall file a completed civil case filing statement containing

identifying information available to that party or attorney regarding all parties, including the adverse party, with the clerk of the court.

A statement must also be filed whenever a new party is added to the action. The statement shall be available from the clerk or online at the Unified Judicial System’s website. The identifying information for the filing party must be submitted on the filing statement. If the party or attorney representing a party is unable to provide the required information for the filing party, he or she may seek a waiver from the judge assigned to the action. After the information is recorded in the Unified Judicial System docketing system, the filing statement may be destroyed or kept by the clerk of the court in a nonpublic file for internal record management use by the Unified Judicial System. Access to the filed statement will only be available to court personnel of the court order.

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10. Proposed revisions to South Dakota Rules of Professional Responsibility

Rule 1.0. Terminology

(a)  "Belief" or "B believes" denotes that the person involved actually supposes supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

"Consult" or "Consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

(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 private firm, 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, and lawyers employed in a legal services organization. See Comment, Rule 1.10.

(d)  "Fraud" or "F fraudulent" denotes conduct having that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. and not merely negligent misrepresentation or failure to apprise another of relevant information.

(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," "K known," or "K knows" denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

"Lawyer" denotes a person who is a member of The South Dakota Bar or otherwise authorized to practice in any Court of the State of South Dakota.

(g)  "Partner" denotes a member of a partnership or , a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

(h)  "Reasonable" or "R reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i)  "Reasonable belief" or "R reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(j)  "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

(k)  "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

(l)  "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.

(m)  "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

(n)  "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and e-mail. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

Rule 1.1. Competence.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.

(a)  Subject to paragraphs (c)  and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, subject to paragraphs (c), (d)  and (e), and 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 accept an offer of settlement of a matter . In a criminal case, or a proceeding that could result in deprivation of liberty 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 objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent client consents after consultation .

(d)  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know 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)  When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client regarding the relevant limitations on the lawyer's 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: keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(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 lawyer's fee shall be reasonable . 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. When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(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, by written agreement with the client, 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; is advised of and does not object to the participation of all the lawyers involved; and

(3)  the total fee is reasonable.

(f)  Paragraph (e)  of this Rule does not prohibit payment to a former shareholder, partner or associate, or such person's estate, pursuant to a separation or retirement agreement.

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 except for disclosures that are impliedly authorized in order to carry out the representation or the disclosure is permitted by , and except as stated in paragraph (b).

(b)  A lawyer may reveal such 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; or

(2)  to secure legal advice about the lawyer’s compliance with these Rules; to establish a claim or defense on behalf of the lawyer or the lawyer's employees in a controversy between the lawyer or the lawyer's employees and the client, to establish a defense to a criminal charge or civil claim against the lawyer or the lawyer's employees based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer or the lawyer's employees representation of the client;

(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; or 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.

(4)  to comply with other law or a court order.

Rule 1.7. Conflict of Interest: Current Clients General Rule.

(a)  Except as provided by paragraph (b), a A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. of that client will be directly adverse to another client, unless: A concurrent conflict of interest exists if:

(1)  the representation of one client will be directly adverse to another client; or the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(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. each client consents after consultation.

(b)  Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1)  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation will not be adversely affected; and

(2)  the representation is not prohibited by law; the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

(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 other proceedings before a tribunal; and

(4)  each affected client gives informed consent, confirmed in writing.

Rule 1.8. Conflict of Interest: Current Clients: Specific Rules Prohibited Transactions.

(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 to the client in a manner that which 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 in 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. consents in writing thereto.

(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 consents after consultation , except as permitted or required by these Rules. Rule 1.6 or Rule 3.3.

(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. prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

(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; shall be the ultimate obligation of the client; and

(2)  a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(f)  A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1)  the client gives informed consent consents after consultation ;

(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 consents after consultation , in a writing signed by the client. The lawyer’s including disclosure shall include of 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 permitted by law and 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 without first advising 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 that independent representation is appropriate 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: related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

(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 when before the client-lawyer relationship commenced. 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 granted 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.

(k)  While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)  through (i)  that applies to any one of them shall apply to all of them.

Rule 1.9. Duties to Former Clients Conflict of Interest: Former Client .

(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 consents after consultation .

(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 consents after consultation .

(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 Rule 1.6 or Rule 3.3 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 Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

Rule 1.10. Imputation of Conflicts of Interest Imputed Disqualification : 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, 1.8(c), 1.9 or 2.2. , unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(b)  When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1)  The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2)  Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c)  that is material to the matter.

(c)  A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d)  The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees Successive Government and Private Employment

(a)  Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: shall not represent a private 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 consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1)  is subject to Rule 1.9(c)  the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom ; 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. written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(b)  When a lawyer is disqualified from representation under paragraph (a), 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. 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 adverse party to enable it that person 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. a lawyer serving as a public officer or employee shall not:

(1)  participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or

(2)  negotiate for private employment with any person who is involved as a party or as attorney 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).

(d)  Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: As used in this Rule, the term "matter" includes:

(1)  is subject to Rules 1.7, 1.9, and 1.13 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)  shall not: any other matter covered by the conflict of interest rules of the appropriate government agency .

(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 confidential government information " includes: means information which 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.

(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 or Law Clerk.

(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, or had jurisdiction to do so, as a judge or other adjudicative officer, arbitrator 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 after disclosure and consultation .

(b)  A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer attorney 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 or arbitrator may negotiate for employment with a party or lawyer attorney 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 or arbitrator .

(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 it to ascertain compliance with the provisions of this rule.

(c d) An arbitrator selected as a partisan of a party in a multimember multi-member arbitration panel is not prohibited from subsequently representing that party.

Rule 1.13. Organization as Client.

(a)  A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b)  If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violations and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:

(1)  asking for reconsideration of the matter;

(2)  advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and

(3)  referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on in behalf of the organization as determined by applicable law.

(c)  If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.

(d)  In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(e)  A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Rule 1.14. Client With Diminished Capacity Under a Disability .

(a)  When a client's capacity ability to make adequately considered decisions in connection with a the representation is diminished impaired , whether because of minority, mental impairment disability 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. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

(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 person. 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 person has an interest, a lawyer shall promptly notify the client or third person. 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 person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, 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 both the lawyer and another person two or more persons (one of whom may be the lawyer)  claim interests, the property shall be kept separate by the lawyer there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute 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 a )  Funds reasonably sufficient to pay bank charges may be deposited therein.

(ii b )  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 a )  Promptly notify a client of the receipt of his funds, securities, or other properties.

(ii b )  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 c )  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 d )  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 may elect to 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 a )  No earnings from such an account shall be made available to a lawyer or firm.

(ii b )  The account shall include all clients' funds which are nominal in amount or to be held for a short period of time.

(iii c )  An interest-bearing trust account may 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 d )  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 electing to deposit client funds in a trust savings account shall direct the depository institution:

(i a )  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 b )  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 c )  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)  Interest on Short Term or Nominal Trust Accounts Program Guidelines and Ethical Considerations

(1)  This is a voluntary program based upon the willing participation by attorneys and law firms, whether proprietorships, partnerships or professional corporations.

(2)  The program shall apply to all clients of the electing, participating attorneys or firms 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 attorneys and firms who elect to participate in the program:

(i a )  No earnings from the funds may be made available to any attorney or law firm.

(ii b )  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 c )  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 d )  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.

(v e )  Notification of clients whose funds are nominal in amount or to be held for a short period of time is unnecessary for those attorneys and firms who choose to participate in the program. This is not to suggest that many attorneys will not want to notify their clients of their participation in the program in some fashion. There is no impropriety in an attorney or firm advising all clients of their willingness to advance the administration of justice in South Dakota beyond their individual abilities in conjunction with other public-spirited members of their profession. Participation in the program will involve no more than a firm desire to participate, coupled with the attorney's or firm's communication of that desire to an authorized financial institution. That communication should contain only an expression of the attorney's or firm's desire to participate in the program and, if the institution has not already received appropriate notification, advice regarding the Internal Revenue Service's approval of the taxability of earned interest or dividends to the Foundation.

(4)  The following principles shall apply to those clients' funds held in trust accounts by attorneys or firms who elect NOT to participate in the program:

(i a )  No earnings from the funds may be made available to any attorney or firm.

(ii b )  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 c )  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 noninterest-bearing, demand trust account.

(iv d )  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 a )  To help prevent crime;

(ii b )  To facilitate and improve the delivery of civil and criminal legal services and the administration of justice;

(iii c )  To encourage law-related education in the schools (K-12);

(iv d )  To encourage law-related education of adults including seminars and programs for charitable, civic and senior citizens groups;

(v e )  To give the general public information about how the courts and lawyers function; and

(vi f )  To issue publications educating the public about the United States legal system.

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;, or if:

(2)  (1)  the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3)  (2)  the client has used the lawyer's services to perpetrate a crime or fraud;

(4)  (3)  the a client insists upon taking action pursuing an objective that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; imprudent;

(5)  (4)  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)  (5)  the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7)  (6)  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 and property relating to the client to the extent permitted by other law.

(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 and property relating to the client to the extent permitted by other law.

Rule 1.17. Sale of Law Practice.

A lawyer or a law firm his or her law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions set forth in this Rule 1.17 are satisfied: . The seller or purchaser may agree to restrictions on the practice of law by the seller, which shall be set forth in a written agreement. The estate of a deceased lawyer may be a seller. This rule shall not apply to the disposition of the physical assets of a law office that is or will be closed.

(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. The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version)  in which the practice has been conducted; practice is sold as an entirety, except in cases in which a conflict is present or may arise, to another lawyer or law firm.

(b)  The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms; Written notice shall be given to each of the seller's current clients stating that the interest in the law practice is being transferred to the purchaser; that the client has the right to retain other counsel: that the client has the right to take possession of the client's file and property; and that if no response to the notice is received within sixty days of the sending of such notice, or in the event the client's rights would be prejudiced by a failure to act during that time. the purchaser may act on behalf of the client until otherwise notified by the client.

(1)  If the seller is the estate of a deceased lawyer, the purchaser shall cause the notice to be given to the client, and the purchaser shall obtain the written consent of the client to act on the client's behalf. Such consent shall be presumed if no response to the notice is received within sixty days of the date the notice was sent to the client's last known address as shown on the records of the seller or the client's rights would be prejudiced by a failure to act during such sixty day period.

(2)  In all other circumstances, not less than sixty days prior to the transfer the seller shall cause the notice to be given to the client and the seller shall obtain the written consent of the client to act on the client's behalf prior to the transfer. Such consent shall be presumed if no response to the notice is received within sixty days of the date of the sending of such notice to the client's last known address as shown on the records of the seller.

(3)  The purchaser shall cause an announcement or notice of the purchase and transfer of the practice to be published in a newspaper of general circulation within the county in which the practice is located at least thirty days in advance of the effective date of the transfer.

(c)  The seller gives written notice to each of the seller’s clients regarding: The fees charged to clients shall not be increased by reason of the sale of the practice. The purchaser may, however, refuse to undertake the representation unless the client consents to pay the purchaser fees at a rate not exceeding the fees charged by the purchaser for rendering substantially similar services prior to the initiation of the purchase negotiations.

(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. If substitution of purchasing lawyer or law firm in a pending matter is required by the tribunal or this Rule 1.17, the purchasing lawyer or law firm shall provide for same promptly.

(e)  Admission to or withdrawal from a partnership or professional corporation, retirement plans and similar arrangements or a sale limited to the tangible assets of a law practice is not a sale or purchase for purposes of this Rule 1.17.

Rule 1.18: Duties to Prospective Client

(a)  A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b)  Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as in Rule 1.9 would permit with respect to information of a former client.

(c)  A lawyer subject to paragraph (b)  shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d)  When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1)  both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2)  the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i)  the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii)  written notice is promptly given to the prospective client.

Rule 2.1. Advisor.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Rule 2.2. Intermediary.

(a)  A lawyer may act as intermediary between clients if:

(1)  the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's consent to the common representation;

(2)  the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

(3)  the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

(b)  While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

(c)  A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a)  is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.

Rule 2.3. Evaluation for Use by Third Persons.

(a)  A lawyer may provide undertake an evaluation of a matter affecting a client for the use of someone other than the client if : (1)  the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. ; and (2)  the client consents after consultation.

(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)  (b)  Except as disclosure is authorized required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

Rule 2.4: Lawyer Serving as Third-Party Neutral

(a)  A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b)  A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Rule 3.1. Meritorious Claims and Contentions.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Rule 3.2. Expediting Litigation.

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Rule 3.3. Candor Toward the Tribunal.

(a)  A lawyer shall not knowingly:

(1)  make a false statement of material 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 a material fact to the a 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 when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(2)  (3)  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)  (4)  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)  (b)  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.

(c)  A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(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 which 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 or members of a family of a 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; as to the merits of the cause except as permitted by law; or

(c)  engage in conduct intended to disrupt a tribunal;

(d)  communicate or cause another to communicate as to the merits of a cause with a juror or prospective juror after discharge of the jury if: judge or official before whom an adversary proceeding is pending except:

(1)  the communication is prohibited by law or court order; in the course of official proceeding in the cause;

(2)  the juror has made known to the lawyer a desire not to communicate; or in writing, if the lawyer promptly delivers a copy of the writing to opposing counsel or the adverse party if unrepresented;

(3)  the communication involves misrepresentation, coercion, duress or harassment; or orally upon adequate notice to opposing counsel or to the adverse party if unrepresented; 

(4)  as otherwise authorized by law or court rule.

(d)  engage in conduct intended to disrupt the tribunal

Rule 3.6. Trial Publicity.

(a)  A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will a reasonable person would expect to 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: A statement referred to in paragraph (a)  ordinarily is likely to have such an affect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

(1)  the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2)  information contained in a public record; in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

(3)  that an investigation of a matter is in progress; the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(4)  the scheduling or result of any step in litigation; any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

(5)  a request for assistance in obtaining evidence and information necessary thereto; information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

(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 paragraphs (a)  and (b)  (1-5)  , 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. involved in the investigation or litigation of a matter may state without elaboration:

(1)  the general nature of the claim or defense;

(2)  the information contained in a public record;

(3)  that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;

(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:

(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 circumstances of the arrest, including time, place, resistance, pursuit, possession of and all weapons used, and a description of the items seized at the time of the arrest. (This paragraph neither approves nor disapproves the dissemination or reporting of subsequently seized weapons or contraband.);

(iv)  the identity of investigating and arresting officers or agencies and the length of the investigation.

(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). A lawyer may not disclose the existence or content of any confession, admission, or statement given by the accused, except that it may be stated that the accused denies the charges made against him.

Rule 3.7. Lawyer as Witness.

(a)  A lawyer or another lawyer in the lawyer's firm shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: except where:

(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; and

(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; exercise reasonable care to prevent investigators, law enforcement personnel, employees or 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.

(f)  except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees of other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Rule 3.9. Advocate in Nonadjudicative Proceedings.

A lawyer representing a client before a legislative body or administrative agency tribunal 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(a)  and (c).

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 to a third person 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 party 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 to do so .

Rule 4.3. Dealing with Unrepresented Person.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are to have a reasonable possibility of being in conflict with the interests of the client.

Rule 4.4. Respect for Rights of Third Persons.

(a)  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b)  A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender, and or sender’s lawyer if sender is represented.

Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers a Partner or Supervisory Lawyer.

(a)  A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.

(b)  A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

(c)  A lawyer shall be responsible for another lawyer's violation of the rules of professional conduct if:

(1)  the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2)  the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 5.2. Responsibilities of a Subordinate Lawyer.

(a)  A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(b)  A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Rule 5.3. Responsibilities Regarding Nonlawyer Assistants.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a)  a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b)  a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c)  a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:

(1)  the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2)  the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 5.4. Professional Independence of a Lawyer.

(a)  A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1)  an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;

(2)  a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer;

(3)  a lawyer who purchases or law firm purchasing 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; and

(4)  a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and.

(5)  a lawyer may share court-awarded legal fees with a nonprofit 501 (c)(3)  or 501 (c)(6)  organization that employed, retained or recommended employment of the lawyer in the matter.

(b)  A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c)  A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

(d)  A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1)  a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2)  a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3)  a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law.

A lawyer shall not:

(a)  A lawyer shall not practice law in a jurisdiction in violation of where doing so violates the regulation of the legal profession in that jurisdiction, or assist another in doing so. ; or

(b)  A lawyer who is not admitted to practice in this jurisdiction shall not: assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

(1)  except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2)  hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c)  A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1)  are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2)  are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3)  are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4)  are not within paragraphs (c)(2)  or (c)(3)  and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice, and

(5)  in all cases, the lawyer obtains a South Dakota sales tax license and tenders the applicable taxes pursuant to Chapter 10-45.

(d)  A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1)  are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2)  are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction, provided that the lawyer obtains a South Dakota sales tax license and tenders the applicable taxes pursuant to Chapter 10-45.

Rule 5.6. Restrictions on Right to Practice.

A lawyer shall not participate in offering or making:

(a)  a partnership, shareholders, operation, employment, or other similar type of or employment agreement that restricts the rights 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 between private parties.

Rule 5.7. Responsibilities Regarding Law-Related Services

(a)  A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1)  by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or

(2)  in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b)  The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

Rule 6.1. Voluntary Pro Bono Publico Service.

A lawyer should render public interest legal service.

A lawyer may discharge this responsibility by:

(a)  providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations; or

(b)  by service without compensation in public interest activities that improve the law, the legal system or the legal profession; or

(c)  by financial support for organizations that provide legal services to persons of limited me