Lawyer Discipline
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Members of The State Bar of South Dakota have
adopted high
standards of professional
conduct which define proper and improper conduct for a lawyer handling
legal matters. To
maintain these standards, a system of self-discipline has been created
and is administered
through the Disciplinary Board of the State Bar, the Attorney General
of the State of
South Dakota, and the South Dakota Supreme Court.
general considerations
Every member of the legal profession takes an oath to uphold
the law and to abide by
the Rules of Professional Conduct. A lawyer who violates these
standards of conduct may be
disciplined and given penalties ranging from a private reprimand to
permanent loss of the
privilege to practice law.
Lawyers may lose the trust and confidence of a client for
various reasons. It is
important to realize that in many cases where a client is dissatisfied,
grounds for
discipline may not exist. A lawyer can be disciplined only if he has
violated the
standards of professional responsibility.
A formal complaint of unprofessional conduct against a lawyer
is a serious matter. A
lawyer who is accused of misconduct inevitably suffers whether or not
he is finally found
to be at fault. More than a claim of misconduct is needed to justify
discipline. It takes
evidence—proof, just as it does before any member of society
can be punished for
wrongdoing.
An honest disagreement between lawyer and client about the
handling of a case is not
misconduct. A mistake or error of judgment is not a cause for
discipline.
There are other situations—a failure on the part of
a lawyer to clearly explain
the case or refusing to respond to his phone calls which may annoy a
client. While these
situations are not generally considered misconduct, the Disciplinary
Board is,
nevertheless, anxious to see that they are corrected.
Fee matters are not often a basis for discipline of a lawyer
because they generally do
not involve questions of ethics or professional misconduct. Further,
controversy over fees
may be resolved by court action. In some cases, however, such as when
the fee charged is
either illegal or clearly excessive, ethics are involved. In those
cases where the lawyer
is found to be at fault, discipline will follow. Most fee disputes come
from a lack of
understanding as to how a lawyer charges for his services. Clients
should never be
reluctant or embarrassed to discuss fees with their lawyers.
If you believe your complaint against a lawyer is wellfounded,
by all means file it.
If, on the other hand, your grievance could be the result of poor
communication, lack of
agreement or some misunderstanding, it may be the problem can best be
resolved by a frank
talk with the lawyer.
discipline of lawyers
The purpose of a disciplinary proceeding is to administer
discipline to the lawyer.
This may take one of several forms, depending on the circumstances and
severity of the
offense. Discipline may range from a private reprimand by the board,
public censure,
suspension from practice for a specified time, placement on probation,
to disbarment by
the Supreme Court.
The Disciplinary Board does not, and cannot, give individual
legal service or advice to
any person making a complaint. Further, any loss the client suffers as
a result of the
matter involved cannot be recovered through disciplinary proceedings.
The lawyer may be
disciplined, but if the client thinks the lawyer's actions caused the
client to lose money
or otherwise injured the client, he may be able to sue the lawyer for
money damages. This
would be a matter to take up with a lawyer in private practice, not the
Disciplinary
Board.
filing a complaint
A complaint may be filed by sending a signed letter to:
Disciplinary Board, The State
Bar of South Dakota, 222 E. Capitol, Pierre, SD 57501. Upon the receipt
of the written
complaint, fully describing all the facts and all sources of
information, it will be
reviewed by the Board. Names, dates, addresses, and other documentation
must be included
in the complaint as a basis for investigation.
investigation
If it appears that sufficient grounds exist, the next step is
investigation. In simple
matters, the investigation is conducted by a member of the Disciplinary
Board through
correspondence with the client and the lawyer. In more complicated
matters, where there
may be witnesses involved, accounting problems, or disputed facts, the
Disciplinary Board
uses an investigator. The investigation provides a factual basis for
the Disciplinary
Board to determine if cause for discipline exists.
hearings
Disciplinary hearings may be held before the sevenmember
Disciplinary Board. The
procedure in disciplinary hearings is similar to that in court trials.
A record is kept by
a court reporter. Testimony is given under oath. Witnesses and records
may be subpoenaed
but the hearing is not open to the public.
If the board determines the lawyer has done no wrong, the
complaint is dismissed. The
board may issue a private reprimand in less serious cases of
wrongdoing. More serious
violations are reported to the Supreme Court, which may in turn, refer
the matter to a
circuit court judge to act as a referee, try the matter, and recommend
discipline to the
Supreme Court.
confidentiality
Disciplinary proceedings are confidential until they reach the
point where the
Disciplinary Board or the Attorney General files formal charges at the
direction of the
Supreme Court. Confidentiality is maintained because the complaint
against the lawyer
usually arises out of confidential transactions with a client. Also,
unfair publicity
could result if the complaint were found to lack substance.
what you may expect
You may expect that the South Dakota Disciplinary Board will
be genuinely concerned
with your complaint. Your complaint will receive full and prompt
attention. No complaint
is ever swept under the rug.
You may be interviewed by the staff investigator. You may be
called as a witness to
testify under oath at any disciplinary hearing that is held on your
complaint. You may
expect the procedure will take time.
You will be notified of the final outcome of your complaint.
You will receive these services without charge. The funds for
the operation of the
disciplinary system in South Dakota are part of annual State Bar dues
paid by every lawyer
in this state.
what you should not expect
You should not expect the Disciplinary Board to do work you
claim your attorney has
failed to do for you.
You should not expect to be given detailed reasons for the
final decision made about
your complaint unless public discipline (disbarment, suspension,
placement on probationary
status, or public reprimand) is imposed by the Supreme Court.
Members of the
Disciplinary Board appreciate your interest.
They seek fair, impartial
and vigorous enforcement of the Rules of Professional Conduct in the
interests of the
public and the legal profession.
The State Bar of South Dakota
222 E. Capitol
Pierre, SD 57501
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