March/April 2014 - South Dakota Trial Lawyers Association

M ARCH/ APRIL 2 01 4
ISSUE NO. 273
Inside this issue….
Affirmative Defenses…. page 5
Retail Marijuana Lightin’ Up the Political
Economy… page 6
Your Word is Your Bond...page 8
5 Steps to Better Law Firm Marketing
- page 9
SDTLA Spring Seminar is Catching Fire! see page 11
2014 Final Legislative Report… page 16
Call for Board of Governor Nominations
- page 22
Law School Times
and much, much more…..
SDTLA CALENDAR OF EVENTS
2014
April 17
Board Conference call, 4 pm CT
May 8
Board meeting 11 am & Spring Seminar 1pm
Grand Falls Resort, Larchwood, IA
Spring Seminar, 9– Noon
Grand Falls Resort, Larchwood, IA
May 9
June 18
June 19
Board Meeting at Bar Convention, Sioux Falls, 11 am
Annual Meeting and Elections, Sheraton Sioux Falls
July 17
Board Conference call, 11 am CT
August 14
Board meeting, 11 am Holiday Inn Express, Vermillion
Mock Trial 1pm, USD Law School Courtroom
September 25
Board meeting, Lodge of Deadwood
Fall Seminar & Banquet, Lodge of Deadwood
September 26
Fall seminar, 9 – noon, Lodge of Deadwood
March/April 2014
Page 2
PRESIDENT ’S MESSAGE….
BY STEPHANIE E. POCHOP
I have had the best result that a trial lawyer can
wish for: my kid was accepted to the USD
School of Law. He tells me that he made this
choice because he feels called to help people,
and I am over-the-top proud about his decision.
Contrary to popular myth, there are enough
jobs to go around for people who go to law
Officers
President: Stephanie E. Pochop
school in order to be able to help others. In
President-Elect: G. Verne Goodsell
rural South Dakota today, there are entire
Secretary-Treasurer: Steven C. Beardsley
counties that are critically underserved by the
legal profession. Our SDTLA student liaison,
Board of Governors
Timothy Rensch, AAJ Delegate
Kelsea Kenzy Sutton, was recently responsible
Richard D. Casey, AAJ Delegate
for coordinating a very successful symposium
Clint Sargent, AAJ Governor
at USD Law that highlighted the pressing need
Terrence R. Quinn, AAJ Governor
for legal services in the rural areas across the
Aaron D. Eiesland
Casey W. Fideler
nation. Simply put, we need more lawyers who
Alecia E. Fuller
want to help people – and when they graduate,
Raleigh E. Hansman
we need to make sure that these new lawyers
Margo Tschetter Julius
know that the SDTLA is there to help them
Ryan Kolbeck
Brad J. Lee
achieve this noble professional goal.
Melissa B. Nicholson
Kasey L. Olivier
Robbie J. Rohl
McLean Thompson Kerver
T.J. Von Wald
Past Presidents
Immediate Past President
Steven S. Siegel
William J. Holland - Stan Siegel
Joseph M. Butler - John H. Zimmer
Carleton R. Hoy - Horace R. Jackson
William F. Day Jr. - Vincent J. Protsch
Gale E. Fisher - A. William Spiry
Franklin J. Wallahan - Gerald L. Reade
Rick Johnson - David V. Vrooman
Terence R. Quinn - Thomas R. Pardy
Charles M. Thompson - David R. Gienapp
Gary E. Davis - Gregory A. Eiesland
James S. Nelson - Robert J. Burns
Brent A. Wilbur - Steven M. Johnson
Glen H. Johnson - William J. Srstka Jr.
Gary D. Jensen - John P. Blackburn
Michael W. Day - Michael J. Schaffer
Bruce M. Ford - Nancy J. Turbak Berry
Scott Heidepriem – Michael D. Stevens
Robert L. Morris II - Richard D. Casey
Jon Sogn – Mark V. Meierhenry
Brad Schreiber – Jeff A. Larson
Mark Connot – Tina M. Hogue
James Roby - Wally Eklund
Michael F. Marlow - Clint Sargent
Michael A. Wilson—Roger A. Tellinghuisen
Association Office
104 W Spring Creek Dr — PO Box 1154
Pierre, SD 57501-1154
605-224-9292
I am more than little relieved that my kid chose law school despite everything he has
witnessed behind the scenes in our “law” family. He has definitely seen some unhealthy expressions of stress -- a flowery way of describing my volcanic melt-downs.
I hope it will be an advantage for him that he already knows that our profession is so
demanding that it can push a lawyer to the edges of physical and emotional health;
that there is no simple shut-off valve between a lawyer’s professional responsibly to
a client and the feelings of personal responsibility that attach to the realities of the
client’s legal outcome; that we must regularly deal with difficult, hurting and angry
people… some of whom are other lawyers; that being the lawyer with the most work
into a case does not always result in the best outcome; and that a good year is one
where there are more months in the black than in the red.
These are realities that most, if not all, trial lawyers need to learn to deal with to succeed in the practice of law. Because of them, ABA studies reflect that fewer and
fewer of the best and brightest students are choosing to use their brains and talents
in the legal profession. A large component of this distressing statistic is attributable
to the loud, highly-funded and relentless attacks upon on the integrity of our profession that persist even when “tort reform” isn’t a front line legislative issue. Yet we
also must acknowledge that some of the bad press about our profession is earned
for us by rude, financially predatory and/or unprepared lawyers. Though they are a
fractional percentage, bad lawyers not only live up to the worst lawyer joke stereotypes that circulate among our clients and jurors, they have the effect of being enthusiastic vampires among trial lawyers.
Here is my own non-scientific formula with regard to incidents of BLI (Bad Lawyer
Interactions, also referred to as “AHLI”): it takes me 10 positive professional interactions with other lawyers and judges to make up for every 1 interaction with an insufferable jerk. I try to do my part in this battle against professional blight by being
in the “10” part of my 10:1 ratio with every lawyer and judge that I deal with. It is not
difficult to do – indeed, it is often fun -- and being in someone else’s “10” has the
Continued on page 21
The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote
professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who
share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of
copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of
$25 are included in the Association’s annual membership dues. Non-members subscription rate is $50 per year.
Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about
them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.
March/April 2014
Scott A. Abdallah
Michael C. Abourezk
Charles Abourezk
Grant G. Alvine
Stephanie R. Amiotte
Kenneth E. Barker
Steven C. Beardsley
John P. Blackburn
Michael D. Bornitz
John William Burke
Michael J. Butler
Renee H. Christensen
Page 3
SUSTAINING MEMBERS
J. Michael Dady
Patrick K. Duffy
Gregory A. Eiesland
Aaron Eiesland
Dennis W. Finch
Jay R. Gellhaus
G. Verne Goodsell
Scott N. Heidepriem
Scott G. Hoy
John R. Hughes
Gary D. Jensen
Steven M. Johnson
James C. Roby
Michael K. Sabers
Clint Sargent
Steve S. Siegel
Michael J. Simpson
Michael D. Stevens
Michael W. Strain
Roger A. Tellinghuisen
Thomas P. Tonner
Nancy J. Turbak Berry
TJ Von Wald
Thomas K. Wilka
Michael A. Wilson
George Johnson
David J. King
Jeff A. Larson
James D. Leach
Michael F. Marlow
Lee C. 'Kit' McCahren
Mark V. Meierhenry
N. Dean Nasser
James S. Nelson
Stephanie E. Pochop
Terence R. Quinn
Timothy J. Rensch
Sustaining members pay $700 in dues each year, which entitles them to attend the Association’s annual fall seminar, the annual meeting and
luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to
sustain funding for an on-going defense of the civil justice system!
SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contributes to any candidate
for a state office who will support fair and equitable legislation to protect
the rights of South Dakotans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!
$1,800 ANNUAL
Michael F. Marlow
Lee C. “Kit” McCahren
Stephanie E. Pochop
$1,200 ANNUAL
Kenneth E. Barker
John P. Blackburn
Aaron D. Eiesland
Gregory A. Eiesland
Scott N. Heidepriem
Clint Sargent
Michael D. Stevens
Roger A. Tellinghuisen
$1000 ANNUAL
Scott Hoy
$900 ANNUAL
Gary D. Jensen
Nancy Turbak Berry
$720 ANNUAL
Michael A. Wilson
$600 ANNUAL
Terry L. Hofer
Margo T. Julius
Mark V. Meierhenry
James C. Roby
Michael J. Schaffer
Whiting Hagg & Hagg
$500 ANNUAL
John W. Burke
Courtney R. Clayborne
Terry Pechota
$480 ANNUAL
Jon C. Sogn
$300 ANNUAL
Charles Abourezk
Steven C. Beardsley
G. Verne Goodsell
Wm. Jason Groves
Paul H. Linde
Thomas Tobin
$240 ANNUAL
Richard D. Casey
$200 ANNUAL
Stephanie Amiotte
$180 ANNUAL
Brad J. Lee
$150 ANNUAL
Jeremiah “Jay” Davis
$120 ANNUAL
Kenneth D. Bertsch
Daniel F. Duffy
Richard A. Engels
Dennis W. Finch
Robert B. Frieberg
Alecia E. Fuller
George E. Grassby
Ryan Kolbeck
Michael Paulson
Catherine V. Piersol
Haven L. Stuck
T. J. Von Wald
LIFETIME ACHIEVEMENT AWARD
Carleton “Tex” Hoy
John F. Hagemann
Robert C. Ulrich
Fred J. Nichol Award for
Outstanding Jurist
Hon. Ernest W. Hertz – 2000
Hon. Andrew W. Bogue - 2001
Hon. John B. Jones – 2002
Hon. George W. Wuest - 2003
Hon. Marshall P. Young – 2004
Hon. Robert A. Amundson – 2005
Hon. Lawrence L. Piersol – 2006
Hon. Richard W. Sabers – 2007
Hon. Judith K. Meierhenry - 2008
Hon. Tim D. Tucker – 2009
Hon. David R. Gienapp - 2010
Hon. Jack Von Wald – 2011
Hon. John Bastain - 2012
Hon. David Gilbertson -2013
TRIAL LAWYER
OF THE YEAR AWARDS
87-88
88-89
89-90
90-91
91-92
92-93
93-94
94-95
95-96
96-97
97-98
98-99
99-00
00-01
01-02
02-03
03-04
04-05
05-06
06-07
07-08
08-09
09-10
10-11
11-12
12-13
Terry Quinn
Greg Eiesland
Steve Johnson
Glen Johnson
Bob Burns
Gary Jensen
Joe Butler
Mark Meierhenry
Jeff Larson
Nancy Turbak
David Gienapp
Rick Johnson
Jim McMahon
Mike Schaffer
John Blackburn
William F. Day, Jr.
Michael Abourezk
Michael W. Strain
Patrick Duffy
Thomas G. Fritz
Michael J. Butler
Wally Eklund
James D. Leach
N. Dean Nasser, Jr.
Stanley Whiting
Charles M. Thompson
March/April 2014
TOAST OF TRIAL LAWYERS
June 2006
Nancy Turbak
T.F. Martin
Travis Jones
Michael Stevens
June 2007
Roger Tellinghuisen
Mike Butler
Eric Schulte
June 2008
Sid Strange
Jerry Reade
Jim Leach
June 2009
Mike Abourezk
Alecia Garcia
Scott Heidepriem
Shiloh MacNally
Doug Cummings
June 2010
Michael DeMersseman
Hon. John Schlimgen
Joni Cutler
Margo Julius
Scott Abdallah
June 2011
Susan Sabers
TJ Von Wald
John Murphy
Steve Siegel
June 2012
John Blackburn
Linda Lea Viken
Hon. Mark Smith
Ronald Parsons
June 2013
Rep. Michael Stevens
Hon. John Hinrichs
Hon. Michelle Percy
Clint Sargent
McLean Thompson Kerver
Eric C. Schulte
Tim Rensch
Stephanie Pochop
Richard Casey
Ryan Kolbeck
Page 4
EDITOR’s Notes & Comments
Marya V. Tellinghuisen
“It’s spring fever. That is what the name of it
is. And when you’ve got it, you want-oh, you
don’t quite know what it is you do want, but it
just fairly makes your heart ache, you want it
so!” Mark Twain
This year especially, I know I am not alone in
treasuring the first signs of spring. The vacillating temperatures and the long winter have
made us all grow weary. I was raised in a bird
-watching family and have always watched for
the “first” robin or other migrating bird families.
So far, I have not seen a robin, but Roger has
returned from Pierre, which at my house is a
sign of spring. This issue includes his legislative report which discusses the
sessions’ highlights. As usual, Roger and Sara did a yeoman’s job of keeping us informed of what was going on. Thank you to everyone who assisted
them in their efforts.
We also have a great contribution from Jon Sogn and the University of Hard
Knocks. He has compiled a list of “defenses” to consider when drafting an
answer to a complaint. If anyone else has a similar contribution, please
send it to Sara or me. We would be happy to publish it. I recently attended
a portion of the Young Lawyer’s Boot Camp, and I distributed a few of our
past issues that had great articles regarding working with court reporters,
motions in criminal court and drafting jury instructions. We often have great
authors and useful articles and these articles are a great way to attract a
new, young member to our organization.
Robbie Rohl has submitted a thought provoking article on the ramifications
of the legalization of marijuana possession in other states. If you are advising clients (whether criminal defendants or entrepreneurs) you should read
this so that you don’t violate any ethical rules. Also, we had an article submitted to us by the managing editor of The Expert Institute on law firm marketing. This should appeal to all of you—big firm or small. It includes tips
on maximizing your online presence. Also included in this issue is an article
written by me regarding candor to the tribunal. As stated in the article, this
isn’t a huge issue in South Dakota, but maybe it will help one attorney reflect on some of his practices. Each month the State Bar Newsletter reprints our Oath. It serves as a good reminder of what we swore we would
do when admitted to the court in South Dakota. If you haven’t read it, take a
minute and do so. They are pretty powerful words.
Finally, think about inviting your mentee to the seminar in Larchwood on
May 8th. Volunteer to meet him or her somewhere for lunch before the
seminar begins at 1:00. Or if you aren’t attending, line up a partner or
someone to meet with him or her in your place. We all know it is intimidating to go to an event such as this and not knowing anyone.
That’s about all for now. Keep your eye out for those robins…shouldn’t be
long now.
March/April 2014
Page 5
Defenses
Here is a checklist of defenses and other issues to consider when drafting an answer to a
complaint. Some, but not all, are “affirmative” defenses. See SDCL 15-6-8(c) & 15-6-12. It is
something I have put together over the years, with most entries on the list being added after
another lesson at the University of Hard Knocks. If anyone has suggestions on other items
to add to the list, please let me know - I would like to hear about it now rather than paying
more tuition to UHK. Thanks.
Jon Sogn
Lack of personal jurisdiction
Lack of subject matter jurisdiction
Improper venue
Improper service;
Preemption (ERISA, etc.)
Removal to federal court
Mandatory arbitration
Demand for jury trial
Arbitration and award
Failure to mitigate damages
Discharge by bankruptcy
Duress
Waiver and/or Estoppel
Fraud
Laches
Failure to join indispensable party
Payment
Release
Res Judicata and/or collateral estoppel
Statute of frauds
Statute of limitations
Contributory negligence
Assumption of risk
Determination of percentages of fault among parties and contribution of same
License
Privilege or truth in defamation proceeding
Self defense
Failure of consideration
Illegality
Void or voidable contract
Accord and satisfaction/novation
Privity of Contract
Misuse of product
No strict liability against seller 20-9-9
Lack of standing
Exclusive remedy of workers’ compensation
Constitutionality
Failure to exhaust administrative remedies
Beyond scope of administrative charge (employment law cases)
(updated 1-23-14)
March/April 2014
Page 6
Retail Marijuana Lightin’ Up the Political Economy
By: Robbie Rohl
The purpose of this article is to call to attention various dilemmas and issues encompassing
the vast discrepancy, on a state to state basis, generated by the legalization and decriminalization of marijuana possession. I am not attempting to advocate one way or another, but
simply trying to promote awareness as to the more prevalent issues.
Before presenting issues, it first seems necessary to provide a national framework of current
marijuana laws and pending legislation. Doctor prescribed medical marijuana legislation is
enacted in the following states and district: Alaska; Arizona; California; Colorado; Connecticut; Delaware; District of Columbia; Hawaii; Illinois; Maine; Maryland; Massachusetts; MichiRobbie Rohl
gan; Montana; Nevada; New Hampshire; New Jersey; New Mexico; Oregon; Rhode Island;
Vermont and Washington. NORML, State Laws, Medical Marijuana, available at http://
norml.org/legal/medical-marijuana-2, (2014). The following states, as of March 17, 2014, have pending legislation relating to medical marijuana: Florida; Georgia; Kansas; Kentucky; Maryland; Minnesota; Mississippi; Missouri; New York;
Ohio; Pennsylvania; Tennessee; Utah; West Virginia and Wisconsin. ProCon, 15 States with Pending Legislation to Legalize Medical Marijuana, available at http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481,
(2014). Currently only Colorado and Washington have legalized marijuana for recreational use. CNN, Alaska Closer to
Becoming 3rd State to Legalize Recreational Marijuana, available at http://www.cnn.com/2014/01/09/us/alaskarecreational-marijuana-push/, (2014).
Issue #1: Marijuana legalization leads to ethical dilemmas for bar associations
A rare conflict between state and federal law has caused bar associations to become involved in trying to sort out the
ethical dilemmas. Given the outright legality of possessing and selling marijuana in Washington and Colorado, lawyers
are consulted to deal with the same legal questions that any industry faces, i.e. drafting contracts, setting up entity structure(s), tax, litigation, financing, Uniform Commercial Code, drafting non-competes for sales employees, employee
handbooks, insurance, regulatory compliance and etc. The problem, however, is that possessing and selling marijuana
is illegal under federal law. To further complicate the issue, the Obama Administration has said, unofficially, “that it will
not prosecute attorneys who advise clients about marijuana-related issues in states where it is legal,” said Ken Goldsmith, ABA Legislative Counsel and Director. “A lawyer should be aware that so long as the federal law is on the books,
advising a client could be construed as aiding and abetting in the perpetration of a known federal offense. A change in
policy, or subsequent Administrations could still repeal the no prosecution policy,” he said. National Association of Bar
Executives, available at http://www.nabenet.org/displaycommon.cfm?an=1&subarticlenbr=191, (2014).
The ethical difficulty sounds in states’ rules of professional conduct. “A lawyer shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows is criminal […]” SD Rule of Professional Conduct 1.2(d) (emphasis added). Furthermore, Comment 14 of the SD Rules of Professional Responsibility Preamble goes on to state, “[t]he Rules
of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms ‘shall’ or ‘shall not.’ These define
proper conduct for purposes of professional discipline.” (Emphasis added). Almost all states have a rule(s) of professional conduct similar to SD Rule 1.2.
In recognition of this inherent problem, attorneys in Nevada, Colorado and Washington have asked for guidance from
their Supreme Courts and Bar Associations. In Colorado, the Bar Association released an ethics opinion in December of
2013, which said that lawyers cannot advise clients regarding “the full panoply of conduct permitted by the marijuana
amendments.” This means attorneys would be breaking the rules of professional conduct if they helped a client arrange
a lease or negotiate a contract for a marijuana business. In Colorado, a state committee of lawyers and judges has recommended new rules for lawyers, which would create an exemption for lawyers who help marijuana businesses. A separate proposed rule change would even allow attorneys to use marijuana themselves without breaking rules against the
use of illegal substances.
Despite the murky waters that lawyers must navigate, the Colorado Bar Association said in December that no lawyers
had yet been punished for working with marijuana businesses. Craig Small, an attorney and board member for a promarijuana group Colorado NORML, said the following: “[i]t doesn’t seem to be in the interest of fairness and the American way that you create a regulatory structure that is very, very complex … and at the same time not allow them access
to attorneys to guide them through that structure.” The Denver Post, Rule change proposed for Colorado’s marijuana
industry lawyer, available at http://www.denverpost.com/ci_24778651/rule-change-proposed-colorados-marijuanaindustry-lawyers, (2013).
Continued on page 20
March/April 2014
Page 7
Napoli Lawyer-Bashing Unjustified
By James D. Leach
Reprinted from Rapid City Journal March 10, 2014
Bill Napoli (Journal, March 1) complains about frivolous lawsuits. But he does not cite a single example. Not from Pennington County. Not from western South Dakota. Not from eastern South Dakota. Not now. Not in the past 10 years. Not ever.
James Leach
For Napoli, frivolous lawsuits in South Dakota are like the abominable snowman: many believe they exist, but no one has ever seen one.
Napoli suggests that we need a law to protect us against vindictive, unjustified lawsuits. But
we already have a law. It was enacted in 1997, when Napoli was in the Legislature, so I don’t know why he is unaware
of it.
This law—SDCL 15-17-51—provides that if a lawsuit is frivolous or malicious, the court may order the offending party
to pay the other side’s attorney fees. Another law—SDCL 15-6-11(b)—allows a judge to punish an attorney who
makes a frivolous or vindictive claim or defense.
These laws rarely need to be used. Lawyers understand the difference between a reasonable claim and a frivolous
one. And no lawyer ever benefits from bringing a frivolous claim, because it hurts the lawyer’s reputation and pocketbook.
In fact, lawyers protect the court system from such claims by regularly advising potential clients that they do not have a
valid basis for a lawsuit. Like other lawyers, I regularly see people who I have to tell that they have no legal claim. The
vast majority accept my advice.
Napoli asserts that “many lawsuits are filed because the attorney needs someone to pay for their new boat or condo.” I
don’t know a single attorney who has a new condo, but undoubtedly there are some. And after 38 years of legal practice, I still don’t have a boat, new or used, unless you count my 20-year-old, 16-foot canoe.
As Napoli complains, lawyers can be expensive. But Napoli seems to think that every dollar a lawyer takes in goes
straight into the lawyer’s pocket. In fact, like every other profession, a substantial portion of every dollar pays for employee salaries, office space, business equipment, professional education, insurance, overhead, and taxes. And from
the remaining amount, most younger lawyers are still trying to pay off their law school debt.
These financial realities make legal services unaffordable for many. About 50% of Pennington County divorces are
now handled without lawyers. This is a significant problem, because without lawyers, the less educated or articulate
party may not get what he or she is entitled to. But blaming lawyers for this situation is like blaming doctors for disease
or cops for crime.
Every day, lawyers donate their services at no cost for people who can’t afford them. We rarely blow our own horns.
And much of what we do, by its nature, is private and confidential. Many of us went to law school to try to help people
less fortunate than ourselves, and many of us—probably as many as in any other profession—continue to live out that
commitment.
Toast of the Trial Lawyer Award Nominations Being Sought
The SDTLA Board of Governors is accepting nominations for the Toast of Trial Lawyers annual
awards selected from member nominations. SDTLA is seeking nominations for lawyers who deserve special recognition for an act or acts of outstanding service to their community, profession or
client(s) over the past year. The awards are given each year at the Annual Meeting in June. Multiple recipients are possible. Please send a letter with a brief synopsis of your nomination's exceptional service or representation for use by the selection committee, which is made up of five SDTLA
members appointed by the president. Nominations must reach the SDTLA office by May 1, 2014
to be considered. Mail them to SDTLA, Trial Lawyer Toast Award, PO Box 1154, Pierre, SD
57501-1154 or email to [email protected].
March/April 2014
Page 8
Your Word is Your Bond
By Marya Tellinghuisen
“Integrity is doing the Right Thing, Even When No One is Watching”
C.S. Lewis
In my children’s bathroom, there is a container that holds Q-tips that has the above quote on it. A very subtle message
from their mother that a life of integrity is worth living. Do people make mistakes? Of course. But in that instance, the
lesson to be learned is to take responsibility and accept the consequences for the behavior. As an attorney, it is important to learn that your word—to another attorney, a judge, a partner or a client—is your bond. Not only does it make
for better relationships, it is also mandated by our professional rules.
SDCL Rules of Professional Conduct, Rule 3.3 provides:
Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to timely correct a false statement of material fact or
law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take
reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false. However, in a criminal matter, the lawyer shall not participate with the client in the presentation of the client's testimony which the lawyer knows to be false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall timely take
reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the
tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision,
whether or not the facts are adverse.
The comments following this section explain:
COMMENT:
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See
Rule 1.0(m) for the definition of “tribunal.” It also applies when the lawyer is representing a client in an ancillary
proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example,
paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a
client who is testifying in a deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines
the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an
obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to
vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.
This rule applies to statements made by the attorney and his client. If one learns that his client has misled the court, the
attorney has an ethical obligation to remedy that false statement.
Continued on page 18
March/April 2014
Page 9
SEO for Lawyers:
5 Steps to Better Law Firm Marketing
by Inna Kraner, Esq., Managing Editor of The Expert Institute
As attorneys, we pride ourselves on our reputation and skill. However, word-of-mouth only goes so far in the digital age.
A report by the American Bar Association Standing Committee
on the Delivery of Legal Services noted that while 34% of
adults utilized print directories such as the Yellow Pages to
find lawyers, now only 8% of adults say they would turn to
such sources for finding legal help.
LexisNexis reports that “3 out of 4 consumers seeking an attorney over the last year used online resources at some point
in the process.” Moreover, the ABA’s 2012 Legal Technology
Survey reveals that more than 50% of small law firms and solo
practitioners report “retaining clients directly or via referral as a
result of their legal-topic blogging.” Yet, less than 13% of firms
are actually blogging, demonstrating how SEO for lawyers is
greatly underutilized.
Maximizing your law firm’s online presence does not have to
be a complicated headache-inducing process. For example,
expanding your website from just listing your name and areas
of practice to including additional pages and in depth content
will greatly augment your digital presence and allow you to
begin ranking within the major search engines. Below are five
steps that will help explain how SEO for lawyers will increase
your online exposure and ultimately generate more business.
1. Perform Keyword Research and Create Value Rich Content
Promoting your reputation online translates to creating in-depth and valuable content that is meaningful and relevant to
your target audience. Your website’s content may include helpful legal analysis, case studies, white papers, and FAQs.
SEO for lawyers is founded on the idea of providing industry-specific knowledge. Such content will substantially increase your online visibility and boost your organic search traffic by allowing search engines to index and rank your
website.
Online tools such as Google Keyword Planner, KeywordSpy, and SEM Rush can help you assess which keywords are
most relevant to your audience and which will garner a significant volume of searches. For example, a personal injury
attorney may be interested in ranking for keywords such as personal injury lawyer, car accident lawyer, or burn injury
lawyer.
As you develop material specific to relevant keywords, major search engines will begin ranking your firm’s website,
thereby increasing your firm’s visibility in the digital marketplace. You will soon see why the phrase “content is king”
rings true as your content directly helps you to reach a greater audience and amass more business opportunities.
2. Optimize Your Content and Website
Writing great content and performing keyword research is only a small piece of the SEO puzzle. Another important facet
to SEO for lawyers is on-page optimization because it will allow search engines to easily crawl, digest, and index your
material. Consider these five important elements when organizing the layout
of your content and developing your website:
Page Title: Place the relevant keyword within the title, preferably towards the beginning. This indicates relevance to
search engines and your target audience.
Continued on page 19
March/April 2014
Page 10
March/April 2014
Page 11
SDTLA is CATCHING FIRE!!
2014 Spring Seminar
May 8-9, 2014
Grand Falls Resort, Larchwood, IA
Agenda
Thursday, May 8, 2014
12:30 p.m.
Registration and coffee….
1:00 p.m.
SDTLA President’s Welcome – Stephanie Pochop, Gregory
1:05 p.m.
Deposition Basics
Gary Jensen, Rapid City
2:00 p.m.
BREAK
2:15 p.m.
Discovery with Electronic Technology
Colleen Zea and Dan Meinke, Computer Forensic Resources, Sioux Falls
3:15 p.m.
BREAK
3:30 p.m.
Hot Topics for Family Law…. the Emerging Issues
Civility and Professionalism
Family Law and how it differs from other Civil and Criminal Law
Cohabitation Agreements, Same Sex Marriage and more
Linda Lea Viken, Rapid City
4:30 p.m. Adjourn
5:15 p.m.
Past President’s Networking Reception – (included in tuition)
Special Presentation to Judge Hinrichs
6:00 p.m.
Banquet Dinner followed by SDTLA Roasting of Bob Morris
Contact Sara if you want to be a roaster!
Friday, May 9, 2014
9:00 a.m.
A South Dakota Drug Court Panel of Circuit Court Judges & a Graduate
10:00 a.m.
Break
10:30 a.m.
The Eight Traits of Great Trial Lawyers
Hon. Mark Bennett, US District Court Judge, Northern District of Iowa
Noon
Adjourn
REGISTRATION FEES: (All registrations include the banquet dinner & roast)
____ $175.00
Sustaining members and members over 3 years in practice
____ $150.00
members less than 3 years in practice
____ $250.00
non-members less than 3 years in practice
____ $325.00
non-members over 3 years in practice
____ $50.00
Judges and Legal Support Staff
____ $100.00
Legal Support Staff non-member
____ Complimentary USD Law School Students*
____ $50.00
Spouses/Guest Dinner only*
*must pre-register
ACCOMODATIONS:
Rooms can be reserved by calling the Grand Falls Resort at 877-511-4386 and ask for reservations in the SD Trial Lawyer Association block. The
SDTLA rate is $99.95/night plus tax.
Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to:
SDTLA Office
PO Box 1154
Pierre, SD 57501-1154
If you have questions, call (605) 224-9292.
Name___________________________________ Address__________________________ City_____________________State_______Zip_______
Telephone______________________________________ Email: __________________________________________
March/April 2014
Page 12
Law School Times
By Kelsea K. Sutton
[email protected]
(605) 830-5039
SDTLA Law Student Liaison
March is usually the busiest month of the entire school year at the law school, and March 2014 is no different. It’s our
own version of March Madness!
The Supreme Court will be visiting for oral arguments the week of March 24th, and we are always reminded of what an
inspiring and accessible bench we have in South Dakota. USD Law students are truly blessed to have the opportunity to
hear the arguments in the comfort of their own courtroom.
The Moot Court Board is hosting their annual 1L Sam Masten Tournament, which will culminate in a final oral argument
round in front of all of the Supreme Court Justices. This is always an exciting time for the first-year students, as well as a
busy time for the Board.
The South Dakota Law Review is hosting its Rural Practice Symposium on March 20th and 21st. The Law Review is
completely indebted to the SD State Bar, the American Bar Association, and the Chief Justice for the incredible success
of this event.
The Trial Team has had a grueling but very rewarding spring. USD’s Capitol City Challenge Trial Team competed
against trial teams from twenty top schools and trial programs during the weekend of February 27 through March 2, 2014
in Washington, DC. USD’s team included 3Ls Swapna Kilani, Shane Andrews, Jen deHueck, and 2L Andrew Fick. At
the end of the tournament, Swapna Kilani received the “Best Defense Advocate Award” for the tournament. Her teammate Shane Andrews tied for third for the same award, only two points behind Swapna. In winning the award, Swapna
outpointed students from such elite schools as Georgetown, Connecticut, Fordham, Cornell, George Washington, Houston, John Marshall, Temple, Villanova, Virginia, William & Mary, and others. This is the second time in the last five
years that a USD student has won this prestigious honor (Alex Hagen won it in 2010).
We also would like to congratulate our John L. Costello National Criminal Trial Competition team of David Sahli, Adam
Shiffermiller, and Kassie McKie who competed in Washington, DC during the weekend of February 6 through 9,
2014. USD’s team earned a spot as one of the 16 octofinalists in the 36-team competition following victories over teams
from Cornell and Mercer. The field was narrowed from 16 to 4 teams following the octofinals. Unfortunately, following a
heated battle, neither USD, nor its opponent The University of Pennsylvania, advanced to the “final four.”
The weekend of March 20 through 23, USD will send sixteen students on four teams to three national trial competitions,
including the National Ethics Trial Competition in Sacramento, CA; the National Criminal Justice Trial Competition in Chicago, IL; and the AAJ Student Trial Advocacy Competition in Omaha, NE.
The entire Trial Team would like to thank the South Dakota Trial Lawyers Association and their members for their continuing generous and steadfast support for their teams. As in previous years, a number of SDTLA members have generously donated their time to help our students prepare for these rigorous national competitions.
Finally, I would like to remind the underclassmen to think about applying for next year’s SDTLA Student Liaison position.
Sometime in April, applications will be called for from the student body. Following the submission of your application,
there will be an interview process to select the liaison. This is an invaluably rewarding position both personally and professionally, as you will get the opportunity to begin to work closely with incredibly accomplished trial lawyers and other
members of the South Dakota State Bar Association. If you would like to hear more about the position, do not hesitate to
call or email me anytime.
March/April 2014
Page 13
South Dakota Trial Lawyers Association
Notice of 2014—2015
MEMBERSHIP DUES
DUE July 1, 2014
CATEGORIES
Check one:
_______ Legal Support Staff …………………. $50.00/ year
________ Law Student…………...………………$10.00/ year
________ 0-2 years in Practice…………………$70.00/year
________ 3-5 years in Practice……..………..$100.00/year
_____ Public atty employed over 2 years*……$100.00/year
______ Over 5 years in Practice …………… $350.00/year
______ Sustaining membership ** …………$700.00/year
______ Subscribing membership *** ……..$125.00/year
Please print or type
Name _________________________________________________ Email Address_______________________
Mailing address______________________________________________________________________________
CITY _____________________________________ State__________________________ ZIP _______________
Telephone _________________________________ Cell number ____________________________________
County _____________________________________ Date Admitted to Bar __________________________
Return to with appropriate dues:
SDTLA
PO Box 1154
Pierre, SD 57501-1154
* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal
government or legal aid association.
** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the
Association for five years. Attendance at the Association’s annual fall seminar is free for sustaining members.
*** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research
companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.
March/April 2014
Page 14
NEW LAWYER REFERRAL LIST
The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in
accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested
in handling due to his or her caseload, area of interest, or the client’s ability to pay.
The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at
the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to
independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys
have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to
them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA
office to join this list.
First Circuit
Kraig L. Kronaizl
Blackburn & Stevens
100 West 4th Street, Yankton, SD 57078
665-5550
Family Law, General Civil Litigation, Some Criminal
Defense
Katie Johnson
PO Box 136
Beresford, SD 57704-0136
763-8013
Family Law, Criminal Defense, Bankruptcy
Second Circuit
Melissa Fiksdal
Jeff Larson Law
400 N Main Ave #207, Sioux Falls SD 57104
275-4529
Family Law, Criminal Defense
Cesar Juarez
Siegel, Barnett & Schutz
PO Box 1286, Sioux Falls, SD 57101
335-6250
Family Law, Criminal Defense & General Civil Litigation
Meghann Joyce
Boyce Greenfield etal
PO Box 5015, Sioux Falls, SD 57117
336-2424
Family law, Civil Litigation and Insurance Litigation
James Nasser
Nasser Law Office
204 S Main, Sioux Falls, SD 57104-6310
335-0001
General civil litigation
Laura Brahms
Kading Kunstle & Goodhope
7400 S Bitterroot Pl #100
Sioux Falls, SD 57108
336-1730
Family Law, Criminal Defense, Worker’s Comp, General Civil Litigation
Katie Johnson
PO Box 136
Beresford, SD 57704-0136
763-8013
Family Law, Criminal Defense, Bankruptcy
Third Circuit
Seamus W. Culhane
Turbak Law Office
1301 4th St NE, Watertown, SD 57201
886-8361
Long Term Care, Homeowner’s, Worker’s Compensation and
other Non-ERISA Insurance Denials
Casey W. Fideler
1301 4th St NE, Watertown, SD 57201
886-8361
Personal Injury, Wrongful Death, &
Tax Implications of Settlements & Judgments
HAVE YOU CHECKED OUT SDTLA’s SOCIAL MEDIA??
The South Dakota Trial Lawyers Association is pleased to announce that it has re-launched its official Facebook page in
an effort to connect and unite more attorneys and legal support staff throughout South Dakota. Videos, pictures, and information about upcoming SDTLA events will be posted regularly. Members are also invited to post questions, comments, articles, etc. on SDTLA’s Facebook wall.
Not yet a SDTLA Facebook page member? Become one today by typing South Dakota Trial Lawyers Association –
SDTLA into your Facebook search function and click JOIN!
2014 SDTLA Fall Seminar
September 25-26, 2014 * Lodge at Deadwood
SAVE THE DATE FOR THE FUN!!!
March/April 2014
Page 15
March/April 2014
Page 16
2014 Legislative Report
By Roger Tellinghuisen, SDTLA Lobbyist
Another year of work by the South Dakota Legislature has drawn to a close. The number of bills introduced was remarkably low this year. There were 261 House bills and 187 Senate bills for a total of 448 which compares to 492 from
the year before. Even more remarkable was the fact that there was virtually no “tort reform” bills introduced. Of the bills
introduced, we actively tracked 43 bills as compared to 66 bills tracked last year. Sara Hartford’s March 18t h Legislative
Update lists all the bills we tracked and gives their status as of that date. As of this writing, I am not aware of the Governor having vetoed any of the bills we were tracking which reached his desk.
To determine the final outcome of a Bill, go to the Legislative Research Council’s website at “legis.state.sd.us”, click on
“Legislative Session”, select “2014” and “Bills”. Then, you can either scroll thru the entire list of bills or you can use the
“Quick Search” feature by typing in the specific bill number you are interested in (without typing in the prefix “HB” or
“SB”). Scroll to the bottom of the bill status and you will see the bill’s final disposition.
Following are some of the more notable Bills that were taken up by this year’s Legislature:
SB74 - An Act to provide for the consideration of joint physical custody of a minor. This bill addresses what
has historically been an emotional topic between opposing sides to this issue. Although bills were introduced in prior
legislative sessions, which mandated a presumption of joint physical custody, they were not favorably acted upon because the prior proposals were viewed as placing the best interest of the child in a secondary position to the interests of
the parents. This year’s bill was brought forward at the instigation of Tom Barnett on behalf of the State Bar. The bill
generally followed a similar law in place in Iowa and input was solicited from representatives of interested parties who
participated in the debates that occurred in prior years. Sen. Dan Lederman, (R-Dist. 16) was also actively involved in
bringing together interested parties to provide their input into the drafting of the bill. The bill establishes a list of 14 factors that the court is to take into consideration in ruling upon a parent’s request for joint custody. It’s also noteworthy
that the bill clearly does not establish a presumption of joint physical custody. The court is still required to determine the
appropriate physical care, custody and control of a minor child based on a determination of the best interests of the
child. Nor does this bill constitute a “substantial change in circumstances justifying the modification of existing custody
orders”. Special thanks to Tom Barnett and Sen. Lederman for their efforts in bringing forward affirmative legislation
which addresses what has heretofore been a perennial issue before the legislature.
HB 1054- An Act to establish consumer protection standards regarding certain insurance claim practices and
to provide for certain penalties. This Bill was a “flag ship” piece of legislation offered by the Division of Insurance.
Although the original language that was going to be offered by the Division was much more comprehensive than what
was ultimately introduced, the Bill nonetheless represents the first consumer protection legislation that the Division was
successful in getting through the legislative process in almost 15 years. While it doesn’t cover all the abuses that our
organization would have liked to have addressed, it does represent a positive step forward even if only a “baby step”.
As you may already have guessed, a bill of this nature attracts a lot of attention from the insurance industry which is
heavily represented in the ranks of the lobbyist corps. The bill sets out 13 “acts” which if committed by an insurer in violation of the act, constitutes an “unfair claims practice”. The bill specifically provides that the act may not be construed to
create or imply a private cause of action and no disposition under the act or any rule promulgated pursuant thereto may
be introduced as evidence in any civil litigation. The act further states however, that it does not alter the rules of evidence under Title 19. It remains to be seen whether the act offers more protection and remedies to insurance consumers that what is currently available.
HB 1183 – An act to prospectively repeal the death penalty. As the name implies, this Bill would have prospectively
repealed the death penalty. The Bill was introduced by Rep. Steve Hickey R-Dist. 9 and Sen. Billie Sutton D-Dist. 21.
Appearing as proponents of the Bill were a number of “traditional” opponents to the death penalty and former Attorneys
General Mark Meierhenry and myself. The testimony from both sides was very emotional and the House State Affairs
committee struggled with a decision. In the end, the Bill was killed on a non-partisan 7 to 6 vote. I suspect we’ll see this
one coming back next year.
SB 118 - An Act to revise certain criminal penalties for intentional damage to private property. This Bill amended
the penalties for intentional damage to private property. The penalties for intentional damage will now follow the same
schedule that is otherwise applicable to the theft of property.
HB 1251 – An Act to protect citizens, businesses, clergy, and other persons of South Dakota regarding actions
pertaining to views on sexual orientation or preference and to provide for their defense. This Bill was introduced
Continued next page
March/April 2014
Page 17
Continued from previous page
by Rep. Lance Russell, (R-Dist. 30) and Sen. Phil Jensen, (R-Dist. 33). Although the Bill is couched in terms of
“protecting” persons from lawsuits arising out of their expression of religious beliefs, religious tenets, or religious doctrines on the subject of sexual orientation”, it was viewed as an expression of “anti-gay” doctrine. This Bill did not make
it out of the first committee.
SB 128 – An Act to protect the citizens and businesses of South Dakota regarding speech pertaining to views
on sexual orientation and to provide for the defense of such citizens and businesses. This Bill was introduced
by Sen. Phil Jensen, (R-Dist. 33) and Rep. Blaine “Chip” Campbell, (R-Dist. 35). This Bill could be called a companion
to HB 1251 although the wording was a little different and it was more onerous in a couple of respects. First, the Bill
would have prohibited anyone from bringing an action against another person for expressing their views on the subject
of sexual orientation. Secondly, it would have prohibited any person from bringing suit against a business for refusing
to serve a person or couple based on sexual orientation. Further, no business could be compelled to employ a person
based on sexual orientation. Third, the Bill provided that in the event someone did bring suit, the judge presiding over
the case was to: 1) dismiss, with prejudice, any suit in which the defendant is charged for expressing the defendant's
religious beliefs on the subject of sexual orientation or advocating negative views on any specific sexual orientation; 2)
determine the lawsuit to be frivolous; 3) levy punitive damages on any person who brings such a suit in an amount of
no less than two thousand dollars; and, 4) require the person to pay court costs for both parties. In addition, if requested, the Attorney General was to defend any person or business brought into Federal or State court in violation of the
act. For what should be rather obvious reasons, this Bill did not make it out of the first committee hearing either.
At the time of writing this report, I am aware that the Legislature appears to have reached a compromise on a “texting
while driving ban”. Although there were two competing bills, one in the House and one in the Senate, I haven’t been
able to find on the LRC’s website a copy of the version that reportedly passed on March 13 th. However, based on the
news reports (rely on at your own risk), it appears the ban would be a “secondary offense” (meaning it could not serve
as the basis for a stop by law enforcement) and the maximum fine would be $100.
Although last year we saw a large number of “new” legislators in both houses, it was evident that some of the
“freshman legislators” were feeling more comfortable with the process. We still don’t have any lawyers in the Senate
which continues to make SDTLA’s advocacy of its mission more difficult. In the House, we’re in a little better shape.
Speaker Brian Gosch, (R-Dist. 32) was very helpful again this year. Although Rep. Gosch’s term as Speaker of the
House will now come to an end, I’m thankful that he intends to run for reelection and hopefully will continue to serve in
a leadership role.
I would also like to once again make special mention of two freshman legislators – Representatives Mike Stevens, (RDist.18) and Timothy Johns, (R-Dist. 31). Both are lawyers (Rep. Stevens practices in Yankton and Rep. Johns is a
retired circuit court judge who practices in Lead) and both are on the House Judiciary committee. Once again, they
both did a great job in committee and on the floor. It’s apparent that their fellow committee and House members regard
them and their opinions with a great deal of respect. I am happy to report that they will both seek reelection.
Rep.’s Marc Feinstein, D-Dist. 14 and David Lust, R-Dist. 34 will not be returning next year due to term limits. I would
like to thank both Rep. Feinstein and Rep. Lust for their service to the State of South Dakota these last 8 years. Former Sen. Lee Schoenbeck is running for the House in Dist. 5, so we should give Lee our support and hopefully, he’ll be
back in Pierre next year to help us “fight the good fight”.
In closing I would once again like to thank all of you who took the time to comment on specific legislation. Although this
year was one of the quietest I remember from our standpoint, it’s still really important that our membership stay in tune
with what’s happening at OUR legislature. Thank you to Sara for keeping the Legislative Update up-to-date and forwarding the questions and comments that come in while I’m in Pierre. Once again, thank you to all of you for allowing
me to act as your lobbyist once again this year. Lastly, “thank you” to my wife, Marya, for putting up with me being gone
for the better part of two months in the dead of winter while I get to do something I so thoroughly enjoy.
ROASTERS OF BOB MORRIS NEEDED May 8, 2014
Contact Sara for details….
March/April 2014
Page 18
Continued from page 8
You may want to memorize this rule as it will not only improve your relationship with others you deal with on a daily basis, but it could also save you from an appearance before the disciplinary board. Fortunately, in South Dakota, we have
few reported cases annotated under this rule. In 2013, the Disciplinary Board only reported 1 complaint out of 94 dealing
with a misrepresentation to the court. In 2012, that number was 2 out of 91 complaints. In part, this may be due to the
reluctance of lawyers and judges to report violations.
The South Dakota Supreme Court has defined “candor” as:
‘Candor’ means to treat a subject with fairness, impartiality, and to be outspoken, frank, and veracious, and is
synonymous with other terms describing morality.” Joiner v. Joiner, 87 S.W.2d 903, 905 (Tex.Civ.App. 1935),
rev'd on the issue of property division, 131 Tex. 27, 112 S.W.2d 1049 (Tex.Com.App. 1938).
In the Matter of Dorothy, 2000 S.D. 23, 605 N.W.2d 493, ¶51, p. 509. Furthermore, the Court went on to explain why it
is so important for an attorney to be candid with the court:
We cannot overemphasize the importance of attorneys in this state being absolutely fair with the court. Every
court ... has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it. Therefore,
candor and fairness should characterize the conduct of an attorney at the beginning, during, and at the close of
the litigation.
Bihlmeyer, 515 N.W.2d at 239; see also Burns v. Windsor Ins. Co., 31 F.3d 1092,1095 (11th Cir.1994) (noting
every lawyer has a duty of candor to the tribunal); United States v. Associated Convalescent Enterprises, Inc.,
766 F.2d 1342, 1346 (9th Cir.1985) (stating an attorney has duty of good faith and candor in dealing with the
judiciary). “Selective omission of relevant information, ... ‘exceeds the bounds of zealous advocacy and is wholly
inappropriate.’ ” Gum v. Dudley, 202 W.Va. 477, 505 S.E.2d 391, 400 n.14 (1997) (quoting Montgomery v. City
of Chicago, 763 F.Supp. 301, 307 (N.D.Ill.1991)). Attorneys have a responsibility to present the record with accuracy and candor. Pinkham v. Sara Lee Corp., 983 F.2d 824, 833 (8th Cir.1992).
Upon a finding by the Court that the attorney has indeed violated an ethical rule, the disciplinary options available are
found in SDCL 16-19-35:
Misconduct shall be grounds for:
(1) Disbarment by the Supreme Court;
(2) Suspension by the Supreme Court for an appropriate fixed period of time, or for an appropriate fixed period
of time and an indefinite period concurrently or thereafter to be determined by the condition imposed by the judgment.
No suspension shall be ordered for a specific period in excess of three years;
(3) Placement on a probationary status by the Supreme Court for a stated period, or until further order of the
court, with such conditions as the court may specify;
(4) Public censure by the Supreme Court; or
(5) Private reprimand by the Disciplinary Board.
The more severe punishments are reserved for more egregious conduct. In one case, the referee recommended a private reprimand; however, the Court concluded that due to his “general lack of respect for the judicial system, its judges,
his total lack of remorse and lack of candor before this tribunal” the appropriate discipline was public censure. Further,
he was ordered to pay all of the costs associated with the disciplinary case. This amounted to the sum of $9,308.05.
Justice Sabers wrote a concurrence in this case that due to the attorney’s lack of remorse and insistence that he had
done nothing wrong, the Court was justified in imposing a suspension:
[His] conduct demonstrates an ability to place a spin on the “facts” which may be brilliant legal gymnastics. However, the same conduct also shows a lack of professional judgment for such a seasoned lawyer. At times, it
shows he was not smart enough to know when to quit. Obviously, he should have quit long before he started his
criticism of the circuit court Judges.
Clearly, none of us wants to get into this personal and professional land mine. It is our duty to keep the courts informed
when a rule has been violated, either by us or our clients. To quote one of my favorites—Ben Franklin: an ounce of
prevention is worth a pound of cure. The best practice is to be “outspoken, frank, and veracious” when dealing with the
court and if a violation occurs, correct it as soon as you are aware of it. And always remember, your word is your bond.
March/April 2014
Page 19
Continued from page 9
Headline: This is commonly implemented under the H1 tag and is typically the most prominent copy on a given
page. Place your keyword within the headline (H1 tag) for a better user experience and smoother search engine indexation.
Body Text: Including your target keyword within the body of your post is highly critical. This indicates that your material is relevant and comprehensive. But don’t overdo it! Search engines are highly intelligent and can spot unnatural and overuse of keywords.
URL: Place your keyword within your URL to further reaffirm to search engines that your material is specific to your
intended topic.
Images and Image ALT Attributes: Placing images within your content visually conveys the topic to your audience
and also tells search engines that your material is more dynamic than simple text. Since search engines can’t
actually see images, they rely on ALT attributes, so be sure to include your target keyword.
3. Build a Back Link Profile
A search engine’s algorithm is solely focused on providing the most relevant search results to the end user. A significant indicator of relevance is the number of high quality links pointing to your website. By creating great content, you’ll
naturally acquire links from other sites interested in sharing your material. Earning backlinks from other authoritative
websites lets the search engines know that you’re a reliable and trustworthy source of relevant content.
4. Engage in Social Media
Promoting your content is just as important as writing it. Social media is becoming an increasingly significant factor in
search engine ranking algorithms. Having many shares, likes, and re-tweets can boost an article to a top ranking and
demonstrate your authority on a legal issue. Moreover, social media is a great avenue to assert your reputation and
showcase your knowledge and expertise. Join groups on LinkedIn and communities on Goolge+, share your articles on
Facebook and Twitter, and engage in conversations about legal issues relevant to your industry.
5. Analysis
Understanding what works is critical to improving and streamlining your SEO efforts. Analytical tools show how each
page ranks on the major search engines, report which keywords search engines see when crawling your website, monitor websites for malware and crawl errors, and troubleshoot poor SEO performance. Moreover, tools such as Moz Analytics and Google Analytics, will provide you with a wealth of data necessary to evaluate and adjust your SEO strategy
accordingly. SEO blogs are key resources that will keep you up-to-date with Google’s notorious and frequent changes
to their search rank algorithm.
About the Author
Inna Kraner is the Managing Editor of The Expert Institute, an innovative technology-driven expert referral company seeking to change how attorneys
connect with expert witnesses. The Expert Institute custom recruits the world's preeminent subject matter experts, such as tenured professors from
Ivy League universities, medical directors at top tier hospitals, and specialists who are leaders and authorities in their field.
NOTE TO YOUR ACCOUNTANT:
The NON-Deductible percentage
Of your paid dues for the FY 12/13
39.64%
March/April 2014
Page 20
Continued from page 6
Issue #2 : Ramifications on clients in South Dakota
Under Federal Law and South Dakota state law, possession of marijuana is strictly illegal in all contexts, medical and
recreational. Furthermore, State v. Shroeder, permits a defendant to be convicted of unauthorized possession of a controlled drug or substance when the only evidence is from the ingested or absorbed unauthorized substance in the defendant’s body. 2004 S.D. 21, ¶14. This means that a positive urinalysis, revealing the presence of a controlled substance in a defendant’s urine, is sufficient to support a possession conviction.
SDCL § 22-42-1 defines marijuana as “all parts of any plant of the genus cannabis, whether growing or not, in its natural and unaltered state, except for drying or curing and crushing and crumbling. The term includes an altered state of
marijuana absorbed into the human body […].” (Emphasis added). By way of SDCL § 22-42-15 (and arguably 22-42-6)
any person that steps into South Dakota with marijuana in their system, usually detected by way of a metabolite via urinalysis called cannabinoid, is guilty of violating South Dakota law. Despite the fact that the immediate intoxicating effects are far removed, the metabolite generated from marijuana use remains in the system, detected by urinalysis, for 58 days if used once, 11-18 days if used 2-4 times per month, and daily usage means the metabolite cannabinoid will
remain in the system for 49-90 days. Pass Your Drug Test, Drug Use Time Table, available at http://
www.passyourdrugtest.com/timetable.htm, (2014). Also note, the figures listed above are very general and it should be
noted that every individual extracts chemicals from their body at a different rate based on age, weight, physical activity
and etc.
Surely all can agree that marijuana use is legal (for your average adult citizen), recreationally in Colorado. See Colorado Amendment 64. It is also legal in the absence of a prescription in Colorado. Id. SDCL § 22-42-15 states “the venue
for a violation of this section exists in either […] or the jurisdiction in which the substance was detected in the body of
the accused.” Therefore, passing into South Dakota with the metabolite cannabinoid in your system becomes illegal by
virtue of engaging in legal conduct elsewhere. I remind all, that my goal here is to present this in an objective fashion. I
am not attempting to advocate as to any issue presented herein. However, for purposes of getting into ramifications to
clients, this is a necessary baseline to begin presentation of possible issues and etc.
First, the baseline set of facts above has other potential means to spur additional criminal violations. Colorado, Washington and other liberal marijuana states make little to no distinction between marijuana and hashish. In South Dakota,
hashish and hash oils are Schedule I controlled substances and possession of a controlled substance (as defined
above) is a felony. Though difficult to prove, on an academic level, an individual could also be guilty of committing a
felony by passing into South Dakota for engaging in legal conduct some 250 miles away, by virtue of remnants in a defendant’s system. Moreover, in the event someone came into knowledge of the fact that an individual legally smoked
hashish or hash oil (as defined by SDCL §22-42-1(1)) in Colorado or elsewhere, is that person with knowledge of said
fact guilty of violating SDCL § 22-11-121 , Misprision of a Felony?
Aside from criminal ramifications, other potential debates can be spurred from the above-described set of facts. Long
recognized as a fundamental right is a citizen’s right to interstate travel, grounded upon the Privileges and Immunities
Clause of Article IV, Section 2, of the United States Constitution. Edwards v. People of State of California, 314 U.S.
160 (1941). “The nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all
citizens be free to travel throughout the length and breadth of our land, uninhibited by statutes, rules, or regulations
which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629 (1969). Moreover, the
right to travel is “… a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id. at 643. Is it too
much of a stretch to argue that SDCL § 22-42-1(1); 22-42-5; 22-42-5.1 and 22-42-15 place a restriction on a citizen’s
fundamental right to travel requiring application of the strict scrutiny test? See Jones v. Helms, 452 U.S. 412 (1981);
U.S. v. Carolene Products Co., 304 U.S. 144 (1938).
Like it or not, the politics of marijuana are likely to be front and center at the federal, state and local level for the foreseeable future. While the federal government lists marijuana as illegal, the IRS has made provisions to collect taxes
from the marijuana businesses that are operating legally under different states’ laws. The Rapid City Journal reported
on March 13, 2014 that “[j]ob seekers are expected to turn out in droves for a marijuana job fair in Denver.” Rapid City
Journal, Job fair being held for pot industry, available at http://rapidcityjournal.com/news/latest/job-fair-being-held-forpot-industry/article_09653a5e-10cd-550a-a3cc-24a75bb17964.html, (2014). According to Forbes magazine, Colorado
will see more than $40 million in additional tax dollars in 2014. “To put that in perspective, that’s approximately 1% of
the total annual budgets for Delaware, South Dakota, Montana or West Virginia.” Forbes, It’s No Toke: Colorado Pulls
In Millions In Marijuana Tax Revenue, available at http://www.forbes.com/sites/kellyphillipserb/2014/03/11/its-no-tokecolorado-pulls-in-millions-in-marijuana-tax-revenue/, (March 11, 2014). Regardless of where you personally fall on the
spectrum, expect new developments, debates and issues to ensue as marijuana legislation continues to transform.
FOOTNOTE ON PAGE 21
March/April 2014
Page 21
Continued from page 2
added bonus of meeting at least three fundamental components of the SDTLA mission: it promotes a higher standard
of ethics; it promotes fellowship and pride in our profession; and it encourages other lawyers. So “Thank you!” to every
lawyer and judge out there who takes a few moments to exercise patience under pressure, to commend good work or
to offer a constructive criticism: your positive input might be the reason that lawyer works a little harder for the rest of
the day and can wholeheartedly say to a promising student: “You really must apply to law school: this is a wonderful
profession where you will get to help countless people and make a difference.”
To fuel up your enthusiasm about being a trial lawyer, we have reprinted SDTLA super-member Jim Leach’s stirring
remarks in response to yet another rant against our profession. On behalf of the SDTLA, Jim, thank you so much for
taking the time to articulately express why lawyers make a positive difference in South Dakota. Jim is an excellent example of how to combat the negative lawyer stereotypes: he walks the walk.
Miss the thrill of sharing war stories with other lawyers who want to learn how to be better lawyers? Feel like you are
floundering on procedure or having technical difficulties on evidence, drafting or effective trial presence? Come to the
SDTLA “Catching Fire” seminar on May 8-9 in Sioux Falls. [Note: this should say the Sioux Falls area. Our Board of
Governors listened to and appreciated the concerns that some of our most esteemed members raised about having this
event at the hotel location near Sioux Falls but across the border into Iowa. We made a choice based on budget when
we booked this venue, but in the future, we will be more conscious of our South Dakota roots. We do hope that you
will give us this one “build it and they will come” pass because as you can see from our schedule, our CLE committee
has assembled an all-star line up of educational and inspiring speakers. ]
Admittedly, we borrowed our seminar theme from the “Hunger Games” books and movies because they are presently
popular and highly advertised, and …well… the flame advertising for the seminar looks pretty cool. Be assured that we
are not advocating that SDTLA members should be trained to either kill or be killed by their opponents! The SDTLA
primarily exists to encourage professionalism and sincere friendships among lawyers, opposing counsel, and judges.
For that reason, this seminar will feature the very best of SDTLA professionalism. Participation in this SDTLA seminar
will give you an advantage – a few more valuable professional weapons, if you will -- in terms of preparation and trial
technique. The program is designed to help both new and experienced lawyers to work more efficiently and creatively:
it offers a mix of current advocacy checklists, how-to explanations, advice from an experienced trial judge on how to be
a great trial lawyer, interactive panel discussions and intellectual approaches to modern legal problems such as same
sex union issues, co-habitation agreements and representing a Drug Court client. This SDTLA CLE seminar will fire
you up as a trial lawyer and spark your enthusiasm as you strengthen your professional networks. Invest in your professional enthusiasm and sign up today!
FOOTNOTE FROM PAGE 20 Rohl article
1
SDCL 22-11-12 states:
Any person who, having knowledge, which is not privileged, of the commission of a felony, conceals the felony, or does not immediately disclose the felony, including the name of the perpetrator, if known, and all of the other relevant known facts, to the
proper authorities, is guilty of misprision of a felony. Misprision of a felony is a Class 1 misdemeanor. There is no misprision of
misdemeanors, petty offenses, or any violation of § 22-42-5.1.
SDCL 22-42-5.1, ingestion of a controlled substance as felony, is specifically exempted from prosecution by 22-11-12. However, recall State v.
Shroeder, whereby a conviction of 22-42-5, which is not exempted, was upheld because:
Giving plain meaning to this amended definition of “controlled drug or substance,” Schroeder’s argument regarding a legal distinction between “use” and “possession” is unpersuasive. Under the new statutory framework, SDCL 22-42-5 prohibits any person from “knowingly possess[ing] a controlled drug or substance[.]” (Emphasis added.) Reading this possession statute together
with the amended definition of a controlled drug, possession may now occur if a person knowingly possesses “an altered state of
a drug or substance absorbed into the human body.” SDCL 22-42-1(1), 22-42-5. We therefore agree with the trial court that “[t]
his recent amendment to SDCL 22-42-1(1) clearly expresses the intent of the South Dakota Legislature to reject the historic dichotomy between ‘possession’ and ‘use’ in the criminal law.” It also “permit[s] a defendant to be convicted of ‘unauthorized possession’ of a controlled drug or substance when the only … evidence is from the ingested or absorbed unauthorized [substance
in] the defendant’s body.”
2004 S.D. 21, ¶14. Given the “intent of the South Dakota Legislature,” in that 22-42-5 is expressly left out of 22-11-12, is a hypothetical individual
guilty, if acquiring knowledge that an individual smoked hashish or hash oils in a state where it is legal, according to South Dakota case law and 2211-12?
March/April 2014
Page 22
NOTICE OF NOMINATIONS
The Elections Committee of the South Dakota Trial Lawyers Association
is seeking nominations for the following offices:
President-Elect
Secretary-Treasurer
AAJ Delegate 2014-16
four (4) At Large Members of the Board of Governors for the 2014-16 term
one (1) At Large Member of Board of Governors in practice
not more than three years/2014-15 term
NOTE: This notice is in lieu of the call for nominations from the floor during the
2014 SDTLA Annual Meeting, June 19, 2014.
If you wish to nominate someone for one of the above offices, fill out the nomination form below and
return it to the SDTLA office. All nominations must be received by May 1, 2014.
All nominees will be notified of their nomination by mail.
A sample ballot will be published in the May/June issue of the BARRISTER.
**********
SDTLA NOMINATION FORM
I, ______________________________________, of _________________________, nominate
__________________________________________________ for the office of
_______________________________________________________________________________
He/She is a member of the __________________________________________ firm
and his/her address and email address is _____________________________________________.
RETURN TO by May 1, 2014:
Elections Committee
South Dakota Trial Lawyers Association
PO Box 1154
Pierre, SD 57501-1154