South Dakota Legislative Research Council
Volume 24 Monday, 8:00 a.m., March 16, 1998
A COPY OF EACH REGISTER IS FILED IN THE OFFICE OF THE SECRETARY OF STATE.
NOTICES OF PROPOSED RULES: None.
FILINGS IN THE SECRETARY OF STATE'S OFFICE:
DEPARTMENT OF COMMERCE AND REGULATION: STATE BANKING COMMISSION reduced the semiannual examination fee for state-chartered banks, ARSD 20:07:06:01.
History--Notice: 24 SDR 97, January 9, 1998
Hearing: February 10, 1998
Filed: March 9, 1998
Effective: March 29, 1998
SOUTH DAKOTA LOTTERY: SOUTH DAKOTA LOTTERY COMMISSION established requirements for Cash 4 Life game, ARSD 48:03:11:01-03.
History--Notice: 24 SDR 105, February 4, 1998
Hearing: February 27, 1998
Filed: March 10, 1998
Effective: March 30, 1998
Note: A copy of the rules may be obtained directly from the above agencies. Write to the agency at the address given under "Notices of Proposed Rules." There is no charge for proposed rules. The following agencies have permission from the Interim Rules Review Committee to charge for adopted rules: the Division of Insurance, the Cosmetology Commission, the State Board of Examiners in Optometry, the State Plumbing Commission, the Board of Nursing, the Department of Social Services, the State Electrical Commission, the South Dakota Board of Pharmacy, the Real Estate Commission, the Gaming Commission, the Department of Commerce and Regulation for commercial driver licensing, the Department of Labor for Article 47:03, and the Department of Revenue.
Supreme Court Rules:
The following four Supreme Court rules are dated March 5, 1998, were filed with the Secretary of State on the same date, and will be effective April 1, 1998.
Supreme Court Rule 98-1,"In the Matter of the Adoption of a New Guideline to be Added to the Guidelines for Judicial Campaigns (Appendix to SDCL 12-9)," adopts a new rule that reads as follows:
Every person who files a petition to have his or her name placed on the ballot as a candidate for judicial office, shall by May 15th of the year in which the petition was filed complete a two-hour course on campaign practices, finance, and ethics sponsored and approved by the Judicial Qualifications Commission. Within thirty days of completing the course, the candidate shall certify to the commission that he or she has completed the course and understands fully the requirements of South Dakota law and the Code of Judicial Conduct concerning campaign practices for judicial office. A person subject purely to retention election or a circuit court candidate who has no opposition is exempt from application of this rule.
Supreme Court Rule 98-2,"In the Matter of the Adoption of a New Rule to be Designated as Rule IV of the Rules of Procedure of the Judicial Qualifications Commission (Appendix to SDCL 16-1A)," adopts a new rule that reads as follows:
IV. JUDICIAL ELECTIONS
1. Special Committee - Proceedings and Authority.
In every year in which a circuit court judicial election is held in this State and at such other times as the Commission may deem appropriate, a Special Committee on Judicial Election Campaign Intervention ("Special Committee") shall be created whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The membership of such committee shall consist of five (5) members. Two (2) members shall be appointed by the Chair of the Commission and shall be former members of the Commission. Two (2) members shall be appointed by the Chairperson of the Disciplinary Board of the State Bar of South Dakota ("the Board") and shall be former members of the Board. The fifth member shall be appointed by the Chief Justice and shall be a retired circuit court judge or a retired Supreme Court Justice. Any action taken by the Special Committee shall require a majority vote. The objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority:
(a) Within ten (10) days of the effective date of this rule or within the ten (10) days after formally announcing and/or officially qualifying for election or re-election to any judicial office in this State (whichever is earliest), all candidates, including incumbent judges, shall forward written notice of such candidacy, together with an appropriate mailing address, to the Commission. Upon receipt of such notice, the Special Committee shall cause to be distributed to all such candidates by certified mail-return receipt requested copies of the following: Canon 5 of the Code of Judicial Conduct; this Rule 30; summaries of any previous opinions issued by the Special Committee, or the Supreme Court of South Dakota, which relate in any way to campaign conduct and practices; and a form acknowledgment which each candidate shall promptly return to the Commission and therein certify that he/she has read and understands the materials forwarded and agrees to be bound by such standards during the course of the campaign. A failure to comply with this section shall constitute a per se violation of this Rule authorizing the Commission to immediately publicize such failure to all candidates in such race and to all appropriate media outlets. In the event of a question relating to conduct during a judicial campaign, judicial candidates are encouraged to seek an opinion from the Special Committee before such conduct occurs.
(b) Opinions as to the propriety of any act or conduct and the construction or application of Canon 5 may be provided by the Special Committee upon request from any judicial candidate. If the Special Committee finds the question of limited significance, it may provide an informal opinion to the questioner. If, however, it finds the questions of sufficient general interest and importance, it may render a formal opinion, in which event it shall cause the opinion to be published in complete or synopsis form. Furthermore, the Special Committee may issue formal opinions on its own motion under such circumstances as it finds appropriate. The Special Committee may decline to issue an opinion when a majority of the Special Committee members determine that it would be inadvisable to respond to the request and to have so confirmed in writing their reasoning to the person who requested the opinion. All formal opinions of the Special Committee shall be filed with the Supreme Court and shall be a matter of public record except for the names of the persons involved, which shall be excised.
(2) Both formal and informal opinions shall be advisory only; however, the Commission, the Board and the Supreme Court shall consider reliance by a judicial candidate upon the Special Committee opinion.
(c) Upon receipt of a complaint or otherwise receiving information facially indicating a violation by a judicial candidate of any provision of Canon 5 of the South Dakota Judicial Code of Conduct during the course of a campaign for judicial office, the secretary or chair of the Commission shall immediately forward a copy of the same by facsimile, if available, and U.S. mail to the Special Committee members and said Committee shall:
(1) seek, from the complainant and/or the subject of the complaint, such further information on the allegations of the complaint as it deems necessary;
(2) conduct such additional investigation as the Committee may deem necessary;
(3) determine whether the allegations of the complaint warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization believed to be engaging in unethical and/or unfair campaign practices; and if not, to dismiss the complaint and so notify the complaining party;
(4) if a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized:
(i) to immediately release to all appropriate media outlets, as well as the complaining party and the person and/or organization complained against, a public statement setting out the violations believed to exist and the failure by the candidate and/or organization to honor the cease-and-desist request; and/or
(ii) to refer the matter to the full Commission or the Board for such action as may be appropriate under the applicable rules.
(d) All proceedings under this Rule shall be informal and non-adversarial, and the Special Committee shall act on all complaints within ten (10) days of receipt, either in person; by facsimile, by U.S. mail; or by telephone.
(e) Except as hereinabove specifically authorized, the proceedings of the Special Committee shall remain confidential as provided in Commission Rule III 1., and in no event shall the Special Committee have the authority to institute disciplinary action against any candidate for judicial office, which power is specifically reserved to the full Commission or the Board under applicable rules.
(f) The Committee shall after conclusion of the election distribute to the Commission and the Board copies of all complaints and all proceedings relating thereto.
Supreme Court Rule 98-3,"In the Matter of the Adoption of a New Rule to be Designated as Rule V of the Rules of Procedure of the Judicial Qualifications Commission (Appendix to SDCL 16-1A)," adopts a new rule that reads as follows:
The members of the Special Committee and Commission, their counsel, and all staff persons assisting them shall have absolute immunity from civil liability for all acts undertaken in the course of their official duties pursuant to these rules. Complaints submitted to the Commission or the Special Committee, shall be absolutely privileged, except as specifically authorized by the Commission's rules. No civil action shall be instituted predicated on a violation of the Commission rules.
Supreme Court Rule 98-4,"In the Matter of the Adoption of a New Rule to be Designated as Rule VI of the Rules of Procedure of the Judicial Qualifications Commission (Appendix to SDCL 16-1A)," adopts a new rule that reads as follows:
VI. JUDICIAL ETHICS COMMITTEE
1. Judicial ethics committee and opinions.
(a) There shall be an ethics committee of the South Dakota judiciary consisting of two circuit court judges and one magistrate judge. The judicial members shall be selected at the annual judges association meeting. Each member shall serve for a term of three years from the date of the election. A chairperson shall be elected annually by a majority vote of the ethics committee.
(b) Opinions as to the propriety of any act or conduct and the construction or application of any canon shall be provided by the committee upon request from any justice, judge or magistrate, except as to matters relating to judicial campaigns which shall be the exclusive jurisdiction of the Special Committee created in Rule 30. If the committee finds the question of limited significance, it shall provide an informal opinion to the questioner. If, however, it finds the questions of sufficient general interest and importance, it shall render a formal opinion, in which event it shall cause the opinion to be published in complete or synopsis form with the names of the persons involved excised. Likewise, the committee may issue formal opinions on its own motion under such circumstances as it finds appropriate. All opinions shall be adopted by a majority vote of the members of the Committee. If a majority vote cannot be obtained, no opinion shall be issued.
(c) Both formal and informal opinions shall be advisory only; however, the Commission and the Supreme Court shall consider reliance by a justice, judge or magistrate upon the ethics committee opinion.
The following twenty-two Supreme Court rules are dated March 10, 1998, were filed with the Secretary of State on the same date, and will be effective July 1, 1998.
Supreme Court Rule 98-5,"In the Matter of the Adoption of a New Rule to be added to SDCL 15-6," adopts a new rule that reads as follows:
Roman numerals may not be used to number paragraphs in pleadings. The use of Roman numerals in pleadings is restricted to use in conjunction with persons' names and in lower case use in prefaces, forewords, prologues, and epilogues.
Supreme Court Rule 98-6,"In the Matter of the Amendment of SDCL 15-11-11," amends that section to read as follows:
15-11-11. Dismissal for want of prosecution. The court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term "record," for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsel which justifiably result in delays in prosecution.
Supreme Court Rule 98-7,"In the Matter of the Amendment of SDCL 16-16-7.3," amends that section to read as follows:
16-16-7.3. Order of admission -- Duration. If the Supreme Court shall find that the applicant is of good moral character and otherwise qualified to practice law, the Court may make an order of admission to be effective upon the filing of the oath of attorney in the office of the clerk.
The admission to practice under this section shall remain in effect until the occurrence of the earliest of the following events:
(1) The failure to sit for the first bar examination administered by the board of bar examiners subsequent to the order of admission; or
(2) The announcement by the board of bar examiners of this state of the results of the first bar examination following the applicant's admission under this section, provided, however, that as to any applicant who passes such examination his or her admission under this section shall continue in effect for sixty days, during which time applicant may proceed to be admitted to practice pursuant to' 16-16-17; or
(3) The termination of the applicant's employment with the legal aid bureau or public defender agency under which the applicant was admitted under this section; or
(4) The termination by the Supreme Court of the applicant's admission under this section.
It shall be the duty of the supervising attorney of the legal aid bureau or public defender agency by whom such attorney is employed under' 16-16-7.2 to inform the Supreme Court immediately of the termination of employment of such attorney admitted to practice pursuant to this section.
For the purpose of subdivisions (1) and (2) above, the bar examination referred to means the combined Multistate Essay Examination, Multistate Performance Test, and Multistate Bar Examination administered by the board of bar examiners.
Supreme Court Rule 98-8,"In the Matter of the Amendment of SDCL 16-16-11," amends that section to read as follows:
16-16-11. Re-examination after three failures prohibited. An applicant who fails three times to pass the examination may not be permitted to take another examination except by permission of the Supreme Court.
Supreme Court Rule 98-9,"In the Matter of the Amendment of SDCL 16-16-13," amends that section to read as follows:
16-16-13. Fees payable with application for admission -- Disposition of fees. An applicant for an admission on examination shall pay a fee of three hundred dollars, and a fee of one hundred seventy-five dollars for subsequent examinations. A late fee of seventy-five dollars shall be assessed for applications filed after the filing deadline. If an applicant fails to appear for the examination, the fee paid shall only be applied to the next scheduled combined MEE, MPT and MBE. The fees thus paid to the secretary shall be retained in a special fund and shall be paid out by the secretary on order of the chief justice for the compensation and necessary expenses of the board of bar examiners.
Supreme Court Rule 98-10,"In the Matter of the Amendment of Regulation 1 of the Regulations of the Board of Bar Examiners (Appendix to SDCL 16-16)," amends that section to read as follows:
1. Application for Admission to Practice Law. Each applicant for admission to practice law must file with the secretary of the Board of Bar Examiners a written application, together with five complete machine or photo copies thereof, in the form prescribed by the Board of Bar Examiners. Such application and copies thereof shall be filed by November 15 for the February examination and April 15 for the July examination and shall be accompanied by the fee prescribed in the applicable rules of court and a recent photograph of the applicant. The Board of Bar Examiners in its discretion may waive the filing deadline for good cause shown and supported by affidavit and late fee, provided, however, that no application will be considered unless filed by December 15 for the February examination and May 15 for the July examination.
Supreme Court Rule 98-11,"In the Matter of the Amendment of Regulation 3 of the Regulations of the Board of Bar Examiners (Appendix to SDCL 16-16)," amends that section to read as follows:
3. Bar Examination; Subjects.
All applicants are required to take the bar examination which consists of the Multistate Essay Examination (MEE), the Multistate Performance Test (MPT), the Multistate Bar Examination (MBE), and the Multistate Professional Responsibility Examination (MPRE).
The MEE is a three-hour examination consisting of six 30-minute essay questions which will test six subject areas:
Conflicts of Law
Wills, Trusts & Future Interests
The MEE will test both general and South Dakota principles of law.
The MPT consists of two ninety-minute questions which test the fundamental skills of problem solving, legal analysis and reasoning, factual analysis, communication, organization and management of a legal task, and recognizing and resolving ethical dilemmas. Each question shall contain all of the resource material necessary to complete the performance examination. The MPT will test both general and South Dakota principles of law.
The MBE is an objective six-hour examination containing 200 multiple-choice test questions covering the subjects:
Constitutional Law Contracts
Criminal Law Evidence
Real Property Torts
The MPRE consists of 50 multiple-choice test questions and measures an applicant=s knowledge of the ethical standards of the legal profession.
Supreme Court Rule 98-12,"In the Matter of the Amendment of Regulation 4 of the Regulations of the Board of Bar Examiners (Appendix to SDCL 16-16)," amends that section to read as follows:
4. Passing Score. The combined score of the MEE and MPT is to be given equal weight as the MBE score utilizing the standard deviation method to determine an applicant's final score on that portion of the bar examination. A separate passing score is set for the MPRE.
The passing grade on the combined MPT, MEE and MBE and on the MPRE shall be determined by the Board of Bar Examiners, which determinations shall be made in advance of the examination.
An applicant who fails to attain a passing score on the combined MPT, MEE and MBE and who applies for a subsequent bar examination shall be required to take the MPT, MEE and MBE portions of the subsequent examinations.
Supreme Court Rule 98-13,"In the Matter of the Amendment of Regulation 5 of the Regulations of the Board of Bar Examiners (Appendix to SDCL 16-16)," amends that section to read as follows:
5. Acceptance of Multistate Bar Examination Results from Other States. In its discretion, the Board of Bar Examiners may accept an applicant's previous scores on the MBE and the MPRE administered in a jurisdiction other than South Dakota if taken within twenty-five months prior to the next scheduled examination, if the score on the MBE is a scaled score of 130 or above and the score on the MPRE is a scaled score of 75 or above, and if the applicant passed the entire bar examination in the other jurisdiction.
Supreme Court Rule 98-14,"In the Matter of the Amendment of Regulation 6 of the Regulations of the Board of Bar Examiners (Appendix to SDCL 16-16)," amends that section to read as follows:
6. Places and Dates of Examinations. Unless different times and places are fixed by the Board of Bar Examiners, the examinations will be administered at the following times and places:
(1) The MPT, MEE and MBE are given on the last Tuesday and Wednesday of February and the last Tuesday and Wednesday of July in Pierre, South Dakota. The MPT and the MEE are given on Tuesday; the MBE is given on Wednesday.
(2) The MPRE is given in March and November in Vermillion, South Dakota, and in August in Pierre, South Dakota.
Notice of the times and places shall be given each applicant at the time of granting permission to take such examinations.
Supreme Court Rule 98-15,"In the Matter of the Amendment of SDCL 16-18-20.2," amends that section which governs trust accounting records and procedures. (Editor's note: Because of the length of the revised rule, it is not being reprinted in the Register.)
Supreme Court Rule 98-16,"In the Matter of the Adoption of a New Rule to be Designated as Rule 1.17 of the Rules of Professional Conduct (Appendix to SDCL 16-18)," adopts that section to read as follows:
Rule 1.17 Sale of Law Practice.
A lawyer or his or her law firm may sell or purchase a law practice, including good will, if the 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 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) 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 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.
(d) 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. (Editor's Note: Because of the length of the Comment, it is not being reprinted in the Register.)
Supreme Court Rule 98-17,"In the Matter of the Amendment of Rule 5.4 of the Rules of Professional Conduct (Appendix to SDCL 16-18)," amends that section to read as follows:
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 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.
(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
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Supreme Court Rule 98-18,"In the Matter of the Amendment of Rule 5.6 of the Rules of Professional Conduct (Appendix to SDCL 16-18)," amends that section to read as follows:
Rule 5.6 Restrictions on Right to Practice.
A lawyer shall not participate in offering or making:
(a) a partnership 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 controversy between private parties.
An agreement restricting the right of partners or associates to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.
Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.
Rule 5.6 does not apply to prohibit restrictions that may be included in the terms of sale of a law practice pursuant to Rule 1.17 and Rule 5.4(a)(3).
Supreme Court Rule 98-19,"In the Matter of the Amendment of Rule 7.2 of the Rules of Professional Conduct (Appendix to SDCL 16-18)," amends that section which pertains to advertising. (Editor's Note: Because of the length of the revised rule, it is not being reprinted in the Register.)
Supreme Court Rule 98-20,"In the Matter of the Amendment of SDCL 16-19-55," amends that section to read as follows:
16-19-55. Subpoena power of board and attorney general--Disobedience as contempt. In matters under investigation any member of the board or its counsel or the attorney general is authorized to issue a subpoena requiring any witness to attend at any place within the state where the witness is subpoenaed to appear and requiring such witness to produce pertinent books, papers and documents, and to administer oaths and take testimony in regard to such matters. The willful failure on the part of any person to respond to the subpoena, or the willful refusal of any person to testify, shall constitute a contempt against the Supreme Court and may be punished accordingly.
Supreme Court Rule 98-21,"In the Matter of the Amendment of SDCL 16-19-56," amends that section to read as follows:
16-19-56. Subpoena of attorney's record of client funds. The records required by' 16-18-20.1 may be subpoenaed by the attorney general or any member of the disciplinary board or its counsel in connection with any disciplinary investigation.
Supreme Court Rule 98-22,"In the Matter of the Amendment of SDCL 16-19-85," amends that section to read as follows:
16-19-85. Participation by board and counsel in hearing on reinstatement--Appearance by and examination of petitioner. In all proceedings upon a petition for reinstatement, cross-examination of the witnesses and of the petitioner, and the submission of evidence, if any, in opposition to the petition shall be conducted by the board's counsel. Board members may inquire of the witnesses and of the petitioner into all matters required by' 16-19-84 for petitioner's readmission. The petitioner shall be present in person at the hearing and shall submit to such examination as the Supreme Court deems proper.
Supreme Court Rule 98-23,"In the Matter of the Amendment of Rule II of the South Dakota Supreme Court Disciplinary Rules (Appendix to SDCL 16-19)," amends that section to read as follows:
Upon receipt of a written complaint by the Secretary-Treasurer from whatever source that he deems not frivolous, the Secretary-Treasurer shall acknowledge receipt of the complaint and notify the complainant of the name and address of the Disciplinary Board member to whom this complaint is assigned.
Supreme Court Rule 98-24,"In the Matter of the Amendment of Rule III of the South Dakota Supreme Court Disciplinary Rules (Appendix to SDCL 16-19)," amends that section to read as follows:
The Secretary-Treasurer shall assign the complaint to a member of the Disciplinary Board and forward a copy of the complaint to all members of the Disciplinary Board and to the Board Counsel.
Supreme Court Rule 98-25,"In the Matter of the Amendment of Rule IX of the South Dakota Supreme Court Disciplinary Rules (Appendix to SDCL 16-19)," amends that section to read as follows:
Should the Disciplinary Board find the complaint to have merit, after the investigation is completed, the Board shall afford the attorney complained against a reasonable opportunity to respond to the allegations. This hearing shall take the form of an informal conference between the Board and the attorney complained against or in the alternative, if required by the Board, a formal hearing noticed and conducted in the following manner, to-wit:
A. Notice to the attorney complained against shall be given by a member of the Board or by Board Counsel in writing, by certified mail return receipt requested, stating the time, place and date of the hearing when and where
B. A transcript shall be kept by a Court Reporter of all formal hearings.
C. The Chairman or Vice-Chairman shall conduct the hearing with at least a quorum of the Board present.
D. Procedurally, after advising the accused attorney of the right to be heard, to offer witnesses, to be represented by Counsel and to have a record kept, the hearing shall be conducted as follows:
FIRST - The accused attorney, after being sworn, or the accused attorney's Counsel, shall be permitted to make a statement.
SECOND - Any and all witnesses on behalf of the accused attorney shall testify after being sworn. Witnesses will be questioned first by the accused attorney or his Counsel and thereafter by a Board member or Board Counsel.
THIRD - Accused attorney shall be questioned by a Board member or Board Counsel.
FOURTH - Additional questions, if any, from other Board members.
FIFTH - Take testimony from the complainant or other witnesses, if it appears desirable, with cross examination.
SIXTH - Closing statement by accused attorney or Counsel with time limit set by Board Chairman.
SEVENTH - Board discussion off the record and out of hearing of the accused attorney.
EIGHTH - Decision of Board in accordance with SDCL 16-19-59, 16-19-60 or 16-19-61 and acts amendatory thereto.
NINTH - If the Board's decision is within the purview of SDCL 16-19-61 and the accused attorney file written objections with the Board within the time allowed, the objections shall be given consideration by the Board by means of correspondence between Board members or at a special meeting held for that purpose should the Board deem it necessary.
TENTH - The Board shall notify the accused attorney by mail of any revision or changes in the findings and recommendations brought about by the objections.
ELEVENTH - The Disciplinary Board shall report its findings to the Supreme Court in accordance with SDCL 16-19-62.
TWELFTH - If the Board's decision is within the purview of SDCL 16-19-60 and acts amendatory thereto, the Board shall notify the accused attorney of its decision in writing, by mail, certified return receipt requested, and unless the accused attorney invokes the provisions of SDCL 16-19-63 demanding a formal proceeding, the decision will be final and the requirements set therein complied with by the accused attorney on penalty of a petition for contempt before the Supreme Court.
THIRTEENTH - If the Board's decision is purview of SDCL 16-19-59 and acts amendatory thereto, the Disciplinary Board shall give notice in writing to the accused attorney, the complainant and such other persons as the Board deems appropriate, in writing.
Supreme Court Rule 98-26,"In the Matter of the Amendment of SDCL 19-16-8.2," amends that section to read as follows:
19-16-8.2. Physician's written report - Affidavit - Notice - Objection. Physician's written report in lieu of deposition or in-court testimony. In personal injury and wrongful death cases if the prayer for relief does not exceed seventy-five thousand dollars and in worker's compensation proceedings, the written report of any practitioner of the healing arts as defined in chapter 36-2 may be used for all purposes in lieu of deposition or in-court testimony of such practitioner of the healing arts provided that the report so offered into evidence has attached to it an affidavit signed by the practitioner of the healing arts issuing such report which verifies that the report constitutes all of his report, and that if called upon to testify he would testify to the same facts, observations, conclusions, opinions and other matters as set forth in such report with reasonable medical probability. The affidavit shall include or incorporate an attached exhibit by reference the qualifications of the practitioner of the healing arts whose report is being offered.
The report is not admissible unless the party offering it gives notice to all other parties of his intention to offer such report at least thirty days in advance of trial. Such notice shall be given to all parties together with a copy of any reports which are intended to be offered.
Any party may object to the receipt into evidence at trial of such report or any portion thereof on any legal ground other than hearsay. Nothing in this section restricts any party from deposing the practitioner of the healing arts whose report is sought to be offered or otherwise conducting discovery or calling such practitioner as a witness at trial.
REMINDER OF HEARINGS SCHEDULED:
Commerce and Regulation: Board of Social Work Examiners
Examination fee; 24 SDR 103.
Education and Cultural Affairs: Board of Education
Certification and preparation standards for educational personnel, postsecondary vocational education teacher endorsement; 24 SDR 113.
RULES REVIEW COMMITTEE MEETING:
The next meeting of the Interim Rules Review Committee will be held April 22, 1998, in Rooms LCR 1 and 2, Third Floor, State Capitol, Pierre, starting at 9:00 a.m. Agencies whose rules have had a public hearing are asked to have a representative present at the meeting to give background information on their rules.
Each agency is requested to provide the LRC with nine copies of the most recent draft of its rules two days before the meeting.
The South Dakota Register, ISSN 0191-1104, is published by the South Dakota Legislative Research Council pursuant to SDCL 1-26A-1. Subscriptions to Volume 24 are $20. Make checks payable to "State of South Dakota" and mail to the Legislative Research Council, State Capitol, 500 East Capitol Avenue, Pierre, South Dakota 57501-5070. Information from the Register is available free of charge on the Internet at http://www.state.sd.us/state/legis/lrc.htm.