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South Dakota

ABA Model Rule 8.4(g) Efforts in South Dakota


Status of Action in South Dakota

March 2020
Status – The Supreme Court of South Dakota rejected a version of ABA Model Rule 8.4(g).

In response to the decision of the South Dakota Supreme Court, on March 12, Kim Colby was featured on The Federalist Society Blog discussing the rejection of the proposed Rule 8.4(g) in South Dakota.

On March 9, the South Dakota Supreme Court announced in a letter to the South Dakota State Bar that the Court had unanimously denied the proposed Rule 8.4(g), which was an alternative version of ABA Model Rule 8.4(g). Specifically, the Court explained it “is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.” The Court further announced the creation of a Commission “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.” The Commission will consist of “justices, judges, lawyers, and others in the justice system.” It is to be in place by April 15, 2020, and provide its report by the end of 2020.

February 2020
The South Dakota Supreme Court is holding a rules hearing February 11, at 11:00 am Central time, at the courthouse in Pierre. One of the rules being considered is Proposed Rule 8.4(g), which would add a new subsection to the South Dakota misconduct rule. This new subsection would make it professional misconduct for a lawyer to “engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to . . . others and that conduct is prejudicial to the administration of justice.” CLS has prepared a short summary of the issues.

January 2020
In anticipation of the upcoming February 11, 2020, rules hearing, on January 16, CLS submitted a comment letter to the South Dakota Supreme Court opposing Proposed Rule 8.4(g).

On January 17, the South Dakota Attorney General filed objections with the South Dakota Supreme Court arguing that Proposed Rule 8.4(g) “is likely unconstitutional in that it prohibits constitutionally protected speech, is unconstitutionally vague, [is] unconstitutionally broad, violates an attorney’s free exercise of religion and free association rights, and addresses unlawful conduct already prohibited by Rule 8.4.” The South Dakota Attorney General directed the South Dakota Supreme Court to the Rule 8.4(g) analyses of Attorneys General in Alaska, Arizona, Louisiana, South Carolina, Tennessee, and Texas.

December 2019
The South Dakota Supreme Court issued a Notice on December 12, 2019, that it will conduct a public hearing on proposed rules changes, including an amendment to the South Dakota Rules of Professional Conduct Rule 8.4. The hearing will be held on Tuesday, February 11, 2020, at 11:00 am, Central Time, in the South Dakota Supreme Court Courtroom in Pierre, South Dakota. Anyone who wishes to speak at the hearing may do so, provided that any objections or proposed amendments be put in writing and the original and five (5) copies be submitted to the Clerk of the South Dakota Supreme Court no later than January 21, 2020.

June 2019
On June 21, the State Bar of South Dakota voted to send the Rule 8.4(g) proposal to the South Dakota Supreme Court.

Earlier in the month, the State Bar of South Dakota, in its June 2019 Newsletter, which focused on the upcoming State Bar Convention, announced the 2019 Annual Meeting Proposals. Included in those proposals is a proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.

Members of the South Dakota Bar will vote on the Bar Commission proposal at the 2019 South Dakota Bar Annual Meeting next week (June 19-21) in Rapid City, South Dakota. Specifically, the voting will take place on June 21, 2019 during the State Bar’s business meeting. The business meeting will be held in the Rushmore Room of the Ramkota Hotel and starts at 8:15 am Mountain Time. Voting will take place sometime after 8:30 AM and hopefully before 9:45 AM. If comments take more time than expected voting may take place after that time.

The proposed new subsection, which is a modified version of ABA Model Rule 8.4(g), would make it professional misconduct for a South Dakota lawyer to:

(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a peremptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

While this proposed Rule 8.4(g) is narrower than the deeply flawed ABA Model Rule 8.4(g) – because the conduct it prohibits must be “prejudicial to the administration of justice,” a requirement not found in ABA Model Rule 8.4(g) – this is also why the proposed rule should be rejected. South Dakota Rules of Professional Conduct Rule 8.4(d) already makes it professional misconduct to engage in conduct “prejudicial to the administration of justice.” Furthermore, accompanying Rule 8.4(d), South Dakota has long had former ABA Comment [3], which further explains that:

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

In addition to being redundant, the State Bar Commission proposal would add a black letter rule that raises similar constitutional problems to those ABA Model Rule 8.4(g) creates. Both target lawyers’ words and, under two Supreme Court decisions, both violate the First Amendment. In a 2018 opinion, the United States Supreme Court held that government restrictions on professionals’ speech – including lawyers’ professional speech – are generally subject to strict scrutiny because they are content-based speech restrictions and, therefore, presumptively unconstitutional. And in a 2017 opinion with obvious ramifications for regulatory attempts to penalize “harassing” speech, the Supreme Court unanimously struck down a longstanding federal statute because it allowed government officials to penalize “disparaging” speech and, therefore, was viewpoint discriminatory.

Equally problematic is that fact that several of the terms in State Bar Commission proposal are vague or undefined. What does “the known use of words” mean? “Engag[ing] in harassing or discriminatory conduct . . . when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others” is subject to discipline. But who are “others”? Does “others” mean other persons involved in court proceedings, or other persons outside of court proceedings? What is “legitimate advocacy”? What is “illegitimate advocacy”? Who decides? And is “legitimate advocacy” limited to the context of “counsel provid[ing] advice”?  Most importantly, the terms “harassing” and “discriminatory” are undefined, perhaps because ABA Model Rule 8.4(g)’s attempts at defining those terms have drawn heavy criticism.


Proposed Rule Changes in South Dakota

Current Ethics Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Current Comment
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
Proposed Rule
It is professional misconduct for a lawyer to:

(g) engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a peremptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

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