South Dakota Multijurisdictional Practice (MJP)
Rule 5.5 (Unauthorized Practice of Law; MJP Practice of Law) and Rule 8.5 (Disciplinary Authority; Choice of Law) of the South Dakota Rules of Professional Conduct encompass the Multijurisdictional Practice Rules (MJP) in South Dakota (not including rules relating to attorneys licensed in foreign countries). For general information about MJP, please see the MJP General page.
Rule 5.5 provides safe harbors for legal practices that out-of-state attorneys may perform in South Dakota without engaging in the unauthorized practice of law. Rule 8.5 recognizes that attorneys practicing in more than one jurisdiction will likely be subject to conflicting admission rules, court rules, or rules of professional conduct. Rule 8.5 attempts to minimize such conflicts and the uncertainty regarding which rules are applicable by establishing the set of rules governing the attorney’s conduct. Attorneys should consult both of the MJP rules, as well as the other South Dakota admission rules and the rules regulating the attorney’s home jurisdiction, in order to avoid the unauthorized practice of law.
RULE 5.5 (Unauthorized Practice of Law; MJP Practice of Law)
Rule 5.5, particularly 5.5(c) and (d), and the applicable comments allow active attorneys licensed in other jurisdictions who regularly practice law, and who are not disbarred or suspended from the practice of law, to practice in South Dakota on a temporary basis and to practice as South Dakota House Counsel. Attorneys must be in on active status. (Comment 7).
South Dakota’s MJP Rule 5.5 is the ABA Model Rule 5.5 with the additional 5.5(c)(5) requirement regarding temporary practice. The MJP rule requires attorneys to obtain a South Dakota sales tax license and pay the applicable taxes pursuant to Chapter 10-45 of the South Dakota Codified Laws.
South Dakota MJP 5.5 Practice Generally
Rule 5.5 generally prohibits attorneys from practicing law in a jurisdiction in a way that would violate the regulation of the legal profession in that jurisdiction. Out-of-state attorneys cannot establish an office or other systematic and continuous presence in South Dakota for the practice of law and cannot represent or hold himself or herself out to the public as being admitted to practice in South Dakota.
Comment 4 states that presence may be systematic and continuous even if the attorney is not physically present in South Dakota.
For practice under 5.5(c) (Temporary Practice) or 5.5(d) (House Counsel and Practice Authorized by Law), the following comments apply:
Comment 19 and RPC 8.5(a) subject attorneys to the disciplinary authority of South Dakota.
Comment 20 provides that, in some circumstances, attorneys may have to inform the client that the attorney is not licensed to practice law in South Dakota. An example includes when the representation occurs primarily in South Dakota and requires knowledge of South Dakota law.
Comment 21 does not authorize communications that advertise legal services to prospective clients in South Dakota by attorneys admitted in other jurisdictions.
Temporary Practice
Comment 6 states there is no single test to determine whether an attorney’s services are provided on a “temporary basis” in South Dakota. Services may be “temporary” even though the attorney provides services in South Dakota on a recurring basis or for an extended period of time. An example includes when the attorney is representing a client in a single lengthy negotiation or litigation.
The temporary practices include:
- Pro Hac Vice. Legal services that are undertaken in association with a lawyer who is admitted to practice in South Dakota and who actively participates in the matter. (5.5(c)(1)).
- Reasonable Expectation of Pro Hac Vice Admission. Legal services that are in or reasonably related to a pending or potential proceeding before a tribunal in South Dakota or another jurisdiction, if the attorney is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized. (5.5(c)(2)).
Comment 9 states that to the extent that a South Dakota court rule or other law requires an out-of-state attorney to obtain pro hac vice admission before appearing before a tribunal, the attorney must obtain that authority.
Comment 10 provides examples such as meeting with the client, interviewing potential witnesses, and reviewing documents. Similarly, out-of-state attorneys may engage in temporary conduct with pending litigation in another jurisdiction where the attorney reasonably expects to be authorized to appear. This conduct includes taking depositions in South Dakota.
Comment 11 permits conduct for other attorneys who are associated with the attorney but who are not expected to appear. For example, subordinate attorneys may conduct research, review documents, and attend meetings with witnesses.
- ADR. Legal services that are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in South Dakota or another jurisdiction. The services must arise out of or reasonably relate to the attorney’s practice in a jurisdiction where the attorney is admitted to practice and the services do not require South Dakota Pro Hac Vice admission. (5.5(c)(3)).
Comment 12 requires attorneys to obtain pro hac vice admission for court-annexed arbitrations, mediations, or if court rules or law otherwise requires.
Comment 14 provides factors for determining when services arise out of or reasonably relate to the attorney’s home jurisdiction practice. The factors include situations where the attorney may have previously represented the client, or the client was a resident in, or has substantial contacts with, the jurisdiction where the attorney is admitted.
The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the attorney’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of the attorney’s home jurisdiction. The client’s activities or the legal issues may also involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their attorney in assessing the relative merits of each. In addition, the services may draw on the attorney’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
- Practice with a Reasonable Relation to the Attorney’s Home Jurisdiction Practice. Legal services that are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the attorney’s practice in a jurisdiction where the attorney is admitted. (5.5(c)(4)).
Comment 13 states that these services include both legal services and services that non-attorneys may perform but that are considered the practice of law when performed by attorneys.
Comment 14 (above) also applies to (c)(4).
- South Dakota Sales Tax. All legal services are subject to South Dakota sales tax and attorneys utilizing pro hac vice admission, MJP, or reciprocal licensing must obtain a sales tax license pursuant to Chapter 10-45 of the South Dakota Codified Laws. (5.5(c)(5)).
House Counsel
House attorneys may practice under the South Dakota House Counsel Rules. South Dakota’s MJP rule also exempts house attorneys from the unauthorized practice of law and the prohibition against establishing an office or other systematic and continuous presence in South Dakota.
- Attorneys may provide legal services to the attorney’s employer or its organizational affiliates so long as the legal services are not those for which a forum requires South Dakota Pro Hac Vice admission. (5.5(d)(1)).
Comment 16 states that the rule does not authorized the provision of personal legal services to the employer’s officers or employees. The rule applies to in-house corporate attorneys, government attorneys, and others who are employed to render legal services to the employer.
Practice Authorized By Law
Attorneys may also render services in South Dakota authorized by South Dakota or federal law. (5.5(d)(2)). Practice under this MJP rule exempts attorneys from the prohibition against establishing an office or other systematic and continuous presence in South Dakota.
Comment 18 includes statutes, court rules, executive regulations, or judicial precedents.
RULE 8.5 (Disciplinary Authority; Choice of Law)
South Dakota’s MJP Rule 8.5 is substantially similar to the ABA Model Rule 8.5.
Disciplinary Authority. A lawyer admitted to practice in South Dakota is subject to the disciplinary authority of South Dakota, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in South Dakota is also subject to the disciplinary authority of South Dakota if the lawyer provides or offers to provide any legal services in South Dakota. A lawyer may be subject to the disciplinary authority of both South Dakota and another jurisdiction for the same conduct. (8.5(a)).
Comment 1 states reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purpose of the rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the disciplinary authority of this jurisdiction under Rule 8.5(a) appoints an official to be designated by this Court to receive service of process in South Dakota. The fact that the lawyer is subject to the disciplinary authority of South Dakota may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.
Choice of Law. The South Dakota Rules of Professional Conduct are applied as follows:
For conduct in connection with a matter pending before a tribunal, the applicable rules are those of the jurisdiction where the tribunal sits, unless the rules of the tribunal provide otherwise. (8.5(b)(1)).
For any other conduct, the applicable rules are those of the jurisdiction where the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction will be applied to the conduct. (8.5(b)(2)).
As discussed above, Comment 2 states that a lawyer may be potentially subject to more than one set of rules of professional conduct and those rules may impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction(s) where the lawyer is licensed. The lawyer’s conduct may also involve significant contacts with more than one jurisdiction.
Comment 3 states that 8.5(b) seeks to resolve the potential conflicts, because minimizing conflicts and uncertainty is in the best interests of the client, profession, and the regulating authorities. The MJP rules take the approach of providing that any particular conduct of a lawyer should be subject to only one set of rules of professional conduct, making the determination of which set of rules applies to a particular conduct as straightforward as possible, and providing protection from discipline for lawyers who act reasonably in the face of uncertainty.
Comment 4 states that all other conduct not pending before a tribunal, including conduct in anticipation of a proceeding not yet pending before a tribunal, subjects the lawyer to (b)(2). For conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits, or in another jurisdiction.
Comment 5 states that when a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one where the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction where the lawyer reasonably believes the predominant effect will occur, the lawyer will not be subject to discipline under this Rule.
Comment 6 states that if two admitting jurisdictions were to proceed against a lawyer for the same conduct, the jurisdictions should, applying this rule, identify the same governing ethics rules. The jurisdictions should take all appropriate steps to see that they apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.
Comment 7 states that the choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties, or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.