16-19-44 Individual complaint filed with board or Supreme Court--Reference for investigation and re...
Individual complaint filed with board or Supreme Court--Reference for
investigation and report.
(A) An individual may initiate an investigation of an attorney's conduct by
filing a written complaint with the board in such form as the board may prescribe. The board shall
proceed on such complaint in accordance with §§ 16-19-50 to 16-19-64, inclusive.
(B) In the alternative, an individual may initiate an investigation of an attorney's conduct by filing
with the clerk of the Supreme Court a written complaint. A complaint of attorney misconduct made
directly to the Supreme Court shall comply with the following requirements:
The complaint shall be signed and sworn to by the complainant.
The complaint shall fully state all the facts relied upon by the complainant and shall
identify all sources of the factual information. Conclusions, opinions, and suppositions
of the complainant shall not be considered.
If the alleged misconduct arose in a criminal case, the complaint shall state the county,
court, and file number of the case file, whether there was a conviction, and the status of
all appellate review, including pending habeas corpus or other post-conviction relief.
Copies of any final decision of appellate or habeas corpus review, or post-conviction
proceedings, or if pending, of the petition, shall be attached.
The complaint shall state whether complainant has previously filed a complaint with the
Disciplinary Board alleging similar misconduct by the attorney. A copy of any
Disciplinary Board's disposition letter shall be attached.
(C) If the complaint fails to comply with any of the requirements of subsection (B), the clerk of
the Supreme Court shall forward the complaint to the secretary-treasurer of the State Bar and the
complaint shall be treated as if it had been initiated with the Disciplinary Board pursuant to § 16-19-44(A).
(D) In the event that all requirements of this rule have been met, the Supreme Court shall proceed
If the court shall determine the alleged facts raise an issue of noncompliance with the
Rules of Professional Conduct, the Supreme Court shall refer the matter to either the
Disciplinary Board or the attorney general for an investigation and report pursuant to
§§ 16-19-45 to 16-19-64, inclusive.
Complaints that are frivolous, unfounded in fact, or fail to raise an issue of
noncompliance with applicable Rules of Professional Conduct shall be dismissed.
Allegations of ineffective assistance of counsel or other lawyer conduct which has been
raised on appeal or habeas is deemed to be res judicata to the extent addressed by the
reviewing court. The complaint process is neither a substitute for nor a precursor to a
habeas corpus or post-conviction petition and complaints alleging misconduct that would
appropriately be alleged in a habeas corpus or post-conviction petition shall be deemed
premature and dismissed.
If the court determines the Disciplinary Board has previously investigated the complaint,
the court may, in its discretion, order the board to file a report with the court reporting the
nature and results of the board's investigation. Upon receipt of the report, the court may
determine whether the complaint presents new or additional facts which warrant further
investigation. If the court determines it is warranted, it may order further investigation,
or, if not warranted, may dismiss the complaint.
SDC 1939 & Supp 1960, § 32.1216; SDCL, § 16-19-9; Supreme Court Rule 78-1, Rule XX
(h); SL 1994, ch 409; Supreme Court Rule 98-30.