M A R C H / A P R I L 2 0 1 4 I S S U E N O . 2 7 3

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 May 9 Spring Seminar, 9– Noon Grand Falls Resort, Larchwood, IA

June 18 Board Meeting at Bar Convention, Sioux Falls, 11 am June 19 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/Apri l 2014

PRESIDENT ’S MESSAGE….

B Y S T E P H A N I E E . P O C H O P

Officers President: Stephanie E. Pochop

President-Elect: G. Verne Goodsell Secretary-Treasurer: Steven C. Beardsley

Board of Governors

Timothy Rensch, AAJ Delegate Richard D. Casey, AAJ Delegate

Clint Sargent, AAJ Governor Terrence R. Quinn, AAJ Governor

Aaron D. Eiesland Casey W. Fideler Alecia E. Fuller

Raleigh E. Hansman Margo Tschetter Julius

Ryan Kolbeck Brad J. Lee

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. Tellinghui-sen

Association Office 104 W Spring Creek Dr — PO Box 1154

Pierre, SD 57501-1154 605-224-9292

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 submis-sions. 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.

Page 2

Continued on page 21

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 school in order to be able to help others. In rural South Dakota today, there are entire counties that are critically underserved by the legal profession. Our SDTLA student liaison, Kelsea Kenzy Sutton, was recently responsible for coordinating a very successful symposium at USD Law that highlighted the pressing need for legal services in the rural areas across the nation. Simply put, we need more lawyers who want to help people – and when they graduate, we need to make sure that these new lawyers know that the SDTLA is there to help them achieve this noble professional goal. 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 un-healthy 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 suc-ceed 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 profes-sion 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 stereo-types that circulate among our clients and jurors, they have the effect of being en-thusiastic 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 inter-actions with other lawyers and judges to make up for every 1 interaction with an in-sufferable 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

March/Apri l 2014 Page 3

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

$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

SDTLPAC is the political action committee of the SD Trial Lawyers As-sociation. 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 sys-tem. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!

$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

SUSTAINING MEMBERS

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!

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 Terry Quinn 88-89 Greg Eiesland 89-90 Steve Johnson 90-91 Glen Johnson 91-92 Bob Burns 92-93 Gary Jensen 93-94 Joe Butler 94-95 Mark Meierhenry 95-96 Jeff Larson 96-97 Nancy Turbak 97-98 David Gienapp 98-99 Rick Johnson 99-00 Jim McMahon 00-01 Mike Schaffer 01-02 John Blackburn 02-03 William F. Day, Jr. 03-04 Michael Abourezk 04-05 Michael W. Strain 05-06 Patrick Duffy 06-07 Thomas G. Fritz 07-08 Michael J. Butler 08-09 Wally Eklund 09-10 James D. Leach 10-11 N. Dean Nasser, Jr. 11-12 Stanley Whiting 12-13 Charles M. Thompson

LIFETIME ACHIEVEMENT AWARD Carleton “Tex” Hoy John F. Hagemann Robert C. Ulrich

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

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

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

March/Apri l 2014 Page 4

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

EDITOR’s Notes & Comments Marya V. Tellinghuisen

This year especially, I know I am not alone in treasuring the first signs of spring. The vacil-lating 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 keep-ing 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 advis-ing clients (whether criminal defendants or entrepreneurs) you should read this so that you don’t violate any ethical rules. Also, we had an article sub-mitted to us by the managing editor of The Expert Institute on law firm mar-keting. 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 re-flect on some of his practices. Each month the State Bar Newsletter re-prints 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 intimidat-ing 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.

“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

March/Apri l 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/Apri l 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 decriminali-zation 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; Connecti-cut; Delaware; District of Columbia; Hawaii; Illinois; Maine; Maryland; Massachusetts; Michi-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 relat-ing 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 Le-galize 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/alaska-recreational-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 struc-ture(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 Gold-smith, 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 add-ed). 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 repre-sentation 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 profes-sional 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 rec-ommended new rules for lawyers, which would create an exemption for lawyers who help marijuana businesses. A sep-arate 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 pro-marijuana group Colorado NORML, said the following: “[i]t doesn’t seem to be in the interest of fairness and the Ameri-can 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-marijuana-industry-lawyers, (2013). Continued on page 20

Robbie Rohl

March/Apri l 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 sin-gle example. Not from Pennington County. Not from western South Dakota. Not from east-ern South Dakota. Not now. Not in the past 10 years. Not ever. For Napoli, frivolous lawsuits in South Dakota are like the abominable snowman: many be-lieve 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 pocket-book. 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 prac-tice, 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 em-ployee 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 de-serve 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. Mul-tiple recipients are possible. Please send a letter with a brief synopsis of your nomination's excep-tional 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 sdtla@mncomm.com.

James Leach

March/Apri l 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 im-portant 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 cli-ent'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 en-gage, 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 confi-dences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, alt-hough 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 state-ments 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/Apri l 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 at-torney 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 in-crease 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

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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

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: __________________________________________

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

SDTLA is CATCHING FIRE!! 2014 Spring Seminar

May 8-9, 2014 Grand Falls Resort, Larchwood, IA

March/Apri l 2014 Page 12

Law School Times By Kelsea K. Sutton

kelsea.sutton@gmail.com (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 team-mate 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, Hou-ston, 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 Chi-cago, 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 contin-uing generous and steadfast support for their teams. As in previous years, a number of SDTLA members have gener-ously 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 pro-fessionally, 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/Apri l 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/Apri l 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 Liti-gation 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 in-formation about upcoming SDTLA events will be posted regularly. Members are also invited to post questions, com-ments, 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/Apri l 2014 Page 15

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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 re-markably 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 Gover-nor 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 be-cause 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 fac-tors 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 vio-lation 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 evi-dence under Title 19. It remains to be seen whether the act offers more protection and remedies to insurance consum-ers 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

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ROASTERS OF BOB MORRIS NEEDED May 8, 2014

Contact Sara for details….

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 doc-trines 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 request-ed, 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, (R-Dist.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. For-mer 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 for-warding 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.

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You may want to memorize this rule as it will not only improve your relationship with others you deal with on a daily ba-sis, 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 ac-curacy 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 pri-vate 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. How-ever, 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.

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NOTE TO YOUR ACCOUNTANT:

The NON-Deductible percentage

Of your paid dues for the FY 12/13

39.64%

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 en-gine indexation.

Body Text: Including your target keyword within the body of your post is highly critical. This indicates that your ma-

terial is relevant and comprehensive. But don’t overdo it! Search engines are highly intelligent and can spot un-natural 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 signifi-cant 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, moni-tor websites for malware and crawl errors, and troubleshoot poor SEO performance. Moreover, tools such as Moz Ana-lytics 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.

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March/Apri l 2014 Page 20

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 con-trolled drug or substance when the only evidence is from the ingested or absorbed unauthorized substance in the de-fendant’s body. 2004 S.D. 21, ¶14. This means that a positive urinalysis, revealing the presence of a controlled sub-stance 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 natu-ral 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 uri-nalysis called cannabinoid, is guilty of violating South Dakota law. Despite the fact that the immediate intoxicating ef-fects are far removed, the metabolite generated from marijuana use remains in the system, detected by urinalysis, for 5-8 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 Colora-do 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, Wash-ington 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 de-fendant’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 § 22-11-12

1 , 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 fore-seeable 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-for-pot-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-toke-colorado-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.

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FOOTNOTE ON PAGE 21

March/Apri l 2014 Page 21

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 ex-ample 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 pro-fessional enthusiasm and sign up today!

Continued from page 2

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 im-mediately 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 dis-tinction between “use” and “possession” is unpersuasive. Under the new statutory framework, SDCL 22-42-5 prohibits any per-son 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 di-chotomy between ‘possession’ and ‘use’ in the criminal law.” It also “permit[s] a defendant to be convicted of ‘unauthorized pos-session’ 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 22-11-12?

March/Apri l 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