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USA - South Dakota International Trade in Legal Services

United States of America - South Dakota International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector

SOUTH DAKOTA STATUTES, Title 16 - COURTS AND JUDICIARY, Chapter 16 - Admission Of Attorneys To Practice

Under what title do lawyers practise?

Attorney at law

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

An individual must have an LLB or JD from an ABA approved law school, satisfy character and fitness to practice requirements, and have passed the bar exam.

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

This only automatically entitles the holder to practise in South Dakota. The right to practise on a temporary basis in another state or to appear pro hac vice in another state depends on the explicit permission of that state.

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (In 2001, a Bar Association Task Force proposed the following definition, which has now been withdrawn and is being reworked.)
""Practice of law"" means the performance for another person or entity, of any of the following services:
(a) Representation before a judicial, legislative, or executive, administrative, or other governmental official or body, or before a government-owned body, or before an arbitrator or similar body;
(b) Preparation or review of documents involving liberty, property, or other rights or interests; or
(c) Any other service including, but not limited to, advice or negotiation, which in view of the facts and circumstances requires the knowledge, skill and judgment of a person trained in law.
(d) Whether or not they constitute the ""Practice of law"", the following are permitted:
(1) Practicing law in accordance with §16-16-7.1, 16-16-7.6, 16-16-17.1, 16-18-2, 16-18-2.1 to 16-18-2.10, and 16-18-34 to 16-18-34.6.
(2) Acting as a lay representative before administrative agencies or tribunals, if statutorily authorized.
(3) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.
(4) ""Participating in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements.""
(5) Providing assistance to another to complete a form provided by a court for protection under Chapters 29-19(a) and 25-10 when no fee is charged to do so.
(6) Acting as a registered legislative lobbyist under Chapter 2-12.
(7) Preparing a federal, state or local tax return or an appearance before a federal, state or local taxing authority in connection with an audit or administrative appeal of an audit or return by a person with respect to (i) their own tax returns, or (ii) tax returns of entities of which they are a substantial (ten percent or more) owner. The preparation of federal, state or local tax returns for third parties or the appearance before agents of taxing authorities in connection with audits on behalf of third parties or appearances before non-evidentiary administrative appeal bodies are also permitted.
(8) Other activities that the South Dakota Supreme Court has determined do not constitute the unauthorized practice of law.
For reference:
§16-16-7.1 refers to non-resident attorneys employed by legal aid bureaus or public defender agencies;
§16-16-7.6 refers to attorneys who are state court administrators or full-time law school faculty and administrators;
§16-16-17.1 refers to conditionally admitted bar applicants;
§16-18-2 refers to non-resident attorneys admitted for a trial or hearing of a particular cause;
§16-18-2.1 refers to law students serving as legal interns; and to 16-18-2.10
§16-18-34 refers to legal assistants. to 16-18-34.6
""Unauthorized practice of law"" means the practice of law by a person or entity who is not legally authorized to do so.
As to EXCEPTION 5, SDCL 29-19(a) pertains to stalking and SDCL 25-10 pertains to domestic abuse.

Do you need to hold local nationality to be eligible to practise law?

No

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

A lawyer may practise as a sole practitioner, in a general or limited liability partnership. Fee sharing with non lawyers is prohibited.

What other ethical or regulatory requirements must a licensed lawyer comply with? 

The South Dakota code of professional conduct which is modelled on the ABA model code (see:http://www.sdbar.org/Rules/Rules/PC_Rules.htm)

Do law firms need to receive a "license" (or permission/approval) to practice law?

Not from the Court but may be subject to other notification requirements depending on the form taken (e.g. limited liability company) and the local State code.

Which authority issues licences? Are there different authorities for individuals and firms? 

Licences are issued by the State Supreme Court

   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

Foreign lawyers are not permitted to provide fly-in fly-out services, this is only permitted to lawyers from other US states (see Professional Conduct rule 5.5 on Unauthorized Practice of Law)

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

 

 

 

Under the WTO commitments of the USA, an individual wishing to practise law on a fly in fly out basis in South Dakota would need to be fully admitted to the South Dakota Bar or to the Bar of another US State. 'Service salespersons' are permitted to enter the USA for periods of up to 90 days. "Service salespersons" are "persons not based in the territory of the United States and receiving no remuneration from a source located within the United States, who are engaged in activities related to representing a services supplier for the purpose of negotiating for the sale of the services of that supplier where: a) such sales are not directly made to the general public and b) the salesperson is not engaged in supplying the service" Entry for persons named in this section is limited to a ninety-day period.

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

No - There is no FLC licensing regime in South Dakota

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

Not applicable

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

Not applicable

Are foreign lawyers permitted to undertake arbitration and mediation?

 

Are foreign lawyers allowed to appear in court under any circumstances?

 

South Dakota Code, Section 16-18-2. Appearance by nonresident attorneys permitted.
http://legis.state.sd.us/statutes/Index.cfm?FuseAction=DisplayStatute&FindType=Statute&txtStatute=16-18-2

Can foreign lawyers requalify as local lawyers?

On September 29, 2003 the Court adopted an Admission by Motion Rule, effective January 1, 2004. SDCL 16-16-12.1 and 2

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?

No

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

Not applicable

Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc)

Not applicable

Is there a quota on the number of licences available?

Not applicable

Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have?

No

Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they? No
Are there restrictions on the corporate form a foreign law firm can take? Not applicable
Are there rules about the name a foreign law firm can take? Not applicable
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL Not applicable

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm?

Not applicable

May a domestic lawyer be employed by a foreign lawyer or law firm?

Not applicable

Can a domestic lawyer enter into partnership with a foreign lawyer?

Not applicable

Can a domestic lawyer or domestic law firm employ a foreign lawyer?

Not applicable

   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

 

Verified by

State Bar of South Dakota (February 2014)