Wednesday, February 26, 2020

Business Model Leads To Suspension

The South Dakota Supreme Court rejected a censure as unduly lenient for a failure to supervise violation

While the Disciplinary Board has recommended public censure, we find this recommendation too lenient under the facts of this case.

 Swier Law maintains multiple offices over a vast geographical area in South Dakota. Under the “business model” Swier developed, he is the sole shareholder who is primarily responsible for its proper management and solely responsible for its billings and finances. The attorneys in the firm are employees. Therefore, Swier, who also maintains a full caseload, has the obligations and duties of managing and supervising attorneys pursuant to Rule 5.1. It is apparent that in the Theeler and Gelsomino complaints, Swier did not have office procedures and policies to identify conflicts of interest, was unaware of his responsibilities as a managing attorney, delegated decision-making and supervisory authority to employees, and continued representation when he knew conflicts existed. In part, because of Swier’s lack of management and knowledge of the Rules of Professional Conduct, the majority of the attorneys in Swier Law Firm faced disciplinary proceedings. His “business model” was haphazard and chaotic. While he offered to change whatever the Disciplinary Board suggested, the management of Swier Law Firm is not the role of the Disciplinary Board

Of grave concern, is Swier’s lack of full candor and credibility with the Board. By trying to defend his actions initially before the Board and coming to accept responsibility only through capitulation, Swier continued the same troubling pattern of behavior that he exhibited in the underlying complaints. In both instances, he unjustifiably refused to take appropriate action to address conflicts even after they were apparent. Given this, we have a low degree of confidence that the solemnity of these disciplinary proceedings and the Board’s proposed sanction will, themselves, effect the lasting change necessary to protect the public.

Sanction

This Court concludes that the appropriate discipline in this case is that Swier be suspended from the practice of law for a period of one year, effective thirty days after the entry of the order imposing suspension. SDCL 16-19-77. Should Swier pay back $144,000 to Shirley’s estate and trust, the period of suspension from the practice of law shall be reduced to six months

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/the-south-dakota-supreme-court-while-the-disciplinary-board-has-recommended-public-censure-we-find-this-recommendation-too.html

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