Can a South Dakota full-time state's attorney still do private legal work on the side, like estate planning, business contracts, or federal court cases?
Plain-English summary
Custer County's state's attorney recently shifted from part-time to full-time status. State's Attorney Kelley asked the AG a simple question: does going full-time mean she has to wind down all private legal work, or only certain kinds?
The controlling statute is SDCL 7-16-19. It says: "In any county of over fifty thousand population and any other county where the board of county commissioners so designates, the state's attorney shall be a full-time position and the state's attorney may not be counsel or attorney in any action, civil or criminal, in the courts of this state except when acting on behalf of the county or the State of South Dakota."
The AG read the statute narrowly. The bar is on "any action, civil or criminal, in the courts of this state" with a private client. Everything else is fine: transactional legal work (drafting contracts, wills, real estate documents), advising private clients outside of litigation, representing clients in federal court (which is not a court of "this state"), serving as a mediator or arbitrator. Bar admission, ethical duties, and conflict-of-interest analysis still apply, but the SDCL 7-16-19 prohibition itself is litigation-state-court-specific.
The opinion drew a deliberate contrast with SDCL 1-11-1.1, the Attorney General's statute: "The attorney general shall serve on a full-time basis and may not actively engage in the private practice of law." That's a total ban. The Legislature wrote that for the AG and a narrower rule for full-time state's attorneys. The drafting choice is dispositive: when the Legislature wants a total bar, it knows how to write one. When it writes a narrower limit, courts and the AG respect that.
What this means for you
For full-time state's attorneys
You can continue to do transactional private legal work, federal court work, and advisory work. You cannot appear in South Dakota state courts on behalf of private clients (except as authorized for your office). Plan your private practice around that limitation. Make sure your private clients understand which matters you can take and which you can't. If a private matter that started transactional later turns into a state-court dispute, you'll need to refer it out at that point.
Ethics rules and conflict-of-interest analysis still apply, especially around matters that touch county or state interests. Coordinate with your county to clarify whether you need approval for specific outside engagements.
For part-time state's attorneys
SDCL 7-16-19 doesn't apply to you; it only restricts full-time state's attorneys. The decision to keep the position part-time is what preserves a state's attorney's flexibility to maintain a full private practice. Counties make that staffing decision under SDCL 7-16-19's first clause.
For county commissioners deciding whether to make the state's attorney full-time
The decision has direct consequences for the type of practice your state's attorney can maintain. A part-time position offers maximum private-practice flexibility; a full-time position restricts state-court private representation; you cannot opt for "full-time except let the state's attorney litigate private cases" because the statute imposes that restriction by operation of law when the position is full-time. If the county wants to recruit a candidate with a substantial litigation practice, the full-time decision affects what that lawyer can keep doing.
For law firms employing part-time state's attorneys
Map each state's attorney's status before assigning matters. A part-time state's attorney can take any matter consistent with bar ethics rules. A full-time state's attorney cannot appear in SD state court on a firm matter for a private client. If your firm is contemplating hiring a former state's attorney, ask which county and what status, and plan transitions accordingly.
For lawyers considering running for state's attorney
Know the position's status before you commit. If the county runs the office full-time, your private litigation practice will need to wind down (state court only) before you take office. Your transactional and federal court work can continue, subject to conflict screening.
For state bar ethics counsel
The opinion clarifies one specific statutory restriction. The broader ABA Model Rules and SDCL Chapter 16-19 (lawyer discipline) apply on top of SDCL 7-16-19. A state's attorney must comply with all three layers; SDCL 7-16-19 is the narrowest.
Common questions
Q: Can I do estate planning for private clients while serving as a full-time state's attorney?
A: Yes. Estate planning is typically transactional work outside any state-court proceeding. SDCL 7-16-19 doesn't prohibit it. Conflict-of-interest rules still apply.
Q: What about probate? That involves a state court.
A: Probate proceedings happen in SD state court, so representing the estate (an action in a court of this state) would fall within the SDCL 7-16-19 bar. You can draft the will and other estate-planning documents, but you can't appear in probate court for the estate.
Q: Federal court litigation, including federal magistrate court in SD?
A: SDCL 7-16-19's bar is on "courts of this state." Federal courts are not courts of this state. The opinion expressly says federal court practice is not prohibited.
Q: What if my private client is in administrative proceedings, like an unemployment hearing or a tax appeal?
A: The opinion focuses on "civil or criminal" "actions" in state courts. Administrative tribunals are generally separate from "courts." The opinion does not directly address administrative practice. Conservative reading: stay on the safe side and treat tribunals that function as courts (like the Office of Administrative Hearings on certain matters) as potentially within the bar. Defensive practice may also be advisable on appeals from administrative decisions when those appeals are heard in state court.
Q: Can I be a mediator or arbitrator in private disputes?
A: Acting as a neutral, not as counsel for a party, is a different role. The SDCL 7-16-19 bar is on being "counsel or attorney" for a private party. Serving as neutral mediator or arbitrator is generally permissible, subject to conflict checks.
Q: Does the position of part-time state's attorney exist outside large counties?
A: Yes. The first clause of SDCL 7-16-19 makes full-time status automatic for counties over 50,000 population but lets the county commissioners designate the position as full-time for any other county. Many smaller SD counties keep the position part-time.
Q: Are there county rules that go beyond SDCL 7-16-19?
A: Possibly. A county personnel policy, employment contract, or commissioner resolution could impose additional restrictions on outside practice (for example, requiring approval of each outside engagement). The AG opinion addresses only the statutory minimum; local rules can be stricter.
Q: What's the policy reason for the partial bar?
A: A full-time state's attorney's primary duty is to the county and the state, and litigating against the state in the same courts where they prosecute creates conflict-of-interest risk and time-management problems. Transactional and federal practice raise much smaller risks of those concerns, so the Legislature drew the line where it did.
Background and statutory framework
State's attorneys are elected county officials with two main jobs: prosecute criminal cases and provide civil legal services to the county. SDCL Chapter 7-16 governs the office. Historically, most SD counties' state's attorneys have been part-time positions, with the lawyer maintaining a private practice alongside. As counties grow, the workload increases and counties move to full-time positions.
The SDCL 7-16-19 restriction on private practice was a compromise. A complete ban (like the AG's under SDCL 1-11-1.1) would mean a full-time state's attorney could not maintain any law-firm affiliation, which would make the position unattractive in counties with smaller bars. The narrower state-court bar preserves significant private-practice opportunity while preventing the most acute conflicts: the state's attorney litigating against private opponents in the same courts where she or he prosecutes criminal cases.
The opinion's analytical move is statutory construction by contrast. Reck v. SD Board of Pardons & Paroles (2019) instructed that "statutes mean what they say and legislators have said what they meant." Looking at the AG's prohibition (total bar) alongside the state's attorney's prohibition (state-court bar) makes the Legislature's drafting choice plain: when they wanted a total bar, they wrote one.
Citations and references
Statutes:
- SDCL 1-11-1.1 (AG full-time, no private practice)
- SDCL 7-16-19 (full-time state's attorney; state-court representation bar)
Cases:
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- Goetz v. State, 2001 S.D. 138, 636 N.W.2d 675
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, 932 N.W.2d 135
Source
- Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1763
- Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2024-01.pdf
Original opinion text
OFFICIAL OPINION No. 24-01
Re: Official Opinion Concerning the Ability of Full-Time State's Attorneys to Engage in the Private Practice of Law
Dear State's Attorney Kelley,
In your capacity as the State's Attorney for Custer County you have requested an official opinion from the Attorney General's Office on the following question:
QUESTION:
Does SDCL § 7-16-9 prohibit full-time state's attorneys from engaging in the private practice of law, outside of their state's attorney's position, whether done with or without compensation?
ANSWER:
No. SDCL § 7-16-19 only prohibits a full-time state's attorney from representing a private party in a civil or criminal proceeding pending in the courts of the State. SDCL § 7-16-9 does not prohibit a full-time state's attorney from otherwise engaging in the private practice of law.
FACTS:
State's attorneys are elected or appointed officials that prosecute and defend, on behalf of the State or county, all civil or criminal actions or proceedings where the state or county is an interested party. State's attorneys also provide legal opinions and advice to their county commission and other county offices.
Historically, the Custer County state's attorney has been a part-time position, but was changed to a full-time position prior to the last election. The question has arisen concerning your ability to perform work outside of your duties as a full-time state's attorney.
IN RE QUESTION:
You have requested an interpretation of the following statutory language:
In any county of over fifty thousand population and any other county where the board of county commissioners so designates, the state's attorney shall be a full-time position and the state's attorney may not be counsel or attorney in any action, civil or criminal, in the courts of this state except when acting on behalf of the county or the State of South Dakota.
SDCL § 7-16-19.
When interpreting a statute to determine its meaning, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Comm'n, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 68). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction." In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785, 789 (internal citation omitted). When the intent of the statutory language is unclear, "the intent of the legislature is derived from plain, ordinary and popular meaning of the statutory language." Id.
The plain language of SDCL § 7-16-19 prohibits full-time state's attorneys from representing anyone, except their county or the State, in a civil or criminal action in the courts of this State. Considering this, it is my opinion that the statute only restricts a full-time state's attorney from representing private clients in those civil or criminal proceedings that are pending before courts in South Dakota. I find no prohibition in the language of the statute prohibiting a full-time state's attorney from conducting other private legal work outside the courtroom. Similarly, the language of the statute also does not prohibit a full-time state's attorney from engaging in civil or criminal practice in federal court.
If the Legislature intended to limit a full-time state's attorney's ability to engage in the private practice of law, it could have included that limitation in the statute. For comparison consider the statutory language limiting the Attorney General's ability to conduct private legal work. "The attorney general shall serve on a full-time basis and may not actively engage in the private practice of law." SDCL § 1-11-1.1. The Legislature prohibited the Attorney General from engaging in any private legal practice. In contrast, the Legislature has only prohibited full-time state's attorneys from representing private legal clients in proceedings before the civil and criminal courts of the State.
I must "assume that statutes mean what they say and that legislators have said what they meant." Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, ¶ 14, 932 N.W.2d 135, 140 (cleaned up). The language of SDCL § 7-16-19 does not prohibit a full-time state's attorney from providing legal counsel to private clients in matters that are not before the various courts of the State.
CONCLUSION:
I conclude that SDCL § 7-16-19 prohibits a full-time state's attorney from representing a private party in a civil or criminal matter in the courts of the State. The statute does not prohibit a full-time state's attorney from otherwise engaging in the private practice of law.
Sincerely,
Marty J. Jackley
ATTORNEY GENERAL