SD Official Opinion 24-01 2024-01-29

Can a South Dakota State's Attorney who is now a full-time county employee still do private legal work on the side, as long as it's not in state court?

Short answer: Yes. SDCL 7-16-19 only bars a full-time state's attorney from representing private clients in cases pending in South Dakota state courts. Other private practice (transactional work, federal court matters, out-of-court advice) is not barred by that statute. Compare with the Attorney General position, which is barred from all private practice by SDCL 1-11-1.1.

Disclaimer: This is an official South Dakota Attorney General opinion. AG opinions are persuasive authority in South Dakota but are not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed South Dakota attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Custer County recently switched its State's Attorney from a part-time to a full-time position. State's Attorney Kelley asked the AG whether the change cut off his ability to do any private legal work outside the office, or just some kinds.

SDCL 7-16-19 says, for full-time state's attorneys, "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." AG Marty Jackley read that text strictly:

It bars representation of private clients in "actions, civil or criminal" — meaning court proceedings.
"In the courts of this state" — meaning South Dakota state courts.
Outside those state-court proceedings, the statute is silent.

The plain text leaves room for a full-time state's attorney to do non-courtroom private legal work (transactional, contract, advisory) and federal-court representation. The opinion contrasts SDCL 7-16-19 with SDCL 1-11-1.1, which says of the Attorney General: "The attorney general shall serve on a full-time basis and may not actively engage in the private practice of law." That statute is a blanket bar on private practice. The legislature wrote a sweeping ban for the AG and a much narrower one for full-time state's attorneys, and the AG opinion respects the difference.

This is a meaningful clarification for small counties switching to full-time prosecutor models. The full-time state's attorney is not stripped of their ability to practice law privately for non-state-court matters, which preserves career flexibility and helps justify the salary structure that small counties often offer for these positions.

What this means for you

If you are a South Dakota full-time state's attorney

You are not required to give up private practice. You are required to:

Stop representing private parties in any civil or criminal action in South Dakota state courts (unless representing the county or the State).
Continue representing the county and the State in all court matters within your prosecutorial role.

You may continue or start:

Transactional and advisory work for private clients (contract drafting, real estate closings, estate planning, business formation, etc.) that does not involve appearing in a SD state court.
Federal court litigation for private clients (the statute speaks to "courts of this state," not federal courts located in South Dakota).
Out-of-state legal work where licensed.
Mediation or arbitration that is not a court proceeding.

You should still:

Disclose your dual roles to private clients per applicable Rules of Professional Conduct.
Manage conflicts carefully (no representation that could conflict with state's attorney duties; no use of office resources for private clients).
Coordinate with the county on workload and time allocation if the county expects full-time attention.

If you are a county commissioner managing a full-time state's attorney

This opinion lets you set realistic expectations:

"Full time" under SDCL 7-16-19 does not mean "no other legal work." It means full-time obligations to the county and no private state-court representation.
Smaller counties making the transition from part-time to full-time may need to negotiate with their state's attorney about how much non-state-court work is acceptable. The statute is the floor; the contract or county policy can be more restrictive.
Document the expectations. If you want a fully exclusive arrangement, write it into the state's attorney's employment terms.

If you are switching from part-time to full-time state's attorney

The transition has narrower legal consequences than you might think. You will need to:

Withdraw from any pending South Dakota state court matters where you represent private parties.
Decline to take on new representation of private parties in SD state court matters.
Continue your other practice if you wish, subject to ethical conflict-of-interest rules.

Many full-time state's attorneys do not do additional private practice as a practical matter (workload, conflicts, optics), but the statute does not require them to refrain.

If you are a private client of a part-time-becoming-full-time state's attorney

Your representation may need to transition:

If your matter is in SD state court, you will need new counsel for that matter once the state's attorney goes full-time.
If your matter is transactional or in federal court, your representation can continue.

Get clarity from your attorney early in the transition.

If you are pushing for reform of South Dakota prosecutor practice

The opinion essentially preserves the status quo for full-time state's attorneys. If you want a sweeping bar on private practice for full-time prosecutors (similar to SDCL 1-11-1.1 for the AG), the route is legislative amendment. The opinion's contrast between the two statutes is a clear roadmap for what such an amendment would look like.

If you want the opposite (looser rules, allowing some private state-court work), you would similarly need legislative amendment.

Common questions

Q: What is a "full-time state's attorney"?
A: Under SDCL 7-16-19, "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." Larger counties (over 50,000) are automatically full-time. Smaller counties can elect full-time status by board action, as Custer County did.

Q: What exactly is prohibited under SDCL 7-16-19?
A: Acting as counsel or attorney for a private party in any civil or criminal action in any South Dakota state court (Circuit Court, Magistrate Court, Supreme Court, etc.), with the carve-out for representation on behalf of the county or the State.

Q: Can a full-time state's attorney appear as defendant's counsel in a non-criminal SD state-court case (e.g., a divorce, contract dispute)?
A: No, not for a private client. SDCL 7-16-19 applies to "any action, civil or criminal." The bar covers civil cases including domestic, contract, and property disputes in SD state courts.

Q: What about appearing in a SD state court on behalf of one's own family (parent, spouse, child) pro se?
A: The opinion does not address pro se representation. Pro se status is not "representation" as the term is generally used, and the statute targets being "counsel or attorney" for someone else. But practical and ethical considerations may still counsel caution.

Q: Can a full-time state's attorney handle a real-estate closing for a friend?
A: Yes, if there is no court appearance. Real estate closings are transactional. They typically do not require state-court litigation. The friend should know about the dual role and any potential conflicts.

Q: Can the state's attorney teach a CLE or write for a law journal?
A: Yes. Those activities are not "counsel or attorney" representations. SDCL 7-16-19 does not address them.

Q: What if the county wants to require the state's attorney to be exclusively dedicated to county work?
A: The county can negotiate exclusivity into the state's attorney's employment terms or pay a salary that compensates for exclusivity. The statute does not require exclusivity, but it does not preclude the county from contracting for it.

Q: Does this opinion apply to part-time state's attorneys?
A: SDCL 7-16-19's restriction is by its terms specific to "full-time" state's attorneys. Part-time state's attorneys are not bound by it. They are subject to general conflict-of-interest rules under the Rules of Professional Conduct but not the state-court bar.

Background and statutory framework

South Dakota's state's attorneys are county-level prosecutors. They handle criminal prosecutions and represent the county in civil matters (SDCL 7-16). The position originated as a part-time office in small counties; population growth and caseload increases have pushed many counties to full-time models.

SDCL 7-16-19 was enacted to address the practical question that arises when a state's attorney goes full-time: should that attorney be allowed to also represent private clients? The legislature's compromise was to bar state-court representation of private clients (the place most likely to create conflicts with the prosecutorial role) but not to bar private practice in other forums or contexts.

The opinion's comparison with SDCL 1-11-1.1 is the analytical move. The Attorney General position is the model of an exclusive full-time legal role — the AG cannot do any private practice, period. If the legislature wanted state's attorneys treated the same way, it would have used the same statutory language. It did not. So full-time state's attorneys have a narrower prohibition than the AG.

The opinion does not address Rules of Professional Conduct issues that may further constrain a full-time state's attorney's private practice (conflicts of interest, duty of competence, fees and billing). Those are governed separately by the South Dakota Supreme Court's rules and the state Bar. Practical conflicts may make additional private practice imprudent even where SDCL 7-16-19 does not bar it.

Citations and references

Statutes:
- SDCL 7-16-19 (full-time state's attorney restriction)
- SDCL 1-11-1.1 (AG full-time bar)

Cases on statutory interpretation:
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- 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/opinions.aspx
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

MJJ/EEH/SRB/dd