SUPREME COURT STATE OF SOUTH DAKOTA FILED IN THE SUPREME COURT OCT 2 3 2019 OF THE ,4 STATE OF SOUTH DAKOTA . Clerk .. FINDINGS OF FACT, In the Matter of the Discipline of - CONCLUSIONS OF LAW, SCOTT R. SWIER RECOMMENDATION AND As an attorney at LAW FORMAL ACCUSATION SDCL 16-19-67 Case No. 2 ?2 ?56 A complaint was ?led with the Disciplinary Board of the State Bar of South Dakota (Board) against Scott R. Swier (Swier) and two associates, all attorneys at law, by Jack Theeler (Theeler), attorney at law, and an investigation was conducted by the Board. The initial complaint was against Swier and two attorneys employed as associates in - Swier?s law ?rm. Pursuant to Notice of Hearing a hearing was conducted on June 17, 2019 in Rapid City, South Dakota. The Board was represented by its counsel, Robert B. Frieberg, of Frieberg, Nelson Ask, LLP, Beresford, South Dakota. Swier appeared in person along with his attorney, Jeffrey G. Hurd of Bangs, McCullen, Butler, Foye Simmons, Rapid City, South Dakota. At the conclusion of the hearing on June 17, 2019, the Board left the matter open so that it could hear from the two associates who were also the subject of the initial complaint of Theeler. On June 18, 2019, the Board received a complaint from J. Terry Gelsomino against Swier and a third associate employed by his law firm. Pursuant to Notices of Hearing, continuation of the initial hearing on the Theeler complaint and a hearing on the Gelsomino complaint were both held in Deadwood, South Dakota on September 12, 2019. At the September hearing, the Board continued to be represented by Robert B. Frieberg of Frieberg, Nelson Ask, LLP, Beresford, South Dakota. Swier, together with the associates, appeared personally along with his attorney, Jeffrey G. Hurd of Bangs, McCullen, Butler, Foye Simmons. Mr. Hurd represented Swier and two associates with reSpect to Theeler complaint. The associate involved in the Gelsomino complaint was represented by Greg Eisland. . Page 1 of 7 Pursuant to SDCL 16?19?67 the Board submits the following Findings of Fact, Conclusions and Recommendation for formal discipline which constitutes a formal accusation against Swier. FINDINGS OF FACT 1. Swier resides in Avon, South Dakota with his wife and four children, having-grown up in Madison, South Dakota. 2. Swier is a 1997 graduate from the University of South Dakota School of Law and was admitted to the state bar in 1998. Following law school, Swier clerked for Judges Kern and Fitzgerald before entering private practice for approximately seven years. Swier then served as an assistant attorney general under Attorney General Larry Long where he participated in high?pro?le civil and criminal cases and served as the legislative director for the attorney general?s of?ce for approximately three and a half years. 3. In 2011, Swier re?entered private practice when he purchased the law practice of Tom Alberts of Avon, South Dakota after Mr. Alberts? death. 4. Swier Law Firm, at the time of the June hearing, had seven of?ces and eleven attorneys throughout the state of South Dakota. 5. Swier?s personal practice is primarily involved with representation of numerous school districts throughout the state of South Dakota. 6. Swier is the CEO of Swier Law Firm and is primarily responsible for the management of the ?rm. Swier is the majority shareholder in the ?rm and until recently was the sole shareholder having now taken on his sister, Brooke D. Swier Schloss, as a minority ?ve percent shareholder in the ?rm. Theeler Complaint 7. Prior to August 2017, a Swier associate was involved in the representation of Shirley Hickey, a client Swier?s associate had represented at a law ?rm where she was previously employed. The representation dealt with Ms. Hickey?s business and estate planning. 8. On August 21, 2017, Swier?s associate received an email from Attorney Theeler indicating that Theeler had been consulted by and would be representing Shirley Hickey, the same client whom the Swier associate had been representing for business and estate planning purposes. 9. In the email, Theeler requested copies of Shirley Hickey?s estate planning documents and offered to provide the necessary authorizations to release those documents to his of?ce. Page 2 of 7 10response was. made to Theeler?s request. Instead, Swier and his associate attorney, along with another associate attorney, prepared and ?led a petition for an ex parte appointment of a guardian and conservator for Shirley Hickey, which petition was granted. Once the temporary guardianship was established, Swier responded to Theeler by sending an email attaching the documentation appointing the temporary guardian and conservator. The email further indicated that it was Swier?s understanding that Theeler was representing Warren Hickey, Shirley Hickey"s son, whom Swier and his associates were concerned about as Warren had been alleged to be ?nancially taking advantage of his mother. - Swier?s associate had revised a trust for Shirley Hickey and was familiar with Shirley Hickey?s planning and business arrangements prior to leaving a prior position and joining Swier Law Firm. The associate had also drafted a promissory note from Shirley Hickey in favor of Warren Hickey while at her prior employment. The trust named Shirley Hickey and one of her daughters, Kristina Lippert, as co-trustees. Although the trust was revocable, no amendment or revocation was authorized without Kristina?s consent. Over the next several months, Swier and his associates continued to represent Kristina Lippert, who was Ms. Hickey?s co-trustee and who ?led the ex parte petition for appointment of a temporary guardian and conservator. Swier and his associates deemed the representation of Kristina Lippert to be on behalf of Shirley Hickey and in ?irtherance of Shirley Hickey?s stated desire to have Kristina Lippert handle her affairs. Swier and his associates continued to represent Kristina Lippert for several months despite demands from Theeler to withdraw from representation due to a con?ict of interest. On March 6, 2018, Swier and his associates filed a declaratory judgment action on behalf of Kristina Lippert, Shirley Hickey?s daughter and co- trustee, in which Shirley Hickey was a named defendant. The declaratory judgment action sought an interpretation of a trust agreement of Shirley Hickey in which the First National Bank of Sioux Falls was asserting authority to act as successor trustee to Shirley and Kristina. A hearing was held before Circuit Court Judge Douglas Hoffman on August 20, 2018 with respect to Swier and his associates continued representation of Kristina Lippert in her challenge to the appointment of First National Bank of Sioux Falls as successor trustee of the Shirley Hickey trust. Page 3 of 7 18the August 20, 2018 hearing, Judge Hoffman ordered that Swier and his associates were disquali?ed from further representation of Kristina Lippert based upon rule 1.9 of the South Dakota Rules of Professional Conduct due to what Judge Hoffman called a ?slam dunk? con?ict of interest in suing their former client in a similar or substantially related matter to which they had previously represented that client. Swier and his associates have acknowledged that the bringing of the declaratory judgment action constituted a con?ict of interest and should not have been brought by them}. Swier and his associates all contend that they were authorized to represent Kristina Lippert in the guardianship and conservatorship proceedings. Swier Law Firm billed Shirley Hickey and her trust more than $144,000.00 for legal fees between April 2017 and September 2018, including thousands of dollars in fees for bringing the declaratory judgment action and contesting their removal as attorneys for Kristina Lippert in that action. Swier made all decisions with regard to billing of clients of his ?rm, including those charged to Shirley Hickey. The fees were paid from Shirley Hickey?s assets. Gelsomino Complaint On July 15, 2018, Swier was contacted by J. Terry Gelsomino with respect to a potential claim involving a real estate matter in South Dakota. Gelsomino was a resident of the state of Florida and had been turned down by two previous law ?rms to undertake representation of his case. Swier assigned the case to a newly hired associate attorney in his of?ce who was practicing in Swier?s Sioux Falls location. Swier?s initial indication to the client was that his ?rm would review the matter for the client but required a retainer of $3,500.00. When the retainer was received, Gelsomino sent a large packet of information to Swier for review and also sent an email indicating that his claim may include a claim against a real estate agent and the agent?s real estate ?rm with which the agent was employed. Swier had previously represented the owner of the real estate ?rm but missed the reference to the real estate ?rm in Gelsomino?s initial email. After receiving the retainer, Swier assigned the associate to review the packet of information received from Gelsomino to assess the strength of any claims that Gelsomino could make. 1 The two associates were disciplined by the Board; one by private reprimand and one by admonition. Page 4 of 7 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. Swier testi?ed that in November 2018, he ?rst became aware of a potential con?ict of interest when he was advised by the associate that Gelsomino wanted to bring a claim against the real estate ?rm Swier had previously represented. I Swier?s associate was not aware of any con?ict until late January 2019 when so informed by Swier. After November 2018 when Swier was then aware of the con?ict, the associate continued reviewing and preparing the case including the drafting of a complaint which included naming Swier?s former client as a potential defendant. After the entire $3,500.00 retainer had been used and an additional $804.00 was billed to the client, Gelsomino was advised that Swier Law Firm had a con?ict of interest and would be unable to represent him in bringing any claims because a potential defendant was the real estate ?rm Swier had previously represented. Swier admits that he should have identi?ed the con?ict of interest before any fees were billed to the client but missed the reference to the real estate ?rm in the initial communication from Gelsomino. Swier?s associate was unaware of any con?ict of interest until so advised by Swier in January. The associate then suggested that the client be refunded his retainer for client relation purposes due to the failure of Swier to immediately identify the con?ict of interest. In the course of the September hearing, Swier insisted that keeping the $3,500.00 retainer Gelsomino paid was appropriate because the Swier associate spent the time required to evaluate the documents Gelsomino provided. Swier maintained the evaluation was of bene?t to Gelsomino. After a brief recess at the request of Swier?s counsel and continued interrogation by members of the Board, Swier stated he had reconsidered and should return the $3,500.00 retainer to Gelsomino. As of the date of the September 12, 2019 hearing, no refund had been made to Gelsomino for the $3,500.00 fee charged by Swier Law Firm to review the materials sent and draft a complaint. The Board exonerated Swier?s associate as having had no knowledge of the con?ict of interest and only doing such acts as were directed by his supervising attorney, Swier. Swier was not fully credible nor candid in his testimony on June 17, 2019 and September 12,2019. Page 5 of 7 CONCLUSIONS OF LAW A. Swier engaged in conduct in Violation of the South Dakota Rules of Professional Conduct by bringing an action against Shirley Hickey, a former client in Violation of rule 1.9 of the South Dakota Rules of Professional Conduct. B. As partner and manager of Swier Law Firm, Swier did not have reasonable measures in effect to assure that all lawyers in the firm were conforming to the South Dakota Rules of Professional Conduct and has not been exercising appropriate supervisory reSponsibilities over his associates in Violation of rule 5.1 of the South Dakota Rules of Professional Conduct. C. Swier violated Rule 8.4 and concerning misconduct in that he assisted others in Violations of the rules and by prejudicing the administration of justice by impeding the resolution of the Hickey dispute. RECOMMENDATION Based upon the above Findings of Fact and Conclusions of Law, the Board hereby recommends that the Supreme Court discipline Swier as follows: 1. By public censure for Violating Rule 1.9 Rule 5.1 and Rule 8.4 and of the South Dakota Rules of Professional Conduct. By ordering and directing Swier to acknowledge the public censure on his website so that the public is made aware of the rules Violations. Swier has thirty (30) days in which to admit or deny the allegations of the formal accusation pursuant to SDCL 16?19?68. If the allegations be denied by Swier, the matter may be referred to a Referee pursuant to SDCL 16-19-68, or the Supreme Court may determine the appropriate discipline. Dated this 21St day of October, 2019. Heather Lammers Bogard, Chair Robert B. Frieberg Counsel, Disciplinary Board Page 6 of 7 CERTIFICATE OF SERVICE The undersigned certi?es that the Findings of Fact, Conclusions of Law, Recommendation and Formal Accusation were served on the 21St day of October, 2019, by sending a copy thereof, by certi?ed mail, return receipt requested, to Swier at the following address: Scott R. Swier Swier Law Firm PO Box 256 Avon, SD 57315 and by ?rst class mail to: Jeffrey G. Hurd Bangs, McCullen, Butler, Foye Simmons PO Box 2670 Rapid City, SD 57709 Dated this 21St day of October, 2019. Robert B. Frieberg Page 7 of 7 SUPREME COURT STATE OF SOUTH DAKOTA FILED NOV - b? 2019 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA Clerk In the Matter of the Discipline of ANIENDMENT TO SCOTT R. SWIER RECOMMENDATION As an attorney at law SDCL 16?19?67 Case No. #29156 The Disciplinary Board having heretofore filed with the Supreme Court its Findings of Fact, Conclusions of Law, Recommendation and Formal Accusation; and The Recommendations having included a requirement that Respondent acknowledge the public censure on his website, but without setting forth a time frame for such acknowledgment; and Respondent having asked for clari?cation in such regard; and the Disciplinary Board having considered the request and having determined that ?xing a reasonable time limit for such'acknowledgement on the website was appropriate; The Disciplinary Board amends its Recommendation 2 to read as follows: RECOMMENDATION 2. By ordering and directing Swier to acknowledge the public censure on his website for a period of one year, commencing thirty days after entry and ?ling of the same by the Supreme Court, so that the public is made aware of the rules violations; the form of acknowledgment to be approved by the Disciplinary Board. Dated this 4th day of November, 2019. Heather Lammers Bogard, Chair Robert B. Frieberg Counsel, Disciplinary Board Page 1 of 2 CERTIFICATE OF SERVICE The undersigned certi?es that the Amendment to Recommendation was served on the 4th day of November, 2019,'by sending a copy thereof, by certi?ed mail, return receipt requested, to Swier at the following address: Scott R. Swier . Swier Law Firm PO Box 256 Avon, SD 57315 and by ?rst class mail to: Jeffrey G. Hurd Bangs, McCullen, Butler, Foye Simmons PO Box 2670 Rapid City, SD 57709 Dated this 4th day of November, 2019. ?va?bm Luv/3V Robert B. Frieberg Page 2 of2 SUPREME COURT STATE OF SOUTH DAKOTA FILED NOV 22 2019 IN THE SUPREME COURT . OF THE STATE OF SOUTH DAKOTA Clark Case No. 29156 In the Matter of the Discipline of R. SWIER, Answer of Scott Swier to Formal Accusation The South Dakota State Bar Disciplinary Board served its Findings of Fact, Conclusions of Law, and Recommendation on October 21, 2019. The Board amended its Recommendation on November 4, 2019. Pursuant to SDCL 16-19-678), Attorney Swier admits the Formal Accusation of the Board. Respectfully submitted the 20th day of November 2019. BANGS, MCCULLEN, BUTLER, FOYE SIMMONS, L.L.P. By: 67'. ?ow/d Jeffrey G. Hurd 333 West Boulevard, Ste. 400 PO. Box 2670 Rapid City, SD 57709 Telephone: (605) 343-1040 Facsimile: (605) 343-1503 ATTORNEYS FOR SCOTT SWIER Page 1 of 2 In re Swier Answer Case No. 29156 Certificate of Service I certify that, on November 20, 2019, I served copies of this document upon each of the listed people by the following means: IZI First Class Mail Odyssey Hand Delivery Overnight Mail K1 Electronic Mail ECF System Robert B. Frieberg PO Box 511 Beresford, SD 57 704 bfrieberg@frieberglaw.com Attorneys for the Board fe?qy 6. ?oor/ta? Jeffrey G. Hurd Page 2 of 2 In 1?9 Surfer Answer Case No. 29156 IN THE SUPREME COURT FILED OF THE . [Tc-52mg STATE OF SOUTH DAKOTA 14] a a, I 3 Clerk' In the Matter of the ORDER FOR HEARING Discipline of SCOTT R. SWIER #2 9156 as an Attorney_at Law. A disciplinary action having been commenced in the above? entitled action by the filing of findings of fact and recommendations_of the Disciplinary Board of the State Bar on October 23, 2019, and by filing amended recommendations on November 6, 2019, and respondent having filed an answer thereto on November 22, 2019, and the Court having considered the Disciplinary Board?s findings of fact and recommendations, amended recommendations and respondent?s answer and determined that the matter should be set for. hearing, now, therefOre, it is I I I. ORDERED that this matter be placed on the Court's January 15, 2020, oral calendar to be heard at 9:00 a.m. C.T. in the Courtroom of the Supreme Court, Capitol Building, Pierre, South Dakota. IT IS FURTHER ORDERED that respondent shall appear with his counsel at said hearing. DATED at Pierre, South Dakota this 5th day of December, 2019. maker THE David Gilbertson, Chief Justice Clerk of a?me Court (SEA