16-19-44. Individual complaint filed with board or Supreme Court--Reference for investigation and report. (A) An individual may initiate an investigation of an attorney's conduct by filing a written and signed complaint with the board secretary in such form as the board may prescribe. The complaint must allege facts. Conclusions, opinions, and suppositions shall not be considered.

(1) Board counsel or an attorney board member shall dismiss complaints outside the board's jurisdiction, frivolous complaints, and complaints that fail to state a claim upon which relief could be granted utilizing the same standard of review as would be used by a court reviewing a matter under subdivision 15-6-12(b)(5).

(2) Copies of such dismissals shall be provided to the board and the complainant. A complainant dissatisfied with such a dismissal may, within ten days of such dismissal, request in writing a review by the board. The board shall review the complainant's written request at its next regular or special meeting.

(3) The board shall proceed on all other complaints in accordance with §§ 16-19-50 to 16-19-64, inclusive.

(B) In the alternative, an individual may initiate an investigation of an attorney's conduct by filing a written complaint with the clerk of the Supreme Court. A complaint of attorney misconduct made directly to the Supreme Court shall comply with the following requirements:

(1) The complaint shall be signed and sworn to by the complainant.

(2) The complaint shall fully state all the facts relied upon by the complainant and shall identify all sources of the factual information. Conclusions, opinions, and suppositions of the complainant shall not be considered.

(3) If the alleged misconduct arose in a criminal case, the complaint shall state the county, court, and file number of the case file, whether there was a conviction, and the status of all appellate review, including pending habeas corpus or other post-conviction relief. Copies of any final decision from appellate or habeas corpus review, post-conviction proceedings, or if pending, the petition, shall be attached.

(4) The complaint shall state whether complainant has previously filed a complaint with the board alleging similar misconduct by the attorney. A copy of any letter of disposition by the board shall be attached.

(C) If the complaint fails to comply with any of the requirements of subsection (B), the clerk of the Supreme Court shall forward the complaint to the board secretary and the complaint shall be treated as if it had been initiated with the board pursuant to subsection 16-19-44(A).

(D) In the event that all requirements of this rule have been met, the Supreme Court shall proceed as follows:

(1) If the Supreme Court shall determine the alleged facts raise an issue of noncompliance with the Rules of Professional Conduct, the Supreme Court shall refer the matter to either the board or the attorney general for an investigation and report pursuant to §§ 16-19-45 to 16-19-64, inclusive.

(2) Complaints that are frivolous, unfounded in fact, or fail to raise an issue of noncompliance with applicable Rules of Professional Conduct shall be dismissed by the Supreme Court.

(3) Allegations of ineffective assistance of counsel or other attorney conduct which has been raised on appeal or habeas is deemed to be res judicata to the extent addressed by the reviewing court. The complaint process is neither a substitute for nor a precursor to a habeas corpus or post-conviction petition, and complaints alleging misconduct that would appropriately be alleged in a habeas corpus or post-conviction petition shall be deemed premature and dismissed by the Supreme Court.

(4) If the Supreme Court determines the board has previously investigated the complaint, the Supreme Court may, in its discretion, order the board to file a report with the Court on the nature and results of the board's investigation. Upon receipt of the report, the Supreme Court may determine whether the complaint presents new or additional facts which warrant further investigation. If the Supreme Court determines it is warranted, it may order further investigation or if not warranted, may dismiss the complaint.Source: SDC 1939 & Supp 1960, § 32.1216; SDCL § 16-19-9; Supreme Court Rule 78-1, Rule XX (h); SL 1994, ch 409; Supreme Court Rule 98-30; SL 2016, ch 246 (Supreme Court Rule 16-30), eff. July 1, 2016; SL 2018, ch 298 (Supreme Court Rule 18-07), eff. July 1, 2018.