Court Rules Against Avon Atty. In Misconduct Case

AVON — An Avon attorney with offices across eastern South Dakota has been suspended from his legal practice for one year, the South Dakota Supreme Court said Wednesday.

Scott Swier was suspended for actions that included a conflict of interest in the handling of cases, the Supreme Court said in its ruling. He could resume his legal practice in six months if he fulfills certain requirements.

Chief Justice David Gilbertson wrote the Supreme Court’s 35-page report. In its findings, the court said Swier violated professional rules of conduct by taking cases in conflict with the interests of former clients. In addition, he didn’t properly ensure that the attorneys employed by his firm also didn’t perform acts of misconduct. The Supreme Court filing included a finding of misconduct.

The high court noted the disciplinary options available to it: public censure, placement on probationary status, suspension for a specific period not to exceed three years and disbarment.”

“While the Disciplinary Board recommended public censure, we find this recommendation too lenient under the facts of the case,” the high court said in its decision.

The one-year suspension will begin 30 days after the entry of the order imposing the suspension. Should Swier pay back $144,000 to an estate and trust, the suspension from the practice of law shall be reduced to six months.

Swier must comply with South Dakota codified law regarding a suspended attorney’s duties to wind up business, give notice to office clients of suspension, give notice to counsel and clients involved in litigation and administrative proceedings, and file an affidavit of compliance with the Court.

Before Swier may petition for reinstatement, he must:

• Pass the multistate professional responsibility examination;

• Successfully complete a law office management court approved by the Supreme Court;

• Reimburse the State Bar of South Dakota and the Unified Judicial System expenses allowed under state law.

Furthermore, Swier must submit an affidavit to the Supreme Court stating under oath that:

• He has reviewed the oath of attorney and the rules of professional conduct;

• He fully recognizes that his actions violated the rules of professional conduct by which he is bound;

• He pledges to devote every effort in his future practice to fully abide by the rules of professional conduct and oath of attorney;

• Upon reinstatement, he will maintain professional malpractice insurance along with proof of it.

Swier may file a petition for reinstatement upon the expiration of his suspension in accordance with state codified law.

The state bar’s disciplinary board held hearings regarding Swier on June 17, 2019, and Sept. 12, 2019. The board found “Swier was not fully credible nor candid in his testimony” on those dates.

“Swier has admitted the allegations in the formal accusation and does not dispute the facts. This Court, therefore, may adopt the Board’s findings,” Gilbertson wrote.

Swier graduated from the University of South Dakota School of Law in 1997, passed the bar examination and was admitted to practice law Jan. 2, 1998. He clerked for the Seventh Circuit for one year, was in private practice for seven years and served as an assistant attorney general for three years.

He purchases Tom Alberts’ private practice in Avon and re-entered private practice in 2011.

At the time of the June 17, 2019, hearing in this matter, Swier Law Firm had offices in Avon, Sioux Falls, Corsica, Winner and White Lake. The firm was in the process of opening an office in Wagner and had an office in Sturgis affiliated with a Sturgis law firm.

The Swier Law Firm has an online presence that produces both client leads and interest from attorneys seeking employment with the firm. It also has a business relationship with Hoy Law.

Swier is the CEO of Swier Law Firm, Prof. LLC, and is primarily responsible for the management of the firm.

While Swier has no prior history with the Disciplinary Board, in a recently reported case in the North Western Reporter, the Swier Law Firm and an attorney in the firm were disqualified in a case by court order for violating the Rules of Professional Conduct on conflicts of interest.

In addition, the disciplinary board received a complaint from a client concerning “Swier Law’s ultimate conclusion that it had a conflict of interest and could not represent him, and Swier Law’s refusal to return a $3,500 retainer. In addition, the Swier Law Firm billed the client an additional $804.

Besides his conflicts of interest, Swier maintained a “haphazard and chaotic” business model for his firms, Gilbertson wrote.

“A continuing theme in this disciplinary proceeding is Swier’s inability, or unwillingness, to identify and resolve conflicts of interest,” Gilbertson said.

In addition, Swier wasn’t initially forthcoming with the full facts and didn’t show remorse for his actions, the judge wrote.

“Our review of the record left the Court with the impression that Swier ignored what he knew were conflicts, was too slow to take corrective measures and showed no true remorse,” Gilbertson wrote.

“Oral argument confirmed our impression of the record. Swier used his opportunity before the Court to promote himself and Swier Law Firm during what can charitably be recognized as an ‘infomercial.’ He lacked sincerity and remorse and any attempt at either was pro forma. It was hardly the central focus of his presentation to the Court.”

“Under the circumstances, this Court cannot proclaim that Swier is fit to be entrusted with legal and judicial matters, and is able to aid in the administration of justice,” the chief justice added.

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