An Avon-based attorney with offices across southeast South Dakota will be suspended from practicing law for one year, the South Dakota Supreme Court ruled Wednesday.
The court found that Scott Swier violated three professional conduct rules by taking cases in conflict with the interests of former clients and failing to properly ensure the attorneys he employed didn't also participate in misconduct.
The decision rendered by the court and written by Chief Justice David Gilbertson is blistering regarding Swier’s behavior and management of his law firm, which was described as “haphazard,” and described his oral arguments to the court as resembling an infomercial for his law firm and his time before the court as “lacking in sincerity and remorse.”
“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.
The Disciplinary Board of the State Bar of South Dakota recommended to the Supreme Court following hearings on June 17 and Sept. 12 that Swier be publicly censured for his violations. The Disciplinary Board said “Swier was not fully credible nor candid in his testimony” on those two occasions.
"While the Disciplinary Board has recommended public censure, we find this recommendation too lenient under the facts of this case," Gilbertson wrote.
The court decision said Swier admitted the allegations in the formal accusation and does not dispute the facts.
“Under these 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,’” Gilbertson wrote, quoting state law. “His acts were not merely isolated, foolish, and negligent; they were intentional.”
Swier's suspension will begin 30 days after an order is filed. If he pays $144,000 back to the estate and trust of a client he was disqualified from representing, his suspension will be reduced to six months.
Before Swier can petition to be reinstated, he must pass the Multistate Professional Responsibility Examination, complete a law office management course approved by the Supreme Court and reimburse the Unified Judicial System and the State Bar.
One of the complaints regarding Swier was over a Chamberlain woman’s contested will, brought forward by Mitchell attorneys Jack Theeler and Richard Rylance. A judge in the case had ordered that Swier’s firm stop representing Shirley Hickey’s daughter, Kristina Lippert, in the case, because Hickey herself had been a former client of Swier’s firm. Theeler had previously provided legal services to the Hickey family and was contacted in 2017 to review Hickey’s estate plan.
The judge in that case said the actions of the Swier Law Firm were a “slam dunk” conflict of interest and disqualified the Swier firm from the case. After Theeler was appointed as Hickey’s counsel by court order, Swier’s firm did not withdraw from representing Lippert and later billed the estate of Shirley Hickey and her living trust more than $144,000 in legal fees over an 18-month span in 2017 and 2018. Two associates of the firm were also disciplined by the State Bar’s Disciplinary Board.
In a second matter, the Disciplinary Board received a complaint from a Florida man regarding Swier’s representation of him in a real estate matter regarding land in Gregory County. J. Terry Gelsomino was intending to bring a claim against Juffer Realty, and Swier had previously represented the real estate agency and its owner.
Swier said he missed the reference to Juffer Realty in one of Gelsomino’s initial emails about the planned claim in October 2018, and Swier’s firm didn’t inform Gelsomino of the conflict of interest until Feb. 1, 2019. Swier’s firm eventually refunded Gelsomino the $3,500 retainer in the case, but “only after pointed questioning by the Disciplinary Board,” according to the Supreme Court decision.
The court ruled that if Hickey’s estate is paid back, Swier’s period of suspension can be shortened.
The decision written by Gilbertson questioned Swier’s demeanor with the Disciplinary Board and said it violates the trust needed in the legal system.
“One of the purposes of attorney discipline is to avoid repetition of the misconduct,” Gilbertson wrote. “The Disciplinary Board found that Swier lacked credibility and candor. This finding does not weigh in Swier’s favor and does not convince this Court that there is little likelihood of repetition in the future.”
As of 2019, Swier had law offices in Avon, Sioux Falls, Corsica, Winner and White Lake, and was in the process of opening a Wagner office. He previously served as assistant attorney general for the state of South Dakota, and he re-entered private practice in 2011. Swier has represented numerous school districts and community governments in the state of South Dakota.
The court noted that under Swier’s business model, he is the firm’s sole shareholder and is primarily responsible for its management, billing and finances, and the attorneys at the firm are employees. Gilbertson wrote that, based on the complaints, Swier did not have office procedures and policies to identify conflicts of interest and was “unaware of his responsibilities as a managing attorney.”