Immunity for the Overseers?
Representative Mary Fitzgerald is the prime sponsor of this bill HB1023 for immunity for the organization that is the head over and in charge of licensing, testing, and disciplining attorneys in our state. The other prime sponsor is Senator Lee Schoenbeck, who had over 50 complaints sent to the State Bar of SD in 2023 after the SD Legislative Session. These complaints detailed severe constitutional rights and ethics being abused by the lawyer Senator Schoenbeck. Absolutely no hearing was scheduled for all these complaints. So far nothing has been done for discipline in regard to Senator Lee Schoenbeck. People should have the right to sue this organization for lack of discipline. What makes lawyers so special as to not be disciplined? In the Committee Hearing it was pointed out through questions by Rep Hanson and Rep Odenbach there has been no need for decades and now suddenly there is a need for the State Bar to have immunity. It is not a coincidence this bill was brought forth by Sen/Attorney Lee Schoenbeck the following year a record amount of people placed serious complaints to the State Bar on him.
The bar is registered as a 501(c)(6) nonprofit for the “association functions.” This type of nonprofit can sue others on behalf of the organization, and it can be sued. The title of this bill states it best. “Provide immunity from liability for certain actions of the State Bar and its agents.” I absolutely do not believe that the State Bar should be immune from liability. A non-profit organization can be sued. You may or may not be able to pursue a claim against the directors and officers. If they serve without compensation, they may not be sued for negligence as long as they act in good faith in a manner they believe to be in the best interest of the corporation. According to the 2021 IRS form 990 of the so-called non-profit the Executive Director made $113,612.00 plus another $28,070 in related compensation to the Director. Compensation can also be done as favors that cannot be seen. These are examples of such compensation. I will scratch your lawyer’s back if scratch my lawyer’s back. I won’t step on your lawyer’s toes if you don’t step on my lawyer’s toes. We are in a big important legal club together so therefore we stick together like glue. The below pictures are of 3 “COMBINED STATEMENTS OF ACTIVITIES YEARS ENDED JULY 31, 2021 AND 2020.” The State Bar of South Dakota is organized in 3 different areas, as a public association and the S.D. Continuing Legal Education, Inc. and Access to Justice, Inc. are organized as nonprofit corporations under the laws of the State of South Dakota.
When looking at the revenue it increased by $294,343 from 2021 to 2022. According to the Financial Report there is a total of $1,302,931 net combined assets for 2021. The net income was $247,820 for the year 2022. I would like to point out that a good portion of these fees are paid for by the county and city taxpayers for the county and city attorneys to have licenses. They rarely pay for their own whereas other professions usually pay for their own yearly license fees.
In SD we have departments that oversee boards, that are in charge of licensing and disciplining of that profession. Some examples include the Dept of Health that oversees the SD Board of Nursing. The Board of Nursing is to protect the public through the regulation of nursing licensure, practice and education. The South Dakota Board of Cosmetology is in charge of enforcing laws and regulations through inspections, investigation into complaints submitted by consumers and conducts hearings, imposes penalties and enforces actions when they deem necessary. Through education and the enforcement of the cosmetology laws in SD, the state board ensures the safety, welfare and public health by regulating the salons, schools and individuals who practice cosmetology. The South Dakota Department of Agriculture and Natural Resources (DANR) is the lead agency administering the pesticide certification program required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is in charge of licensing, testing, training, and discipline of Commercial Pesticide Applicators. The South Dakota Department of Labor & Regulation (DLR) oversees each person selling insurance in the state to hold an insurance producer license. The list goes on. ALL these departments and boards can be sued if they do not do their jobs properly. What gives lawyers such privilege for their organization to not be sued?
Last but not least, the attorney that voted yea for the bill was Mike Stevens. Rep. Fitzgerald’s husband is a judge and a couple of her children are lawyers. Is this not a close conflict of interest voting on an issue that gives immunity to an organization who is in charge of overseeing licensing and discipline of yourself or your immediate family?
My opinion is that the State Bar needs restructuring. I do not believe they have the right to hide behind non-profit activities. Yes, this will take money to restructure but instead of the State Bar getting the revenue from licensing the State of SD can handle that aspect of. It is only right and just that we do not have a profession that is considered more privileged by giving rights and invisible nobility titles done by special privileges to attorneys and their organizations.
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