July 21, 1980

Mr. John Frederickson 

Department of Agriculture 
Surface Mining Program 
Anderson Building 
Pierre, South Dakota 57501

Official Opinion No. 80-50

Out-of-State Attorney's Practice Before Conservation Commission

Dear Mr. Frederickson:

You have requested an official opinion on behalf of Secretary Pearson in regard to the following factual situation:

FACTS: 

In the past on several occurrences attorneys who are licensed in another state, but not in South Dakota, have appeared on behalf of a corporation seeking permits from the South Dakota Conservation Commission.  These out-of- state attorneys, without participation by an in-state attorney, have conducted examination and cross-examination of witnesses and made legal arguments.

Based upon the above facts, you have asked the following question:

QUESTION: 

May an attorney licensed in another state, but not in South Dakota, practice before the South Dakota Conservation Commission, while it is acting as a quasi-judicial body, without participation by in-state counsel?

In my opinion an attorney not licensed in the State of South Dakota must comply with SDCL 16-18-2 when appearing in a representative capacity before an administrative tribunal of the State.

SDCL 16-18-1 provides: 

Excepting as provided by § 16-18-2, no person shall engage in any manner  in the practice of law in the state of South Dakota unless such person be duly licensed as an attorney at law, and be an active member of the state bar in good standing.  Any person engaging in any manner in the practice of law in violation of this section may be restrained by permanent injunction in any court of competent jurisdiction, at the suit of the attorney general or any citizen of the state.

SDCL 16-18-2, before enumerating the required procedure, provides in part: 

A nonresident attorney, although not licensed to practice law in the state of South Dakota, but licensed in another jurisdiction within the United States, may, after first complying with the requirements hereinafter set forth, participate in the trial or hearing of any particular clause in this state, provided a resident practicing attorney of this state, a member of the state bar of South Dakota, is actually employed and associated and personally participates with such nonresident attorney in such a trial or hearing.

SDCL 16-18-2 requires a nonlicensed attorney to follow the procedure set out before participating in a 'hearing of any particular cause in this state.' Given the importance and quasi-judicial character of administrative hearings, it is my opinion that they are included under SDCL 16-18-2.  The particular tribunal is not important, since it is the character of the act and not the place it is performed which is the decisive factor in determining whether an act constitutes the practice of law.  Denver Bar Association v. Public Utilities Commission, 154 Colo. 273, 391 P.2d 467 (1964); Chicago Bar Association, 336 III. 346, 8 N.E.2d 941 (1937); Hoffmeiser v. Tod, 349 S.W.2d 5 (Mo. 1961);  State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720 (1946).  'Although the commission is an administrative agency of the legislature . . ., nevertheless its actions would be characterized as judicial where it resolves disputes of adjudicative facts, and persons appearing in representative capacities in respect thereto would be practicing law.' Denver Bar Association v. Public Utilities Commission, supra.

As stated by the court in Public Serv. Commission v. Hahn Transportation Inc., 253 Md. 571, 253 A.2d 845 (1969): 

We have no doubt that when an individual on behalf of his employer or another prepares and files pleadings in a contested case before the Commission and appears at and engages in its trials by the examination or cross-examination of witnesses, in light of the law [he] has determined to be applicable or controlling and by arguing the case in writing or orally he engages in the practice of law.  A host of cases throughout the country have agreed that he is.  See footnote No. 1, Id at 850.  

Based on the above reasoning it is my opinion that out-of-state attorneys described in your factual situation are actively practicing law at a 'hearing of [a] particular cause in this state' and must follow the procedure set out in SDCL 16-18-2.

Respectfully submitted,

Mark V. Meierhenry
Attorney General