On November 7, 2017
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT GREGORY
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
FISCHER SCOTT SWIER MICHAEL A. HENDERSON of Swier Law Firm,
Prof. LLC Corsica, South Dakota Attorneys for former
plaintiff attorney Jake Fischer and appellant.
F. JOHNSON of Johnson Pochop & Bartling Law Office
Gregory, South Dakota Attorneys for defendant and Appellee.
Lawrence Meendering filed a motion to disqualify opposing
counsel Jake Fischer for an alleged violation of the South
Dakota Rules of Professional Conduct. Meendering also sought
attorney's fees from Fischer for costs incurred in
bringing the motion. The circuit court, citing our decision
in Jacobson v. Leisinger, 2008 S.D. 19, 746 N.W.2d
739 (Leisinger II), granted the motion. In imposing
fees, the court reasoned that sanctions were appropriate
because the motion to disqualify was "other
litigation" resulting from Fischer's alleged ethical
violation. We reverse.
and Procedural History
In 2009, Meendering loaned Jeff Schonebaum approximately $17,
000 to purchase a stud horse named Peppy from Heaven (Peppy).
In April 2013, Schonebaum sold Peppy to John Berggren for
approximately $11, 000. Berggren intended to use Peppy to
artificially inseminate other horses. However, an appraisal
of Peppy's semen indicated it was unsatisfactory and too
thin to freeze. In January 2014, Berggren sued Schonebaum,
claiming Schonebaum misrepresented Peppy's ability to
breed. Fischer of Swier Law Firm represented Berggren in the
Sometime later in 2014, Meendering paid a visit to Schonebaum
regarding personal loans Meendering made to him. Meendering,
suspecting Schonebaum would not settle the remaining debts,
visited an attorney in Wagner, South Dakota, on the return
trip home. The attorney expressed his disinterest in the case
and recommended Meendering contact the Swier Law Firm in
Avon, South Dakota. Later that day, Meendering drove to Avon
and met with Fischer in an unscheduled visit. Meendering
claims the two discussed the money he loaned Schonebaum.
According to Meendering, Fischer failed to disclose that he
represented Berggren in a lawsuit against Schonebaum.
On January 13, 2015, Fischer deposed Schonebaum. During the
deposition, the following exchange occurred:
Q. Do you know Lawrence Mendring [sic]?
Q. Who is he?
A. He's my banker.