Court considers clarifying amendment allowing modest pro bono client expenses under Rule 1.8(e)

The South Dakota Supreme Court received a proposal to amend Rule 1.8(e) of the South Dakota Rules of Professional Conduct to clarify that lawyers representing indigent clients pro bono or through law‑school clinical programs may provide modest gifts or pay modest expenses that are incidental to the representation.

John Morehead, speaking for the ethics committee and the bar, said the amendment parallels an American Bar Association change and addresses a perceived gap that could have discouraged lawyers and law clinics from paying for small client needs such as meals during deposition breaks or transportation. Morehead said the proposal allows modest gifts “for food, lodging, transportations, and other expenses incidental to the representation,” while adding safeguards to prevent those expenditures from being used to induce clients or as part of advertising.

Those who initiated the change included East River Legal Services, which raised the issue after the ABA update; Morehead said additional legal‑aid offices also provided supportive feedback. The committee’s language limits the permissible assistance and forbids promises or implied availability of payments to entice clients, or seeking reimbursement from relatives as part of the inducement.

No formal objection was recorded during the hearing. A justice pointed out a typographical issue in the draft (preferences between “pro bono” vs. alternate spelling), and proponents acknowledged they would correct it. The amendment was submitted to the court for consideration.

Sources: oral presentation by John Morehead (Ethics Committee/State Bar); input from East River Legal Services referenced in the hearing.