PIERRE, S.D. (KELO) — The South Dakota Supreme Court is considering what discipline if any an attorney should face for how he represented a former client.
The lawyer, Tucker Volesky of Huron, went before the state’s highest court on Wednesday and spoke about actions he had taken on behalf of Bret Healy in a long-running dispute over ownership of the Healy family’s ranch.
The disciplinary board of the State Bar of South Dakota has recommended that the Supreme Court suspend Volesky’s law license for 30 days as punishment for those actions.
South Dakota law says the state Supreme Court has “the sole power to disbar and strike from the roster any attorney. The Supreme Court also has the power to suspend any attorney from the practice for such time not to exceed three years, to publicly censure an attorney, and to impose probation or conditions as shall seem just for cause shown.”
The Supreme Court’s decision regarding Volesky will be announced at a later date.
The matter was submitted to the disciplinary board based on complaints the board received against Volesky in early 2024.
The separate complaints came from attorney Jack Hieb of Aberdeen, state Circuit Judge Patrick Smith of Mitchell, and attorney Lee Schoenbeck of Watertown.
The board consolidated the complaints into a single investigation because they involved overlapping parties, issues and facts in related lawsuits.
Volesky began representing Bret Healy in January 2021. Healy had previously twice lost lawsuits in the ranch dispute before the South Dakota Supreme Court. Volesky didn’t represent Healy in those cases.
In the first prior case, Bret Healy had been ordered by the circuit judge to pay attorneys’ fees to the various defendants in the total amount of $83,295.42. The Supreme Court upheld those fees and also awarded appellate attorneys’ fees to the various defendants totaling $18,450. In the second of the prior cases, the Supreme Court ruled against Bret Healy again.
After Volesky began representing Bret Healy, Volesky filed a federal lawsuit for him regarding ownership of the family ranch. U.S. District Judge Roberto Lange dismissed the lawsuit, and the U.S. Eighth Circuit Court of Appeals in 2022 upheld the dismissal.
That led Volesky to file a lawsuit in federal court against the South Dakota Supreme Court and Circuit Judge Jon Sogn, sitting as a member of the state’s high court. At a hearing on November 20, 2023, U.S. District Judge Lange indicated he would dismiss the lawsuit and impose sanctions.
After Judge Lange dismissed the suit against the Supreme Court and ordered sanctions, Volesky then alleged in a second amended complaint that the Supreme Court justices including Judge Sogn had had “knowingly fabricated evidence and used the fabricated evidence deciding cases against the Plaintiffs,” to the detriment of Bret Healy in reaching their decision in the first Healy case.
Volesky also sought dismissal of another case he had brought for Bret Healy in state circuit court. However, Circuit Judge Patrick Smith on December 29, 2023, signed an order directing Volesky and Bret Healy to show cause why sanctions should not be imposed for their
violation of a South Dakota law barring actions intended for “improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”
After a hearing one month later, Judge Smith ordered Bret Healy to pay $240,000 in sanctions and Volesky to pay $10,000 in sanctions. Volesky in turn filed a federal lawsuit against Judge Smith and appealed Judge Smith’s sanctions order to the South Dakota Supreme Court.
Volesky eventually stopped representing Bret Healy after the State Bar disciplinary board opened its investigation in 2024. Attorney Thomas H. Frieberg of Beresford represented the disciplinary board on Wednesday. Frieberg told the Supreme Court that Volesky violated several rules of professional conduct, specifically:
Rule 3.1, which says, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
The disciplinary board said Volesky had initiated and/or defended proceedings and asserted issues for which “there was no good faith basis in law and fact, rendering such actions and filings frivolous.”
Rule 1.1, which says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The disciplinary board said Volesky “did not possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the competent representation of Bret Healy in the various lawsuits attacking the South Dakota Supreme Court, its justices and sitting justice Judge Jon Sogn, as well as the litigation filed against Circuit Court Judge Patrick T. Smith and the Brule County Clerk of Courts.”
Rule 8.2, which says, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
The disciplinary board said Volesky “made statements that he knew to be false and with reckless disregard as to the truth or falsity concerning the conduct of the South Dakota Supreme Court and its justices, including sitting justice Judge Jon Sogn, by stating that they engaged in fabrication of evidence to the detriment of his client Bret Healy in making their decision in
Healy I.”
Rule 8.4 (d), which specifically defines misconduct as engaging in conduct “that is prejudicial to the administration of justice.”
The disciplinary board further said Volesky violated a state law regarding an attorney’s handling of client trust accounts. And the board also said Volesky’s filing of the federal lawsuit against the South Dakota Supreme Court ran counter to the Rooker-Feldman Doctrine which, in most instances, prevents federal district courts from jurisdiction in cases seeking review of state court judgments.
The disciplinary board’s statement of recommendation noted that Volesky graduated from the Knudson USD School of Law in 2019, was admitted to the State Bar of South Dakota in October 2019, and practiced law alone in a building where his father and a brother also practiced law.
Representing Volesky before the Supreme Court on Wednesday was attorney Michael F. Tobin of Sioux Falls. He said that the Healy ranch dispute had begun before Volesky had even started law school and described it as “an arm-wrestling match” between Bret Healy and his family.
Tobin said Volesky had no other complaints against him and didn’t believe that he had violated any of the professional rules. Supreme Court Chief Justice Steven Jensen responded, “But how can we be confident that he’s learned his lesson if he stands up and tells us he did nothing wrong?”
Tobin suggested that the Supreme Court recommend a mentor who could offer guidance to Volesky and serve as a second pair of eyes. As for the $10,000 sanction against Volesky, Tobin said, “I can assure this court it will be paid. It just wasn’t paid out of an abundance of caution.”
Tobin says Voleksy comes from an attorney family. His father, Ron Volesky, is an attorney, as is his brother, Tyler Volesky. Tobin suggested that a public censure should be considered rather than a suspension. “I think Mr. Volesky is shameful that he has to be there,” Tobin said. “He can still be remorseful and can learn from it.”
Then the Supreme Court heard from Tucker Volesky. “First, I’m very sorry that we are here today,” he began, saying he has “the utmost respect for the court.”
Volesky said no other disciplinary complaints had been filed against him as approaches his sixth year as a lawyer. He asked the court to conclude that no rules were violated.
Chief Justice Jensen asked Volesky what he had learned after representing Bret Healy. “Caution, more than anything,” Volesky answered, “Caution and when you give in to make bold claims of the nature I made, you really call on others who are more experienced.” He added, “Having more experience on board would certainly be advisable in those situations.”
Chief Justice Jensen then asked Volesky whether he had anyone who had been serving as a mentor while representing Healy. Volesky named Howard Foster, an attorney from Chicago who was a contact during the 2021 federal lawsuit, and said that he had corresponded “time to time” with other attorneys who had represented Healy. “But ultimately I was bringing these cases as a sole practitioner,” Volesky said.
Justice Mark Salter asked Volesky whether, if another case doesn’t go his way in the future, what assurance can the Supreme Court glean from the record that if the client is adamant enough, Volesky won’t let his zeal get ahead of the rules.
Volesky said he would do his best but ultimately someone has to lose. “What else is there?” Justice Salter asked. Volesky said he withdrew at a certain point from the Healy matter and there have been no other allegations against him, calling the Healy matter “an isolated aberration.”
“I acknowledge what happened here. I never want to be in this position again.” Volesky said.
Chief Justice Jensen said he appreciated that Volesky had advocated for Healy as the client and never threw Healy under the bus, even though it might have been easy to do so. “My concern is where you say, you tell us you didn’t violate the rules,” the chief justice said. “Where’s the line?” Chief Justice Jensen asked. “At what point in time is that line crossed for a lawyer?”
Volesky replied, “In this instance, talking about pleadings, specific and complex issues, a number of them, and attempting to state plausible claims.” Responded Chief Justice Jensen, “In crossing that line, you harmed your client,” noting that Volesky charged Healy tens of thousands of dollars in attorney fees. “You effectively harmed your client. Would you agree?”
Volesky acknowledged that Healy faces $240,000 in penalties. Justice Janine Kern said Volesky alleged that the court manufactured evidence. “To me that’s a win at any cost attitude,” Justice Kern said.
Responded Volesky, “A lawyer has to have an awareness, it’s not a win at any cost game.” He acknowledged the fabrication claim and that Judge Lange didn’t agree with him and ultimately denied Volesky’s ability to do it.
Chief Justice Jensen asked Volesky if he has any mentor in mind.
Volseky said he didn’t and would take the court’s recommendation.
