Baseless Allegations of Judicial Fabrication as Professional Misconduct: Commentary on In re Discipline of Volesky, 2025 S.D. 62

I. Introduction

The South Dakota Supreme Court’s decision in In the Matter of the Discipline of Tucker Volesky, 2025 S.D. 62, is a wide–ranging disciplinary opinion that does three things at once:

• It reaffirms and clarifies the strict limits on lawyers’ ability to accuse judges of corruption or “fabricating evidence” without a sound factual basis (Rules 8.2 and 8.4).
• It links repeated re-litigation of claims already rejected on res judicata and related grounds to both incompetence (Rule 1.1) and frivolous litigation (Rule 3.1).
• It reinforces the non‑negotiable nature of trust account obligations under SDCL 16‑18‑20.2 and Rule 1.15, even for young solo practitioners.

The case arises from attorney Tucker Volesky’s representation of Bret Healy in a long‑running family ranch dispute and from his mishandling of his law firm trust account. The disciplinary proceeding is notable because one of the central pieces of misconduct involved a federal civil rights action in which Volesky, on behalf of his client, sued the South Dakota Supreme Court itself (and its justices), accusing it of having “fabricated evidence” in prior state decisions involving the Healy Ranch.

Despite being the target of those accusations, the Court sat in judgment of the disciplinary matter, expressly invoking its regulatory duty to protect the public and preserve professional standards. The Court ultimately imposed a 90‑day suspension (more severe than the 30‑day suspension recommended by both the Disciplinary Board and the Referee) and a two‑year probationary period with mentoring and enhanced trust‑account oversight. Justice Salter concurred in part and dissented in part, arguing that disbarment was the only appropriate response to what he viewed as unrepentant and fundamentally incompatible conduct with continued licensure.

II. Summary of the Opinion

A. The Core Facts

The misconduct had three intertwined strands:

1. Litigation Misconduct in the Healy Ranch Disputes. After several adverse state decisions regarding ownership of the Healy Ranch (Healy I, Healy II, and Mines) and a federal RICO case (Healy v. Fox) rejecting Healy’s attempts to re‑litigate ownership, Volesky:
   • Filed a federal action (Healy III) against the South Dakota Supreme Court, its justices (including a circuit judge sitting by designation in earlier Healy appeals), and others, alleging due process violations, fraud, misrepresentation, and a “fake” email.
   • Later sought to file a second amended complaint in that case, repeatedly alleging the Court had “fabricated evidence” and used it to decide Healy I, and then relied on that fabricated evidence in Healy II and Mines.
   • Represented Healy in state court in a dissolution action related to Healy Ranch, which resulted in significant sanctions against both Healy and Volesky for violating SDCL 15‑6‑11(b).
   • Filed yet another federal civil rights action (Miller) challenging the sanction imposed by Judge Smith, again invoking 42 U.S.C. § 1983.
2. Trust Account Mismanagement. A review of Volesky’s trust account revealed:
   • Systematic retention of large amounts of earned fees in the client trust account—using it as a “personal savings account.”
   • Random withdrawals not tied to specific client matters.
   • Significant commingling of personal and client funds (e.g., about $161,000 in earned fees from Healy, and nearly $96,000 from a settled matter, retained in trust well after fees were earned).
   • Deferral of sales tax and income tax reporting until withdrawals were made, even though fees had been earned.
3. Attacks on Judicial Integrity. The most serious misconduct involved written allegations that the Supreme Court and its members:
   • “Fabricated evidence” in Healy I by quoting an email “out of context” and by making statements about Healy’s access to records without record support.
   • Used that fabricated evidence to decide subsequent cases (Healy II and Mines).
   • Engaged in “misconduct” and due process violations in their handling of the Healy appeals.
   Volesky later admitted he had no factual basis to claim the justices created false evidence and acknowledged that the “fabrication” allegation was added to avoid dismissal by attempting to circumvent judicial immunity.

B. Rules Violated

The Court, largely affirming the Board and Referee, held that Volesky violated:

• SDCL 16‑18‑20.2 and Rule 1.15 – by commingling client funds with earned fees and misusing the trust account.
• Rule 1.1 (Competence) – by failing to understand and apply fundamental doctrines like res judicata and Rooker‑Feldman, and by persisting in baseless re‑litigation.
• Rule 3.1 (Meritorious Claims and Contentions) – by bringing and defending proceedings with no good‑faith legal or factual basis, including the federal lawsuits against the Court and Judge Smith.
• Rule 8.2(a) – by making knowingly false or recklessly indifferent statements about the integrity of judges, specifically allegations of “fabricated evidence.”
• Rule 8.4(d) – by engaging in conduct prejudicial to the administration of justice through unfounded attacks on judicial integrity and abuse of legal process.

C. Sanction Imposed

Weighing aggravating and mitigating factors under the ABA Standards and South Dakota precedent, the Court:

• Suspended Volesky’s license to practice law in South Dakota for 90 days (longer than the 30 days recommended below).
• Ordered a two‑year probationary period upon reinstatement, during which:
  • He must work with a mentor attorney approved by the Disciplinary Board.
  • He must provide the mentor with copies of all civil complaints he files and quarterly updates on those cases.
  • He must comply with any additional Board conditions and make his trust account records available on request.
• Required him to reimburse the State Bar for disciplinary costs and to pay the $10,000 sanction previously imposed by Judge Smith, as conditions of reinstatement.

Justice Salter agreed with the rule violations but dissented from the sanction, arguing that disbarment, not suspension, is the only appropriate response to an unrepentant lawyer willing to accuse courts of fabricating evidence for strategic advantage.

III. Factual and Procedural Background

A. The Healy Ranch Litigation Saga

1. The Original State Court Litigation (Healy I, Healy II, Mines)

Before Volesky’s involvement, Bret Healy had already litigated, and lost, several actions concerning his claimed ownership interest in the family ranch:

• Healy v. Osborne, 2019 S.D. 56 (Healy I). Healy sued his mother, brothers, their lawyer, and ranch entities (HRP and HRI), asserting broad tort and contract claims and seeking to pierce HRI’s corporate veil. The circuit court dismissed the case as time‑barred and awarded attorney’s fees as a frivolous and malicious suit. The Supreme Court affirmed, emphasizing that Healy had filed the action to block a land sale, not to vindicate a believed enforceable interest, citing a June 2016 email where Healy appeared to acknowledge he had given up a larger interest.
• Healy Ranch, Inc. v. Healy, 2022 S.D. 43 (Healy II). While Healy I was pending on appeal, Healy filed a notice of claim under the South Dakota Marketable Title Act. HRI responded with a quiet title action. The Supreme Court held that, even though the claim might not be time‑barred under the SDMTA, res judicata barred Healy’s effort to quiet title in HRP, because he was reasserting “the same wrong” as in Healy I: alleged wrongful conduct to vest HRI with ranch ownership.
• Healy Ranch P’ship v. Mines, 2022 S.D. 44 (Mines). HRP, through Healy, filed a quiet title action against the Mines family concerning a parcel (RH‑2). The Court affirmed summary judgment for Mines based on judicial estoppel and SDCL 15‑3‑15, holding Healy could not recast his claims into a quiet title action inconsistent with his prior positions and with long‑standing permissive use by others.

2. The Federal RICO Case: Healy v. Fox

In 2021, after hiring Volesky, Healy pursued a federal RICO claim alleging mail fraud, bank fraud, and racketeering against family members and attorney Fox. The federal district court dismissed the case on res judicata grounds, finding that the RICO claims arose from the same underlying 1995 transfer at issue in Healy I. The Eighth Circuit affirmed, echoing the Healy II language that Healy was again addressing “the same wrong” as in the original state litigation.

3. The Federal Civil Rights Case Against the Supreme Court: Healy III

In August 2023, Volesky filed a federal action (Healy III) on behalf of Healy and HRP against:

• The Supreme Court of South Dakota;
• Its justices in their official and individual capacities;
• Circuit Judge Jon Sogn (who had sat by designation in earlier Healy appeals);
• HRI, various family members, attorney Fox, and Mines.

The complaint and amended complaint alleged due process violations, fraud, misrepresentation, and misuse of a “fake email.” Specifically, Healy claimed a June 2016 email quoted in Healy I was “altered, truncated, and misleading,” and that the Court had used this “fake email” to defeat his statute of limitations arguments.

The proposed second amended complaint, filed by motion in February 2024, escalated the rhetoric, repeatedly accusing the justices and Judge Sogn of:

• “Knowingly fabricating evidence and using the fabricated evidence” to decide cases against Healy;
• Quoting only part of the email and “omitting material language” to create “fake” evidence;
• Using those decisions, allegedly based on fabricated evidence, to decide later related cases.

The federal district court (Judge Lange) dismissed the action:

• As to the Supreme Court and its members, for lack of jurisdiction under the Rooker‑Feldman doctrine, and on Eleventh Amendment and judicial immunity grounds.
• As to other defendants, on multiple layers of res judicata, noting the plaintiffs were seeking “extraordinary relief” in the form of effective reversal of three final South Dakota Supreme Court decisions and an Eighth Circuit decision.

The court also granted Rule 11 sanctions against Healy and Volesky, finding the claims were not warranted by existing law or a good‑faith argument for change. It later denied reconsideration and leave to file the second amended complaint; the Eighth Circuit affirmed without opinion.

4. The Dissolution Proceeding and Sanctions in State Court

Separately, HRI brought a court‑supervised dissolution action in state court, and Volesky, representing Healy and/or HRP, opposed it by again asserting that Healy or HRP owned a majority interest in HRI—essentially re‑opening issues settled in prior cases. The circuit court (Judge Smith) not only dismissed the action but issued an order to show cause regarding sanctions under SDCL 15‑6‑11(b).

Ultimately, the court imposed:

• $240,000 in sanctions against Healy; and
• $10,000 in sanctions against Volesky, expressly noting it was “duty bound” to report him to the Disciplinary Board.

Healy appealed his sanction pro se; that appeal was pending at the time of the disciplinary opinion. Volesky did not appeal the sanction against him.

5. The Second Federal Civil Rights Suit: Miller

After the dissolution‑related sanctions, Volesky filed another federal § 1983 action (Healy v. Miller) on behalf of Healy against Judge Smith and the Brule County clerk of courts, claiming the sanctions violated Healy’s constitutional rights. Disciplinary proceedings began while this and Healy III were pending; Volesky then withdrew from both matters, after which Healy proceeded pro se. The district court dismissed Miller, and the Eighth Circuit affirmed without opinion.

B. The Disciplinary Proceedings

1. Board Investigation and Formal Accusation

Two defense attorneys from the Healy litigation and Judge Smith filed complaints. The Board investigated both the litigation conduct and the trust account. At a Board hearing, Volesky appeared with counsel and was questioned extensively. The Board’s findings included that:

• The series of lawsuits—culminating in suing the Supreme Court—were essentially attempts to overturn Healy I.
• Volesky acknowledged that filing the Supreme Court lawsuit was his idea, based on his legal judgment, not merely a client demand.
• The “fabrication” allegations lacked a proper factual or legal basis and were motivated by an effort to avoid dismissal and judicial immunity.
• Trust‑account practices involved major commingling and underreporting of earned fees.

The Board concluded that Volesky violated:

• Rule 1.1 (competence);
• Rule 3.1 (frivolous proceedings);
• Rule 8.2 (false statements about judges);
• Rule 8.4(d) (conduct prejudicial to the administration of justice); and
• SDCL 16‑18‑20.2 (trust account requirements).

It recommended a 30‑day suspension and proof that personal funds had been removed from the trust account.

2. Referee’s Hearing and Recommendation

Retired Judge Craig Pfeifle was appointed as Referee and held an evidentiary hearing where Volesky testified at length. Key points from his testimony:

• He had, since the Board hearing, changed his trust account practices (removing earned fees promptly), but still refused to concede that prior practices violated the rules.
• He alternated between suggesting Healy had the idea for federal litigation and admitting the overall strategy was his own.
• He acknowledged that Judge Lange had described the merits of Healy III as “highly dubious,” but did not reconsider his course.
• He admitted that he had no factual basis to claim the justices created or falsified emails, but maintained that the Court had used an email and certain records “out of context” or “without adequate support in the record.”
• He conceded that he saw the “fabricated evidence” allegations as a way to “plead around” judicial immunity and avoid dismissal, and later claimed his main mistake was not couching them as “upon information and belief.”
• He arranged for Healy to indemnify him for any sanctions in the federal cases and testified he “kept plowing ahead,” and would have continued representing Healy but for the disciplinary complaints.

The Referee adopted many of the Board’s factual findings, highlighted Volesky’s refusal to recognize the wrongfulness of his conduct, and recommended:

• A 30‑day suspension; and
• At least six months of probation with a mentor to assist with rules compliance.

3. Argument Before the Supreme Court

At oral argument, Volesky’s counsel said that he was “remorseful for being before the Court” but did “not believe he did anything wrong.” Volesky himself apologized for being there and professed respect for the Court and the profession, yet still denied violating any Rules of Professional Conduct. The Court, sitting despite having been sued in the underlying litigation, then issued its disciplinary opinion.

IV. Precedents and Authorities Cited

A. South Dakota Disciplinary and Regulatory Cases

• In re Discipline of Russell, 2011 S.D. 17. Cited in footnote 1 to emphasize the Supreme Court’s responsibility as the regulatory body for attorney licensing and discipline, with a duty to protect the public from unfit attorneys and to maintain high ethical standards.
• In re Discipline of Dorothy, 2000 S.D. 23. Reaffirmed the standard of review: the Court gives “careful consideration” to a referee’s findings based on live testimony and will not disturb them if supported by the evidence, but gives no deference to recommended sanctions.
• In re Discipline of Mines, 2000 S.D. 89. Cited for both standard of review and sanction framework; confirms that discipline options include public censure, probation, suspension up to three years, and disbarment.
• In re Discipline of Ravnsborg, 2024 S.D. 58. Quoted for the principle that license to practice law is a privilege conferred by the Court, and that attorneys are officers of the court bound to conform to ethical standards. Also cited on deference to factual findings based on live testimony.
• In re Discipline of Laprath, 2003 S.D. 114. Used to underscore the Court’s “serious” obligation to ensure public confidence in the competency of the bar and to articulate that the likelihood of repeated misconduct is central to sanction choice.
• In re Discipline of Martin, 506 N.W.2d 101 (S.D. 1993). Cited in the context of punishment factors; emphasizes that sanctions depend on seriousness and likelihood of repetition.
• In re Discipline of Claggett, 1996 S.D. 21. Provides a key precedent on the Court’s disciplinary authority and the adoption of ABA aggravating and mitigating factors.
• In re Discipline of Tidball, 503 N.W.2d 850 (S.D. 1993); In re Discipline of Light, 2000 S.D. 100. Both address trust account obligations under Rule 1.15 and SDCL 16‑18‑20.2, reinforcing the prohibition on commingling and the need for proper record‑keeping.

B. The Underlying Healy Litigation

• Healy I (2019 S.D. 56), Healy II (2022 S.D. 43), and Mines (2022 S.D. 44). These cases are not merely background; they are the bedrock underlying the res judicata and estoppel conclusions in subsequent federal and disciplinary proceedings. The Supreme Court repeatedly highlights that the ownership dispute over the Healy Ranch has been definitively resolved and that Healy’s later suits, often through Volesky, attempted to re‑open the same core “wrong” in different legal guises.
• Healy v. Fox, 572 F. Supp. 3d 730 (D.S.D. 2021), aff’d, 46 F.4th 739 (8th Cir. 2022). The federal RICO decision confirms that the federal courts also saw the claims as barred by res judicata, explicitly echoing language from Healy II.
• Healy v. Supreme Court of South Dakota, 2023 WL 8653851 (D.S.D. 2023), aff’d, 2025 WL 999468 (8th Cir. 2025). This is the Healy III case in which Volesky’s most serious allegations against the Court were made and sanctioned under Federal Rule 11.
• Healy v. Miller, 2024 WL 3823097 (D.S.D. 2024). The later § 1983 action challenging Judge Smith’s sanctions order, also dismissed and affirmed, and illustrative of the continuing pattern of precluded litigation.

C. Out-of-State and Federal Authorities on Frivolous Filings and Attacks on Judges

• Buster v. Greisen, 104 F.3d 1186 (9th Cir. 1997). Cited to show that a reasonable and competent inquiry should reveal when a case is barred by res judicata or collateral estoppel, and that ignoring such preclusion can justify sanctions. The Court uses this to frame Volesky’s repeated Healy‑related filings as evidence of incompetence and frivolity.
• Iowa Supreme Court Attorney Disciplinary Bd. v. Caghan, 927 N.W.2d 591 (Iowa 2019). Used to illustrate Rule 3.1 violations where an attorney “created” a factual assertion (lack of knowledge of a foreclosure) to avoid summary judgment, mirroring the Court’s view that Volesky “created” the “fabrication” narrative to sidestep judicial immunity.
• Berman & Feldman v. Winn Dixie, Inc., 684 So. 2d 320 (Fla. Dist. Ct. App. 1996). Another example of counsel “interlineating” insupportable allegations to create a cause of action where none existed, cited to underscore the impropriety of pleading facts solely to survive dismissal.
• Lawyer Disciplinary Bd. v. Hall, 765 S.E.2d 187 (W. Va. 2014). A central precedent for the Court’s Rule 8.2 and 8.4 analysis. In Hall, an attorney accused a judge of fabrication of evidence, corruption, and fraud in pleadings. The West Virginia court found violations of Rules 8.2(a) and 8.4(d) and imposed a three‑month suspension, emphasizing that baseless attacks on judicial integrity are intolerable and undermine public confidence.
• Anthony v. Virginia State Bar, 621 S.E.2d 121 (Va. 2005). Involved an attorney who accused courts of “misuse of judicial power,” “material judicial misconduct,” and “major fabrications of evidence.” The Virginia Supreme Court held these statements violated Rule 8.2(a) because they were made with reckless disregard for truth or falsity.
• In re Reed, 716 N.E.2d 426 (Ind. 1999). Found a Rule 8.2 violation where an attorney accused a judge of ignorance, improper political influence, and fabrication of a report. This reinforces that such accusations, absent solid factual basis, are sanctionable across jurisdictions.

The Court also references:

• The Model Rules of Professional Conduct, especially Comments 1–2 to Rule 3.1 (duty not to abuse legal procedure; need for good‑faith arguments) and the broad application of Rule 8.4(d) to conduct prejudicial to the administration of justice.
• The Restatement (Third) of the Law Governing Lawyers § 5, describing Rule 8.4(d)’s broad drafting and its application to attacks on judges and abuse of process.
• ABA Standards for Imposing Lawyer Sanctions, adopted in South Dakota via cases like Claggett, Light, and Mines for structuring aggravating and mitigating factor analysis.

V. The Court’s Legal Reasoning

A. Trust Account Misconduct: SDCL 16‑18‑20.2 and Rule 1.15

Under SDCL 16‑18‑20, -20.1, and -20.2, South Dakota lawyers must maintain trust accounts in strict conformity with detailed procedures, including:

• Maintaining a separate account for funds held for clients;
• Proper ledgering by client matter; and
• Avoiding commingling with personal or firm funds.

Rule 1.15(a) mirrors this:

A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account...

The Court, relying on Tidball and Light, had little difficulty concluding that Volesky’s use of the trust account as a “personal savings account” constituted commingling. Facts supporting this conclusion included:

• Large balances representing earned fees left in trust for extended periods;
• Non‑client‑specific withdrawals, made in random amounts unrelated to fee‑earning for specific matters;
• His own description of the practice and his subsequent behavioral change once the Board scrutinized him.

Although he argued he was uncertain about when funds became “earned” for removal from trust, he simultaneously testified that he knew personal funds should not be kept in a trust account. The Court treated his post‑investigation reforms as mitigation, but not as a defense. It found a clear violation of both SDCL 16‑18‑20.2 and Rule 1.15.

B. Rule 1.1: Incompetent Representation Through Re‑Litigation and Doctrinal Misunderstanding

Rule 1.1 requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Court agreed with the Referee that:

[H]e did not possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the competent representation of Bret Healy... He was unable to understand existing legal authority, or recognize the finality of decisions made by this State’s highest court.

The Court’s key move is to link lack of competence to persistent re‑litigation of claims that any reasonably competent lawyer would recognize as precluded by:

• Res judicata / claim preclusion – Already applied explicitly in Healy II and Healy v. Fox.
• Judicial estoppel – Applied in Mines to prevent inconsistent positions regarding the RH‑2 parcel.
• Rooker‑Feldman – Clearly barring federal district courts from reviewing state supreme court decisions, as in Healy III.

By repeatedly filing actions that attempted to re‑open ownership of HRI and the ranch—despite those doctrines having been applied against his client multiple times in both state and federal courts—Volesky displayed either:

• A profound misunderstanding of basic preclusion doctrines; or
• A deliberate unwillingness to respect those doctrines and final state and federal judgments.

The Court suggests that either scenario is incompatible with Rule 1.1, because competent representation requires not only technical knowledge but also the judgment to accept adverse final decisions and to refrain from futile litigation.

C. Rule 3.1: Frivolous Claims and Abuse of Process

Rule 3.1 forbids an attorney from bringing or defending proceedings, or asserting issues, unless there is a non‑frivolous basis in law and fact, including a good‑faith argument for modifying existing law. The Court relies on Model Rule comments:

• Lawyers have a duty not to abuse legal procedure.
• An action is frivolous if the lawyer cannot make a good‑faith argument on the merits or for change in the law.

The Court applies this in two overlapping ways:

1. Precluded Ownership Claims. The Court holds that the repeated attempts in Healy III and the dissolution action to litigate HRI and ranch ownership lacked a good‑faith basis, given the clear res judicata and related rulings in Healy I, Healy II, Mines, and Healy v. Fox. Buster and Caghan are used to show that a competent lawyer must recognize when such doctrines bar suit, and that ignoring this to “buttress” a case is sanctionable.
2. The “Fabrication” Allegations as Strategic Pleading. The Court is especially troubled by Volesky’s admission that he included allegations of fabricated evidence as a “stronger way to frame” the case to “avoid a dismissal” and “plead around” judicial immunity. Rather than being grounded in evidence, the allegations were consciously used to try to transform ordinary judicial actions into alleged non‑judicial wrongdoing that might escape immunity.

The Court thus treats the fabrication narrative as an abuse of process: making up a serious accusation against the Court not because the facts support it, but because it may preserve the case. That falls squarely within Rule 3.1’s prohibition of frivolous contentions.

D. Rule 8.2(a): False Statements About Judicial Integrity

Rule 8.2(a) prohibits a lawyer from making a statement that the lawyer knows to be false or makes with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer. This rule sits at the intersection of attorney speech and professional regulation, particularly where a lawyer criticizes judges.

The Court’s key findings:

• Volesky repeatedly alleged that the Supreme Court and its justices “fabricated evidence” and used “fake” evidence.
• He ultimately acknowledged that he had no factual basis to suggest that the justices created or falsified emails or other evidence.
• He admitted his purpose was strategic—to strengthen the pleading and overcome judicial immunity.

The Court draws on Hall, Anthony, and Reed, where similar accusations of corruption, fabrication, and fraud by judges in pleadings were found to violate Rule 8.2(a). The reasoning is consistent:

• Statements impugning a judge’s character or integrity must have an objectively reasonable factual basis.
• Where allegations are “unsubstantiated” and made with reckless disregard of their truth, they cross the line from protected advocacy into professional misconduct.

Crucially, the Court implicitly rejects the idea that an attorney can sanitize a baseless accusation by rephrasing it as being made “upon information and belief.” Volesky’s own view that his only mistake was not adding those words underscores the Court’s concern: Rule 8.2 looks to the lawyer’s mental state and the presence or absence of a factual foundation, not to formalistic language in the pleading.

E. Rule 8.4(d): Conduct Prejudicial to the Administration of Justice

Rule 8.4(d) defines as “professional misconduct” any conduct that is prejudicial to the administration of justice. The Court cites the Restatement and the Model Rules to show that 8.4(d) is intentionally broad and often applied to:

• Conduct connected with court proceedings;
• Attacks on judicial integrity; and
• Abuse of process, including frivolous litigation.

The Court closely follows Hall in concluding that the same statements violating Rule 8.2(a) also violate Rule 8.4(d). Allegations that the state’s highest court fabricated evidence:

• “Threatened the integrity and fairness of the judicial system”;
• Were knowingly false or made with reckless disregard of the truth;
• Were designed to ridicule and undermine the legal system.

Beyond harm to individual judges, such accusations, when unfounded, erode public confidence in an impartial judiciary and in the legal profession’s honesty. The Court sees this as a direct affront to the “administration of justice,” meriting serious discipline independent of the trust account issues.

F. Sanction Analysis: Aggravation, Mitigation, and the Dissent

Drawing on the ABA Standards (as adopted in Claggett and Light), the Court considers:

1. The duty violated. Volesky violated duties:
   • To clients (competence; meritorious claims);
   • To the public (trust‑account integrity);
   • To the legal system (respect for final judgments; truthful statements about judges).
2. Mental state. The Court distinguishes between:
   • Trust‑account issues, attributed mainly to negligence/inexperience (though still serious); and
   • The litigation misconduct and attacks on judges, which it characterizes as intentional, especially where Volesky admitted strategic motive in asserting fabrication.
3. Actual or potential injury. The decision emphasizes:
   • Substantial financial harm and sanctions borne by Healy (and fees paid to pursue futile claims);
   • The cost and burden imposed on opposing parties repeatedly forced to defend precluded suits;
   • The strain placed on court resources handling meritless and duplicative litigation;
   • The damage to public confidence from unfounded claims that courts manufactured evidence.
4. Aggravating and mitigating factors. The Court finds:
   • Mitigating:
     • No prior disciplinary history;
     • Relative youth and inexperience (six years at the bar; only two years when Healy representation began);
     • Isolated misconduct to one “litigious and particularly difficult” client (aside from trust account issues);
     • Positive reports from Judge Smith that Volesky is otherwise a “good attorney” and welcome in his courtroom;
     • Prompt reform of trust‑account handling after the Board’s scrutiny.
   • Aggravating:
     • A pattern of multiple offenses (trust account, repeated frivolous filings, and personal attacks on the judiciary);
     • Intentional and strategic use of false allegations to avoid dismissal;
     • Refusal to accept responsibility or acknowledge the wrongfulness of his conduct, despite sanctions from several courts and his own testimony disavowing a factual basis for his claims;
     • The potential systemic harm from undermining confidence in the judiciary.

The Court explicitly notes that Volesky’s ongoing denial of wrongdoing is “concerning” and raises doubts about future misconduct. Nevertheless, it concludes that a rehabilitative approach—significant suspension plus structured probation and mentoring—can protect the public while offering an opportunity for reform.

Justice Salter, in dissent on the sanction, is more skeptical. He emphasizes:

• The “palpable” contradiction between professed respect for the Court and continued belief in its corruption.
• The “half‑hearted” nature of Volesky’s apologies, tailored to admit nothing.
• The “titanic” lack of accountability.

He frames the central question starkly: can a lawyer who is willing to falsely accuse courts of manufacturing evidence for litigation advantage remain a member of the Bar? For him, the answer is “no,” and he would disbar, citing Application of Widdison for the proposition that practicing law is a “matter of license and high privilege,” not a right.

VI. Complex Concepts and Terminology Simplified

A. Res Judicata, Collateral Estoppel, and Judicial Estoppel

• Res judicata / claim preclusion: Once a court issues a final judgment on the merits, the same parties cannot bring another lawsuit based on the same “transaction” or nucleus of facts, even if they frame it under different legal theories. The Court repeatedly notes that Healy’s lawsuits all arose from the same alleged wrongful transfer of the ranch to HRI in 1995.
• Collateral estoppel / issue preclusion: When a specific issue has been actually litigated and necessarily decided in a prior case, that issue cannot be re‑litigated by the same parties in another case.
• Judicial estoppel: Prevents a party from taking a legal position in a case that is inconsistent with a position successfully taken in earlier proceedings. In Mines, the Court prevented Healy from recasting earlier positions about RH‑2 into a new quiet title claim inconsistent with decades of permissive use and tax payments by others.

B. The Rooker‑Feldman Doctrine

The Rooker‑Feldman doctrine bars federal district courts from acting as appellate courts over state‑court judgments. Only the U.S. Supreme Court can review state high‑court decisions. Thus, in Healy III, the district court properly held that it lacked jurisdiction to “reverse or vacate” South Dakota Supreme Court decisions, undermining any jurisdictional basis for Healy and Volesky’s claims against the Court.

C. Judicial Immunity

Judges are generally immune from lawsuits for acts taken in their judicial capacity, so long as they act within jurisdiction. This immunity is designed to protect judicial independence. Volesky admitted he tried to plead around this doctrine by casting the justices’ actions as “fabrication of evidence,” hoping to characterize their conduct as non‑judicial, unauthorized behavior falling outside immunity. The Court views this as a central ethical failing, particularly because the allegations lacked any factual foundation.

D. Rule 8.2 and Lawyer Speech About Judges

Rule 8.2(a) does not prohibit all criticism of judges. Lawyers may, and sometimes must, challenge judicial conduct or decisions. But:

• They must have an objectively reasonable basis for allegations of misconduct or corruption.
• They must not make statements they know to be false or with reckless disregard for truth.

By accusing the Supreme Court of fabricating evidence—a particularly explosive charge—without any factual support and for tactical reasons, Volesky crossed from permissible criticism into professional misconduct. The Court’s reliance on Hall, Anthony, and other cases underscores that South Dakota aligns with a broad consensus that unsubstantiated attacks on judicial integrity are sanctionable.

E. Attorney Trust Accounts and Commingling

A lawyer’s trust account is a special bank account used to hold funds belonging to clients or third parties—such as retainers not yet earned, settlement proceeds awaiting distribution, or escrow funds. Core principles:

• No commingling: Client funds must be kept separate from the lawyer’s own funds. The lawyer cannot treat the trust account as a savings or operating account.
• Prompt withdrawal of earned fees: Once fees are earned (under the engagement agreement and applicable law), they should move from the trust account to the operating account.
• Accurate ledgers and reconciliations: Each client must have a separate ledger; the sum of those ledgers must reconcile with the bank balance.

Volesky’s practice of leaving earned fees in trust for months or years and withdrawing random amounts violated these principles and exposed client funds to risk (e.g., from the lawyer’s creditors or misuse). That also had tax implications because sales tax and income tax were deferred contrary to the economic reality that fees were already earned.

VII. Impact and Future Implications

A. Clear Warning on Baseless Allegations Against Judges

In re Discipline of Volesky is a strong signal that:

• Accusing judges of “fabricating evidence” or similar misconduct without solid factual support will almost certainly trigger Rule 8.2 and 8.4 violations.
• Couching those allegations as litigation strategy or as “information and belief” does not cure the ethical breach.
• Sanctions will be serious, even for relatively new lawyers, especially where the allegation is designed to undercut immunity or finality doctrines.

Given the Court’s extensive reliance on out‑of‑state authority, the decision solidifies South Dakota’s alignment with a national consensus on the limits of lawyer criticism of judges.

B. Competence and Frivolous Litigation in the Age of Repeat Litigation

The opinion also serves as a cautionary example of how:

• Repeated attempts to re‑litigate the same underlying dispute—simply re‑packaged under different legal theories (RICO, § 1983, dissolution challenges)—can reflect incompetence (Rule 1.1) and frivolity (Rule 3.1).
• Attorneys must rigorously analyze preclusion doctrines before filing suit, particularly when a client has a “litigious and particularly difficult” history and has already lost multiple related cases.

For South Dakota practitioners, the message is that zeal for the client’s “cause” must be constrained by a disciplined understanding of res judicata, estoppel, and jurisdictional bars.

C. Young Lawyers, Mentorship, and Trust Accounts

The Court recognizes Volesky’s youth and lack of mentoring as mitigating but not exculpatory. The imposition of a probationary regime with a mentor and trust‑account oversight may set a template for future cases involving inexperienced attorneys:

• Discipline may increasingly combine punitive (suspension) and rehabilitative (mentoring, monitoring) elements.
• Younger lawyers are put on notice that trust‑account mismanagement, even if born of ignorance, is serious and will draw scrutiny.

D. The Court Sitting in Judgment of Its Own Accuser

Although the Court does not dwell on it beyond footnote 1, this case also illustrates how a court can respond when it is itself the target of litigation misconduct. The opinion:

• Invokes judicial canons requiring judges to hear and decide matters except when disqualification is required.
• Anchors the Court’s continued participation in its role as the state’s attorney‑discipline authority with institutional responsibilities that transcend any specific case.

The Court’s calm, structured analysis—relying on external precedents and objective standards rather than any expression of personal affront—may serve as a model for balancing impartiality with the unavoidable duty to regulate the bar, even in emotionally charged circumstances.

E. The Dissent’s Call for Disbarment

Justice Salter’s separate opinion underscores that, for at least one member of the Court, a 90‑day suspension is under‑inclusive. He sees:

• The absence of genuine remorse;
• The strategic nature of the false allegations;
• The fundamental incompatibility of such conduct with the privilege of practicing law.

His view may influence how future cases treat lawyers who, unlike Volesky, lack the mitigating context of inexperience or show even more entrenched defiance. The dissent places a marker that, in similar or worse circumstances, disbarment is squarely on the table.

VIII. Conclusion

In re Discipline of Volesky is a significant addition to South Dakota’s disciplinary jurisprudence. It clarifies that:

• Trust‑account violations, even by newer solo practitioners, will not be excused as mere technical lapses.
• Repeated re‑litigation of settled disputes, in defiance of res judicata, estoppel, and jurisdictional doctrines, can constitute both incompetence and frivolous advocacy.
• Most importantly, baseless accusations that courts have “fabricated evidence” or otherwise engaged in corruption, when made in pleadings, are a grave breach of professional duty, violating Rules 8.2 and 8.4 and warranting serious sanctions.

While the majority chooses a rehabilitative path—90 days’ suspension followed by structured probation and mentoring—the opinion as a whole, including Justice Salter’s dissent, sends an unmistakable message: lawyers are officers of the court, and using false attacks on judicial integrity as a litigation tactic is fundamentally incompatible with that role. The case will likely be cited going forward whenever South Dakota lawyers approach the ethical boundary between vigorous advocacy and destructive, unfounded assaults on the judiciary and the rule of law.