South Dakota: How Contingency Fees Work, Explained

The percentage is negotiated freely — and South Dakota's ethics guidance makes clear that even a flat fee doesn't escape the same reasonableness review.

The core promise: no recovery, no fee

A contingency fee means the attorney's fee is contingent — dependent — on actually winning or settling the case. If there's no recovery at all, the client generally owes no attorney fee, regardless of how much work went into the case.

What Rule 1.5 actually requires

Rule 1.5 of the South Dakota Rules of Professional Conduct requires that a fee be reasonable, assessed against eight factors: the time and labor required, the novelty and difficulty of the questions involved, the skill needed, the fee customarily charged in the locality for similar legal services, the amount involved, and whether the fee is fixed or contingent, among others.

Flat fees get the same scrutiny

South Dakota ethics guidance has addressed this directly. State Bar Ethics Opinion 2000-5a confirms that a flat-fee agreement, even for a specific service, must still allow for a review of the fee at the conclusion of representation to ensure it remains reasonable under those same eight factors — the structure of the fee doesn't change the underlying standard it has to meet.

A refund right if the attorney is discharged early

Related guidance confirms that under Rule 1.16(d), a client who discharges their lawyer is entitled to a refund of any advanced payment of fee that has not yet been earned — relevant context for anyone considering changing attorneys partway through a case, even outside a strict contingency arrangement.

No specific percentage written into law

Beyond the reasonableness requirement, South Dakota sets no specific percentage ceiling for a personal injury contingency fee. The rate is negotiated privately between attorney and client, with one-third of the recovery being a commonly used figure in practice.

How contingency fees work — frequently asked questions

What does "contingency" actually mean in a South Dakota fee agreement?

It means the attorney's fee is contingent on winning or settling the case. If there's no recovery, the client generally owes no attorney fee at all.

What does Rule 1.5 actually require of a contingency fee in South Dakota?

The fee must be reasonable, judged against eight factors including the time and labor required, the skill needed, the customary fee for similar work, and whether the fee is fixed or contingent.

Does South Dakota treat flat fees differently from contingency fees?

Not in terms of scrutiny — South Dakota ethics guidance confirms a flat fee must still pass a separate reasonableness review under the same Rule 1.5 factors used to judge a contingency fee.

Can a South Dakota client get a refund if an attorney is discharged partway through a case?

Yes — South Dakota ethics guidance confirms a discharged lawyer must refund any advanced payment of fee that has not been earned, under Rule 1.16(d).

Is a contingency fee agreement negotiable in South Dakota?

Yes. The rate is set by private agreement between attorney and client, subject to the reasonableness standard of Rule 1.5.

This page provides general guidance only and is not legal advice. Figures are based on Rule 1.5 of the South Dakota Rules of Professional Conduct and South Dakota State Bar Ethics Opinion 2000-5a, verified per our methodology. Confirm your actual fee agreement with a licensed South Dakota attorney before acting.