Brian K. Kirby

Of Counsel
Sioux Falls

Brian Kirby practices in the areas of corporate and business law, mergers and acquisitions, criminal, and trusts and estates. For more than three decades, he has focused his legal efforts on representing corporations and business entities from startup, to ongoing operations, to mergers and acquisitions. He counsels family-run, closely held businesses and companies on a variety of matters.

Whether the legal issues involve friendly business ventures, transactions, and opportunities or contentious litigation, Brian's clients are well-represented. Strategically dovetailed with his business practice, Brian has assisted hundreds of individuals, from young entrepreneurs to high net-worth individuals in business succession planning, estate and trust planning, guardianships and conservatorships, and employment matters. Brian also has an extensive white-collar and blue-collar criminal practice and has defended numerous individuals in both state and federal courts.

Experience 

Representative Matters

  • In 2012, began representation of a defendant/client employee of a crop insurance company who was seriously underpaid commissions after she terminated employment. The plaintiff employer filed a preliminary injunction to enforce a non-compete provision of the employment contract. The preliminary injunction was denied and the non-compete was later declared unenforceable. The plaintiff employer then filed a lawsuit alleging numerous counts and alleging hundreds of thousands of dollars in damages. Our client, in turn, answered and counterclaimed for nonpayment of hundreds of thousands of dollars in commissions. After over six years of intense activity in this case, a jury trial was held in March 2018 wherein the jury determined that our client was underpaid awarded damages and rejected all of plaintiff employer's claims and was ordered to pay attorney's fees to our client.
  • Guide family businesses in estate planning and business succession planning in order to assist in family business entity's transfer of ownership. Consult clients in various estate planning, tax and business succession methods to ensure continuation of family business.
  • Formation of hundreds of estate plans from young individuals/couples to the affluent. Estate plans created ranged from the introductory, such as wills, trusts, and durable powers of attorney, to more complex planning, including irrevocable trusts (ILITS and otherwise), directed trusts, charitable trusts, asset protection Trusts, pre- and post-nuptial agreements, and dynasty trusts.

Professional Highlights

Professional Activities

National Association of Estate Planners & Councils (NAEPC), Accredited Estate Planner (AEP) Subcommittee, Member

State Bar of South Dakota, Real Property, Probate and Trust Division, Member and Past Chair, 2011-2012; Business Law Committee, Member; Lawyer Referral Committee, Member

Sioux Falls Estate Planning Council, Member, President, 2011-2012

Recognition & Accomplishments

Great Plains Super Lawyers, 2012-2020

Chambers USA, real estate law, 2008

Accredited Estate Planner AEP® from the National Association of Estate Planners & Councils

Recognized by the National Academy of Criminal Defense Attorneys as a "Top 10 Criminal Defense Attorney in South Dakota"

Speaking Engagements

"Business and Succession Planning for Family Businesses," Prairie Family Business Association Annual Conference – Sioux Falls, South Dakota, April, 2019

"Top Items To Include In Employment Manual," Prairie Family Business Association Annual Conference – Sioux Falls, South Dakota, April, 2018

"The Role of a Trust in Your Succession Plans: How Do You Prepare Your Heirs?," Lunch & Learn Webinar, Prairie Family Business Association, April, 2017

Publications

Legal Casenote published, Vol. 33, Issue 1, South Dakota Law Review

Lead Article published, Vol. 36, Issue 3, South Dakota Law Review

Lead Article published, Vol. 44, Issue 2, South Dakota Law Review

Numerous Articles for Trade Publications and Newspapers

Credentials 

Education

University of South Dakota (M.B.A. 1989)

University of South Dakota School of Law (J.D. 1988)

Arizona State University (B.S., Economics, 1985)

Admissions

South Dakota

U.S. District Court

U.S. Court of Appeals for the Eighth Circuit