Brian K. Kirby

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.

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.
• Formation of corporations, limited liability companies, partnerships, and other like entities. Created shareholder agreements, buy-sell agreements, professional service agreements, employee stock purchase option plans, and other documents. Successful completion of mergers, acquisitions, spin-offs, 1031 like-kind exchanges, and outright sales and purchases.
• Represented co-guardians and co-conservators in a contested guardianship and conservatorship against remote, unknown heirs who wanted to remove the co-guardians and co-conservators in order to gain access to a $30 million estate. The court ruled in favor of the clients on all counts.
• Represented individuals in trust/will contests, both in prosecution and defense.
• Represented a telecommunications company in securing legislative approval in several states for operation of telecommunications relay system. Engaged in lobbying in several states and assisted in the creation of laws which would authorize the actions. Efforts generated client tens of millions of dollars in revenue and provided hundreds of thousands of hearing impaired individuals access to telephonic communication.
• Won a four-day arbitration involving unpaid electrical subcontracts and change orders in the construction of a $15 million soybean oilseed processing plant.
• Commenced and completed litigation due to breach of subcontract through the filing of a mechanic's lien on a $10+ million construction project.
• Represented family business majority owner involved in nine separate actions against a disgruntled terminated family member. All actions were won, dismissed in client's favor or settled for nuisance value.
• Represented businesses in intra-company disputes involving terminations, shareholder oppression, shareholder, officer and director disputes, employment issues, governmental regulations, EEOC discrimination complaints/lawsuits, vendor or third-party lawsuits, and the like.
• Extensive white- and blue-collar criminal practice (representations, investigations, hearings, and trials) for over 30 years in federal and state courts.

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

American Bar Association, Member

Second Judicial Circuit Bar Association, Member, Past President, 1999-2000

Recognitions and Accomplishments

Great Plains Super Lawyers, 2012-2018

Chambers USA: America’s Leading Lawyers for Business, 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"

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

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

"Ethics, Tips & Tricks When Working with Pro Se Litigants," South Dakota State Bar, Young Lawyer's Section, February, 2017

"Special Needs Trusts," Trusts and Estates Lunch and Learn Series, Seminar, February, 2017

"Sweat Equity: How to treat those working in the business versus those not working in the business," Prairie Family Business Association - North Dakota Forum; Moorhead, Minnesota, September, 2016

"Discovery, Subpoenas, and Protective Orders," Trust and Estates Lunch & Learn Series, Seminar, August, 2016

"Key Advisor Panel," Prairie Family Business Association Annual Conference - Sioux Falls, South Dakota, April, 2016

"Record-Keeping and Providing Information to Beneficiaries," Trusts and Estates Lunch & Learn Series, Seminar, March, 2016

Estate and Business Succession Planning Seminar, Prairie Family Business Association Regional Conference - Moorhead, Minnesota, November 5, 2014

Estate and Business Succession Planning Seminar, Prairie Family Business Association Regional Conference - Sioux Falls, South Dakota, March, 2014

Business and Estate Planning Seminar, South Dakota Cattlemen's Association, November, 2012

Dynasty Trust Seminar, Sioux Empire Estate Planning Council, April, 2012

Business and Estate Planning Seminar, South Dakota Funeral Directors Association, January, 2012

"Business Contracts: A Through Z," National Business Institute, January, 2012

Advanced Directives Seminar, Compassionate Care Hospice, National Healthcare Decision Day, Numerous Estate and Business Succession Planning Seminars, Various Organizations and Individuals (Annually since 1999), April, 2011

Numerous estate and business succession planning seminars to various organizations and individuals, 1999-present

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)

South Dakota

U.S. District Court

U.S. Court of Appeals for the Eighth Circuit