This is a disciplinary proceeding against Hermon B. Walker (respondent), a member of the South Dakota Bar now practicing at Rapid City, South Dakota. Respondent was admitted to practice as an attorney and counselor-at-law in the courts of the State of South Dakota on August 10, 1961. Since that time he has been engaged in the active practice of law with offices at Sturgis in Meade County, South Dakota until about July 1, 1975, and thereafter at Rapid City in Pennington County, South Dakota.
Certain complaints regarding the respondent's conduct in the practice had been reported to the Grievance Committee of the State Bar Association which undertook to investigate the complaints. A report from that committee to this court resulted in an order authorizing the filing of the formal complaint, which order was dated the 24th day of November, 1975. By formal complaint filed on the 4th day of December, 1975, respondent was charged with unprofessional conduct, malpractice, and conduct prejudicial to the administration of justice in his office as an attorney and counselor-at-law. He was first alleged to have entered a plea of nolo contendere to a charge of willful failure to file income tax returns for the years 1970 and 1971, upon which plea he had been found guilty and imposition of sentence was suspended on terms of probation. He was next alleged to have pled guilty to a charge of driving a motor vehicle while under the influence of intoxicating liquor on the streets of Sturgis, Meade County, South Dakota. The complaint further detailed six instances over a period of some fourteen years wherein the clients had complained of the respondent's handling of causes and legal transactions on their behalf. We do not detail these claims here, suffice it to say that, if true, they would demonstrate a pattern of unconcern, neglect, procrastination and untruths which singly and collectively constitute unprofessional conduct and conduct prejudicial to the administration of justice as was charged in the complaint.
To this formal charge the respondent filed an answer which denied that the allegations of misconduct as detailed in the complaint constituted grounds for disciplinary action. He further affirmatively asserted that any such conduct predated the 2nd day of August, 1974, on which date he alleged that he had been diagnosed as afflicted with the disease of acute chronic alcoholism and began a course of treatment for the arrest of the said disease. The Honorable George W. Wuest, Senior Circuit Judge for the Fourth Circuit, was duly appointed as referee to take and hear the testimony in this matter and to make and file with this court findings of fact and recommendations thereon. Hearing on the complaint was held in the Pennington County Courthouse on January 20 and 21, 1977, and the referee's report filed on February 3, 1977. The matter was brought on for argument before this court on March 18, 1977.
The referee's report reviewed in detail the charges of the formal complaint. He found that the respondent had in fact entered the pleas as charged in the matter of the income tax returns and the DWI offense. With respect to the some six various complaints about handling clients' matters he found that in two cases there was insufficient evidence to demonstrate any fault on the part of the respondent. With respect to three other instances, while respondent
In a disciplinary proceeding against an attorney the findings of fact of the referee if not conclusive are nevertheless entitled to the careful consideration of this Court which is mindful of the fact that the referee saw and heard the witnesses with all the advantage that is gained from such personal contact. This Court has consistently refused to disturb the findings of the referee where they are supported by the evidence. In re Schmidt, 1944, 70 S.D. 161, 16 N.W.2d 41. We find nothing in the record that would dispute the findings of the referee. Indeed at the hearing upon the findings counsel for the respondent did not in any manner take issue with them. The sole question remaining before us is the disposition to be made.
The Code of Professional Responsibility (appendix to Chapter 16-18 SDCL) as adopted by the South Dakota Bar Association on June 20, 1970 and approved by this Court on July 21, 1970, provides the standards by which to judge the transgressor. Under Canon I, Disciplinary Rule 1-102, "Misconduct", states that:
A willful violation by an attorney of any of these rules constitutes sufficient cause for
We acknowledge again that the purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose misconduct has proved them unfit to be entrusted with duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing, In re Rude, 1974, S.D., 221 N.W.2d 43; In re Weisensee, supra. Disbarment is warranted when it is clear that the protection of society requires such action or where the maintenance of respect for courts and judges or the respectability of the legal profession itself demands such action, In re Kunkle, 1974, S.D., 218 N.W.2d 521.
As previously stated, the referee's report recommended that in the light of the respondent's efforts over some two and one-half years and the fact that he had abstained from alcoholic beverages during that entire period, the respondent should be given the opportunity to continue the practice of law. This disposition was strongly urged upon us at the hearing on the referee's report by the counsel for the respondent and perhaps as strongly contested by counsel for the Grievance Committee. We view this disposition of the matter with hesitancy and considerable trepidation.
We are not unmindful of the legislative policy expressed in Chapter 240, Laws of 1974, which reads as follows:
This court cannot, however, under the guise of support of this policy condone misconduct on the part of an attorney on the grounds that he is an alcoholic anymore than it can condone misappropriation of clients' funds on the grounds of financial problems. To hold otherwise would wreak havoc with the process of disciplinary proceedings for not infrequently misconduct by attorneys appears to be attributable at least in part to the factor of alcoholism.
"We must keep in mind that the real and vital issue to be determined in disbarment proceedings is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law." In re Weisensee, supra, citing In re Van Ruschen, 1917, 38 S.D. 254, 160 N.W. 1006.
Alcoholism is now widely recognized as being a disease and as such is susceptible of treatment. In the instant case the respondent has made an obviously bona fide commitment to accept the necessary treatment of the disease to such an extent that he has a history of two and one-half years of abstention. Successful treatment of the disease involves continued abstention and any discussion of the question of successful treatment evolves into an estimate based on percentages. As one of the witnesses for the respondent, a doctor with the Johnson Institute in Minneapolis, Minnesota testified, annual studies of their former patients consistently indicated that 52% of the patients never drink again, but the other 48% relapse and experiment with alcohol, that about half of those dropouts return and complete the outpatient program successfully and remain abstinent, giving their program about a 75% success factor. The testimony of the superintendent at River Park was to the effect that approximately
In the case of In re Rude, supra, the referee also found that the respondent had a problem with alcohol; however, this case is clearly distinguishable from Rude where, although a drinking problem was mentioned, no evidence of action towards treating the problem was offered.
The referee's report recommended a period of probation. The provisions of Chapter 16-19 SDCL regarding discipline of attorneys, while granting this court exclusive power to disbar or suspend attorneys, makes no mention of probation nor has this court adopted any rule providing for such a sanction. However, this court has long recognized that:
As Justice Whiting so eloquently wrote in Danforth v. Egan, 1909, 23 S.D. 43, 47, 119 N.W. 1021, 1022:
Counsel for respondent has strongly urged upon us the case of In re Complaint as to the Conduct of James H. Lewelling, Accused, 1966, 244 Or. 282, 417 P.2d 1019, a disciplinary proceedings before the Supreme Court of the State of Oregon which appears to be almost on fours with the instant case, and in which case the Oregon
Upon all of the record before us and it appearing that the respondent two and one-half years ago ceased to use intoxicating liquor and has since totally abstained and has pledged to totally abstain in the future, and it further appearing that the misconduct found against respondent was proximately caused by his alcoholism and occurred primarily prior to the beginning of his total abstention, we deem it proper that he be given an opportunity to continue the practice of law conditional upon his continued abstinence from alcohol as recommended by the referee. We therefore enter judgment as follows: That respondent be subjected to the sanction of a two-year suspension from the practice of law in the State of South Dakota and thereafter until he shall make application for reinstatement to practice and make a showing before this court of his fitness to practice; provided, however, that the foregoing sanction shall be imposed only if the respondent fails to fulfill the following conditions:
In addition to the foregoing, judgment is hereby rendered against the respondent for all necessary costs of the reference as shall be taxable by the clerk as provided by SDCL 16-19-18.
We are not unmindful that this is a case of first impression in the area of attorney discipline in this state and we sincerely hope that it will serve as an incentive to this respondent to continue his efforts at rehabilitation and as an adequate measure to protect the public against a recurrence of the harm which was caused by his delinquencies. It goes without saying that any violation of the conditions of the suspension of the imposition of the sanction which shall come to the attention of this Court in any manner, will result in immediate action to revoke the suspension, of the sanction and to execute the judgment of suspension. Moreover, it should be made clear to all that our disposition in this case does not signal the advent of a new defense in disciplinary proceedings. We do not hold that alcoholism as a causation factor in misconduct will shield the perpetrator from the consequences of his actions. The respondent did not receive the consideration that we have given him because he is an admitted alcoholic but rather because he is, in our view, a bona fide recovered or arrested alcoholic who has for the past two and one-half years demonstrated his fitness to continue in the practice of law.
DUNN, C. J., and WOLLMAN, ZASTROW, PORTER and MORGAN, JJ., concur.