[¶ 1.] This is a disciplinary proceeding against Respondent Charles L. Dorothy (Dorothy), a member of the State Bar of South Dakota.
FACTS AND PROCEDURE
[¶ 2.] Dorothy graduated from the University of South Dakota School of Law in 1974 and was admitted to the practice of law in this state on May 16, 1974. Dorothy is also admitted to practice in the Federal District Court of South Dakota and the U.S. Eighth Circuit Court of Appeals. He has practiced pro hac vice in the Federal District Court of Iowa, and the state courts of Iowa and North Dakota. During his legal career Dorothy has practiced as an employee, sole practitioner, partner and shareholder in a professional corporation. He has also served as an assistant attorney general for the State of South Dakota and as a deputy state's attorney. Dorothy has practiced law in Rapid City and Pierre, South Dakota, and currently practices in Sioux Falls, South Dakota.
[¶ 3.] Dorothy was contacted by Thayer Hoover on September 3, 1993, for information on child support guidelines regarding his wife Cindy's four children by a previous marriage to Mike Grages. Dorothy asked for and received a $500 retainer from Hoover to be drawn against at the rate of $100 per hour for services performed. No written fee agreement was ever prepared. Dorothy represented that any amount of the retainer not used would be refunded.
[¶ 4.] Although there was an order in the divorce file granting custody of the four Grages children to Mrs. Hoover, there had been a considerable history of the Grages children living with Grages or the parents of Cindy Hoover. Twenty-three depositions were taken during the course of the Grages-Hoover change of custody, support and grandparent visitation proceedings.
[¶ 5.] In December 1993, Dorothy represented to Cindy the case could cost as much as $10,000. However, as of August 1994, Hoovers had paid $47,300 to Dorothy in legal fees and costs. To partially pay Dorothy's fees, the Hoovers had to borrow $10,000 from a bank and took an $8,000 cash advance on their Visa card. In September of 1994, Hoovers paid Dorothy another $1,500 before a scheduled hearing. In October 1994, Hoovers still owed Dorothy $10,000 to $11,000. Ultimately Dorothy claimed he was entitled to $45,100.35 in attorney's fees and $17,550.37 for costs, for a total of $62,650.72.
[¶ 6.] Circuit Judge Glen Severson heard six days of testimony. Settlement was finally reached in August 1994, by mutual agreement of the parties who agreed to split custody of the children. The amount of child support was also settled by stipulation
[¶ 7.] Dorothy brought suit against Hoovers for the over $14,000 of claimed unpaid legal services and costs in connection with the custody proceedings. Judge Tim D. Tucker, granted judgment in favor of the Hoovers. Dorothy did not appeal this ruling. Subsequently, the Hoovers filed an ethical complaint against Dorothy with the State Bar of South Dakota. The Disciplinary Board found Dorothy violated South Dakota Rules of Professional Conduct 1.1, 1.2(e), 1.3, 1.4, 1.5, 1.16, 2.1 and 8.4.
[¶ 8.] In 1992, Richard C. Flugge (Flugge), a certified public accountant in Sioux Falls retained Dorothy to represent him in a legal dispute he had with Steven Wagner, a CPA whose employment Flugge terminated. Dorothy brought a lawsuit on behalf of Flugge in April of 1992 for the recovery of client files taken from Flugge by Wagner in violation of their employment contract. Wagner employed attorney Gale Fischer to defend him in the Flugge matter. On May 24, 1994, Fischer made an offer of judgment as to Flugge's breach of contract claim admitting Wagner had performed business for Flugge's clients, and advising Dorothy he could obtain a judgment based on the offer of judgment. On June 27, 1994, Judge William Srstka entered partial judgment for Flugge in the amount of $703.75 based on the offer of judgment.
[¶ 9.] On August 17, 1994, Fischer wrote a letter to Dorothy, stating Flugge was entitled to recover $455.72 after deduction of costs which had been awarded to Wagner concerning another portion of the litigation. On August 25, 1994, Dorothy received a letter dated August 24, 1994 from Fischer enclosing a trust account check for $455.72 and a satisfaction of judgment to be signed by Dorothy on behalf of Flugge. On January 22, 1997, Flugge called Dorothy regarding the judgment against Wagner for which he had never been paid. Upon Flugge's request, an associate of Dorothy's commenced execution and garnishment proceedings against Wagner to recover the $455.72. Wagner was subsequently levied upon and the constable delivered a check to Dorothy payable to Flugge and Dorothy. On March 13, 1997, Flugge was informed a check had already been tendered by Wagner. On March 14, 1997, Wagner's attorney filed a motion for modification of judgment asserting he had mailed a trust account check for $455.72 to Dorothy on August 24, 1994. On March 17, 1997, Dorothy advised Flugge he had never received a check from Fischer for $455.72, and discussed possible ethics violations by Fischer and possible Rule 11 sanctions for misconduct. Dorothy prepared an affidavit which denied his receipt of Wagner's trust account check. Flugge also prepared an affidavit denying the receipt of the trust account check.
[¶ 10.] Prior to the hearing on Fischer's motion for modification of judgment, Dorothy discovered the trust account check from Fischer in the amount of $455.72 dated August 24, 1994 in his "appellate file." Dorothy provided Flugge with copies of the trust account check but failed to explain it was in satisfaction of the judgment. As a result, Flugge believed the copies were of Fischer's pleadings, and thus on April 4, 1997 he signed the affidavits and pleadings requesting Rule 11 sanctions against Fischer. Flugge believed the Rule 11 motion was to recover attorney's fees because he thought Fischer's affidavit was false.
[¶ 11.] On April 16, 1997 a hearing on the motions was held. Wagner's attorney represented to the court that either Flugge or Dorothy had received the trust account check. At this time Dorothy revealed to the court he had in fact received the check. The trial court ordered Flugge to return or destroy the trust account check and return the funds obtained by the execution on Wagner's bank account. On April 17, 1997, Flugge sent Dorothy a detailed letter expressing his concerns regarding
[¶ 12.] On April 21, 1997, pursuant to the trial court's order, Fischer sent to Dorothy a cashier's check for $455.72 payable to Flugge and Dorothy. Dorothy wrote to Flugge informing him, "I will not immediately endorse Constable Harris' check over to Fischer and Wagner or send or deliver the check to them immediately, but I will endorse it and give it to you to do with it as you deem appropriate." Dorothy then sent the check along with a letter to Flugge on April 28, 1997, stating, "I will endorse it [constable's check] and the cashier's check [$455.72] I sent you last week when our billing dispute is resolved." Dorothy claims he had a possessory attorney's lien on the two checks, although he never attempted to perfect the "attorney's lien" in the required manner. On May 5, 1997, Flugge sent Fischer his personal check for the costs assessed in accordance with the trial court's April 16, 1997 order. Flugge was ultimately able to secure a reissued constable's check payable only to himself.
[¶ 13.] In his April 18, 1997 letter to Flugge, Dorothy advised, "I am terminating any professional relationship we have." Because Dorothy was concerned Wagner or Flugge might pursue a claim against him for malpractice, he sought the mutual release of all attorneys involved in this matter. Dorothy did not advise Flugge in writing that he should obtain independent legal representation concerning this release. Dorothy filed a motion to withdraw as Flugge's counsel on May 20, 1997. It was granted by the trial court. Flugge subsequently filed an ethical complaint against Dorothy with the State Bar.
[¶ 14.] The Board found Dorothy violated Rules 1.1, 1.2(a), 1.5, 1.8(h), 2.1 and 8.4 in regards to this matter. The Board recommended Dorothy be publicly censured.
[¶ 15.] On May 8, 1998, Circuit Judge Jack Von Wald was appointed referee by this Court to take evidence and make findings concerning this case. The referee agreed with the Board that Dorothy had violated the above cited Rules of Professional Conduct; however, the referee did not agree that Dorothy should be publicly censured for his conduct. The referee noted that (1) Dorothy had no previous complaints made against him to the Board which were found to have been meritorious; and (2) Dorothy no longer does legal work involving domestic relations. The referee recommended a private reprimand would be appropriate discipline for Dorothy.
STANDARD OF REVIEW
[¶ 16.] The Board and the referee conducted hearings and made findings, conclusions, and recommendations that Dorothy should be disciplined. We give careful consideration to their findings as they had the advantage of seeing and hearing the witnesses. Matter of Claggett, 1996 SD 21, ¶ 9, 544 N.W.2d 878, 880 (citing In re Discipline of Jeffries, 500 N.W.2d 220, 225 (S.D.1993)). However, this Court gives no particular deference to a referee's recommended sanction. Id. (citing In re Discipline of Dana, 415 N.W.2d 818, 822 (S.D.1987)). "Although we may adopt the findings of a referee, it does not necessarily follow that we will also adopt the recommendations." Id. (citing Dana, 415 N.W.2d at 822) (citing In re Discipline of Rensch, 333 N.W.2d 713, 714 (S.D.1983)). "The ultimate decision for discipline of members of the State Bar rests with this Court." Id. (quoting Jeffries, 500 N.W.2d at 225) (quoting In re Discipline of Stanton, 446 N.W.2d 33, 42 (S.D.1989)).
[¶ 17.] 1. Unreasonable Fees-The Hoover Complaint.
[¶ 18.] This Court is not in the practice of setting attorney's fees. It is for this reason that in writing this opinion, this Court is not attempting to draw a bright line on what constitutes an unreasonable attorney's fee. We are neither establishing a fee schedule. Indeed, the issue of whether an attorney has charged an unreasonable fee is a difficult one, because "[f]ew, if any, areas of attorney discipline are as subject to differing interpretations as the matter of what constitutes an excessive attorney's fee." In re Kutner, 78 Ill.2d 157, 35 Ill.Dec. 674, 399 N.E.2d 963, 966 (1979) (quoting The Florida Bar v. Moriber, 314 So.2d 145, 148 (Fla.1975)). However, this Court is in the practice of protecting the public from lawyer misconduct, thus, this issue warrants serious discussion.
[¶ 19.] This case presents us with a matter of first impression in South Dakota: should a lawyer in this case who attempted to charge a client nearly $60,000 (and did charge her in excess of $47,000) for representation in fees and costs concerning child custody and support issues be disciplined for charging unreasonable fees? We must thoroughly examine the merits of this case, as well as the overall propriety of what our decision would mean to the South Dakota Bar and the public at large. We are mindful of the "purpose of the disciplinary process—to protect the public [from further attorney misconduct], not to punish the lawyer." Petition of Pier, 1997 SD 23, ¶ 8, 561 N.W.2d 297, 299 (citing Matter of Simpson, 467 N.W.2d 921, 921-22 (S.D. 1991); Stanton, 446 N.W.2d at 42; Matter of Strange, 366 N.W.2d 495, 497 (S.D. 1985)). Moreover, a further purpose is the deterrence of like conduct by other attorneys. Matter of Tidball, 503 N.W.2d 850, 856 (S.D.1993); Matter of Swartz, 141 Ariz. 266, 686 P.2d 1236, 1247 (1984) (citing Matter of Mercer, 126 Ariz. 274, 614 P.2d 816 (1980)).
[¶ 20.] Members of the South Dakota Bar are governed by the South Dakota Rules of Professional Conduct. SDCL ch. 16-18 App. The Board contends Dorothy specifically violated Rule 1.5
[¶ 21.] Many courts including South Dakota now adhere to the American Bar Association's Model Rules of Professional Conduct.
ABA Comm. on Ethics and Professional Responsibility, Informal Op 84-1509 (1984).
[¶ 22.] Arizona courts, like South Dakota, promulgated their ethical rules after the ABA Model Rules of Professional Conduct. In Matter of Struthers, 179 Ariz. 216, 877 P.2d 789 (1994), the court found that the attorney's fee charged was unreasonable in relation to the work performed and in violation of Ethical Rule 1.5(a).
Id. at 796 (citing Swartz, 686 P.2d at 1243) (internal citations omitted).
[¶ 23.] In California "[i]t is settled that gross overcharge of a fee by an attorney may warrant discipline." Bushman, 113 Cal.Rptr. 904, 522 P.2d at 314. California courts utilize this test: "[t]he test is whether the fee is `so exorbitant and wholly is disproportionate to the services performed as to shock the conscience.'" Id. (citing Herrscher v. State Bar (1935), 4 Cal.2d 399, 401-02, 49 P.2d 832, 833 (quoting Goldstone v. State Bar (1931), 214 Cal. 490, 498, 6 P.2d 513)). The Supreme Court of California in Bushman suspended an attorney from the practice of law for one year for charging and attempting to collect an exorbitant and unconscionable fee from clients. Id. at 313. Bushman was retained in connection with an action for divorce and custody of a minor child where the only substantial issue was custody.
[¶ 24.] Eventually the custody issue was resolved by a stipulation of the parties in favor of Bushman's client. The Court found there was nothing unusual or novel in the pleadings or research in this case. Id. The Court held that "under all the circumstances, the fee charged by Bushman was so exorbitant and wholly disproportionate to the services rendered to the [clients] as to shock the conscience." Id. at 315. Although Bushman asserted the case was "quite involved,"
[¶ 25.] In the case at bar, both the Board and referee found Dorothy violated, among
[¶ 26.] In the matter before us, the referee's findings of fact and conclusions of law indicate Dorothy also violated Model Rule 1.5(b). This rule imposes an affirmative duty on attorneys to provide information about billing practices to their clients.
[¶ 27.] This Court has held when a fee is challenged as excessive, the attorney claiming the fee is required to produce competent evidence to demonstrate the value of his services. In re Estate of Schuldt, 428 N.W.2d 251, 256 (S.D.1988). The attorney has the burden of proving his fee is justified and reasonable. Id. In this case, Dorothy has made detailed accounts and explanations for his fees. For instance, in an eighty-eight-page letter to Mike Schaeffer, a member of the Board, dated September 26, 1997, Dorothy wrote:
Dorothy also wrote:
Mr. Hoover sent me 10 books of materials to use at the hearings. Many were large 3-ring binders, which he wanted me to introduce without revision to Judge Severson. I refused to do that. I told him that Judge Severson would not read 10 books of documents, and that I was not comfortable introducing documents that I had not reviewed or
[¶ 28.] In this letter, Dorothy also pointed to the fact Judge Tucker refused to admit a report into evidence from a psychologist who did a psychological testing of the Hoovers and the Grages in Dorothy v. Hoover. Dorothy cites to Dr. Arbes' "summary and recommendations":
However, despite the above, Judge Tucker found that Dorothy's representation increased the duration of this case and the cost. Judge Tucker held:
Judge Tucker's decision also cited to another occasion where the Hoovers were traveling to meet with Dorothy and ran out of gas near Brandon. The Hoovers phoned Dorothy to advise him they would be late. Dorothy offered to drive out to give them some gas and then billed them $100/hour to do so.
[¶ 29.] Judge Tucker reviewed the factors set out in Rule 1.5(a), and concluded "a good deal of time was necessary in this case, but not nearly to the extent provided. The legal issues presented were not novel or complex."
[¶ 30.] Grages and the maternal grandparents were represented by counsel in this matter and met Hoover's legal maneuverings step-by-step. Yet Grages incurred a fee of $16,309.40 and the grandparents incurred a fee of $19,869.04 in comparison to Dorothy's claim for fees of $45,100.35.
[¶ 31.] Considering investigation of a claim, discovery and trial preparation, we recognize it may take more time to prepare a case by the moving party than a nonmoving party. However, here both the Board and referee found Dorothy improperly told Cindy Hoover when she wanted to halt the proceedings, she had a good case and would get all her attorney's fees back when she won. Cindy testified Dorothy told her if she stopped the litigation, it would cost her Grages' attorney's fees, past child support and future child support in addition to the full amount of Dorothy's
[¶ 32.] After an extensive review of the voluminous record in this case, we find Dorothy charged the Hoovers an unreasonable fee in violation of Rule 1.5. In so holding we do not attempt to set a bright line rule based on the amounts involved here or for that matter, any specific amount. There may well be custody cases which justify fees of this nature or more depending on the facts and the application of the factors cited herein. However, this Court has long ago taken the position that it will not sit idly by while clients are financially abused by officers of the bar:
Ofstad v. Beck, 65 S.D. 387, 274 N.W. 498, 503 (1937).
[¶ 33.] We agree with the Board and referee that Dorothy violated Rules 1.1, 1.2(e), 1.3, 1.4, 1.5, 1.16, 2.1, and 8.4 in his representation of Cindy Hoover.
[¶ 34.] 2. Dorothy's withholding of the trust account check-The Flugge Complaint
[¶ 35.] Dorothy's withholding of the $455.72 trust account check is governed by Rule 1.15(2)(d), which states "[a] lawyer shall ... [p]romptly pay or deliver to the client as requested by a client the funds, securities or other properties in the possession of the lawyer which the client is entitled to receive." SDCL ch. 16-18 App. Rule 1.15. It is also a violation of Rule 1.15(b) which provides, in pertinent part:
SDCL ch. 16-18 App. Rule 1.15. Dorothy received the trust account check on August 24, 1994 from Wagner's attorney, Fischer. This check was to be paid in satisfaction of judgment as to Flugge's breach of contract claim. Dorothy should have notified Flugge immediately upon receipt of this check. "Even if a client expects the lawyer to receive funds on the client's behalf, the lawyer has an affirmative duty to notify the client promptly and expressly when the lawyer in fact receives the funds." In re Conduct of Starr, 326 Or. 328, 952 P.2d 1017, 1022 (1998). However, Dorothy claims he misplaced the trust account check in the wrong Flugge file. The
[¶ 36.] Dorothy claims Flugge was not entitled to receive the $455.72 in dispute as it was part of his fee. Such disputes are addressed by Rule 1.15(c) which provides: "[i]f a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved." In Tidball, 503 N.W.2d at 855, this Court held an attorney's failure to promptly pay over to a client funds or assets violates disciplinary rules governing payment of funds to clients. See also Disciplinary Proceedings Against Oppitz, 157 Wis.2d 266, 459 N.W.2d 569, 572 (1990); Wilkerson v. Olcott, 212 So.2d 119, 121 (Fla.App.1968) (stating lawyer, upon demand by client, must account for and deliver over money or property which client entrusted to him). In Tidball, this Court looked to the Comments to Rule 1.15 as guidance in this type of situation:
503 N.W.2d at 855. Dorothy clearly did not follow this procedure but instead claimed a possessory attorney's lien on the funds represented by the checks.
[¶ 37.] Moreover, this Court agrees with the referee's conclusion that Dorothy never used the term "attorney's lien" in his correspondence to Flugge and never attempted to perfect any alleged attorney's lien in the manner required by law pursuant to SDCL 16-18-21 et seq. While a client has an obligation to pay his or her lawyer for legal work performed, the lawyer has no right to any particular property of the client, including proceeds of litigation, absent an agreement or statutory lien. In re Haar, 698 A.2d 412, 424 (D.C.App.1997).
[¶ 38.] We agree with the Board and referee that Dorothy violated Rules 1.1, 1.2(a), 1.5, 1.8(h), 2.1 and 8.4 in regards to the Flugge matter.
[¶ 39.] In determining an appropriate discipline, this Court reviews the totality of the attorney/client relationship to determine if any mitigating factors warrant consideration. Matter of Bihlmeyer, 515 N.W.2d 236, 239 (S.D.1994) (citing Matter of Walker, 254 N.W.2d 452 (S.D. 1977)). The referee in this case found: (1) Dorothy had no previous complaints made against him to the Board which were found to have been meritorious; and (2) Dorothy no longer does legal work involving domestic relations. While the first finding does favor Dorothy, in Tidball we specifically rejected the second as a valid argument for leniency:
503 N.W.2d at 856. But see Claggett, where the misconduct was "foolish and negligent" rather than intentional. 544 N.W.2d at 881. Dorothy's actions clearly fall within the intentional category. Based on the totality of the circumstances which will be more fully developed, a refrain from practice in the field of domestic relations will not by itself, support imposition of a private reprimand rather than consideration of stronger discipline.
[¶ 40.] Dorothy argues the negative publicity he has received as a result of these proceedings, together with the costs he has incurred in defending himself, has resulted in a de facto public censure by the press and the Board. In Matter of Discipline of Hopewell, 507 N.W.2d 911, 917 (S.D.1993), we rejected a similar argument asking us to take no action against the offending attorney.
[¶ 41.] We take into serious consideration the fact Dorothy refuses to acknowledge and admit his misconduct. See Matter of Discipline of Lacey, 283 N.W.2d 250, 253 (S.D.1979) (noting the fact attorney refused to acknowledge his wrongdoing as a disciplinary consideration). Of the seventeen ethical violations the Board and the referee found he committed, Dorothy at oral argument before this Court, declared himself unconditionally not guilty of sixteen and conceded a violation of only a minor allegation.
[¶ 42.] Instead he has proceeded to blame numerous other individuals as the cause of this situation. Dorothy blames the "win at any cost" attitude of his clients, the Hoovers, as a source of his problem with the attorney fee issue. He also claims Judge Gene Paul Kean, although not presiding at the trial over Dorothy's claim for additional fees, was in contact with the judge presiding, Judge Tucker, during the course of the proceedings and went into chambers with Judge Tucker during recesses. Dorothy has provided no proof Judge Tucker was contacted by, or influenced by Judge Kean concerning the merits of the collection proceeding. Dorothy also has criticism against his client Flugge and against Judge Srstka
[¶ 44.] However, the most vitriolic criticism was reserved for Judge Tucker who refused to grant Dorothy additional attorney's fees. Dorothy accused Judge Tucker of setting out to control the trial, close the file, and "his objectivity, fairness and thoroughness were adversely affected, and he issued a bad ruling." Dorothy also declared Judge Tucker to be "negligent in the manner in which he handled [the case]," "made inflammatory comments about my handling of the case without ever reading the exhibits," and "Judge Tucker's opinion [was] reached after the improper and irregular manner that he handled the collection matter."
[¶ 45.] Dorothy asserts Judge Tucker failed to read certain exhibits and documents from the Grages case. These materials consisted of seven three-ring binders filled with charts, graphs and other information prepared by Thayer Hoover in preparation for trial. Both at the Board and referee hearings, Dorothy accused Judge Tucker of failing to review these materials. Dorothy stated:
Dorothy also testified:
However, when the trial transcript in Dorothy v. Hoover is examined, it is clear Dorothy did not ask Judge Tucker to read the seven binders. The transcript indicates Dorothy introduced the seven books of voluminous information to show just that — that they were voluminous.
[¶ 46.] Dorothy specifically accused Judge Tucker of violating Canons of Judicial Ethics, 3.3, 3.7, 3.8 and SDCL 15-14-1, yet he neither appealed the Judge's decision nor did he file a complaint with the Judicial Qualifications Commission.
[¶ 47.] The Board found the complaints by Dorothy against the judges and the judicial system to be unsupported by the record, beyond reasoned disagreement of an interpretation of fact or law and an ethical violation.
[¶ 48.] The Nebraska Supreme Court has recently stated:
In re Converse, 258 Neb. 159, 602 N.W.2d 500, 508 (1999) (citing Appeal of Lane, 249 Neb. 499, 544 N.W.2d 367, 376 (1996)). Distinguishing between reasoned comment protected by the First Amendment and unprotected, unprofessional statements goes back nearly to the establishment of an organized bar in this State:
In re Egan, 24 S.D. 301, 326-27, 123 N.W. 478, 488 (1909). See also In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644, 648-49 (1956); Converse, 602 N.W.2d at 509.
[¶ 49.] Dorothy further represented to this Court at oral argument and subsequently in writing that Judge Severson and attorneys Rick Yarnall, Tom Farrell, and Rory King testified before the referee that Dorothy's conduct violated no ethical rules. Concerned the record did not support this blanket claim, this Court gave Dorothy the opportunity to point to specific citations in the record to justify this argument.
[¶ 50.] Contrary to Dorothy's assertion, it appears from the record Judge Severson did not wholeheartedly agree Dorothy was free of any ethical violations. At the referee hearing, when asked whether he believed Dorothy violated Rule 1.1, "Competence," Judge Severson testified: "[i]t's more complicated than a one word answer. The entire matter was disproportionate to the issues that were involved." Further, when asked if he believed Dorothy violated Rule 1.3, "Diligence," Judge Severson stated:
Yarnall testified he did not have an opinion either way when asked if Dorothy violated Rule 1.5.
[¶ 51.] Dorothy represented himself at the Board hearing, referee hearing and before this Court, and participated in the examination of these witnesses and heard their testimony. We are troubled with the fact Dorothy did not display candor with this Court. While two of the four witnesses in this disciplinary proceeding may have made statements to the effect Dorothy did not violate any ethical rules, these statements were clarified with subsequent qualification; and other witnesses did not give the wholehearted endorsement of Dorothy's conduct he would have us believe. Rule 3.3 requires candor toward this Court as well as other tribunals. "`Candor' means to treat a subject with fairness, impartiality, and to be outspoken, frank, and veracious, and is synonymous with other terms describing morality." Joiner v. Joiner, 87 S.W.2d 903, 905 (Tex. Civ.App. 1935), rev'd on the issue of property division, 131 Tex. 27, 112 S.W.2d 1049 (Tex.Com.App. 1938). This Court has stated:
Bihlmeyer, 515 N.W.2d at 239; see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994) (noting every lawyer has a duty of candor to the tribunal); United States v. Associated Convalescent Enterprises, Inc., 766 F.2d 1342, 1346 (9th Cir.1985) (stating an attorney has duty of good faith and candor in dealing with the judiciary). "Selective omission of relevant information, ... `exceeds the bounds of zealous advocacy and is wholly inappropriate.'" Gum v. Dudley, 202 W.Va. 477, 505 S.E.2d 391, 400 n.14 (1997) (quoting Montgomery v. City of Chicago, 763 F.Supp. 301, 307 (N.D.Ill.1991)). Attorneys have a responsibility to present the record with accuracy and candor. Pinkham v. Sara Lee Corp., 983 F.2d 824, 833 (8th Cir.1992). The record in no way supports Dorothy's contention all these witnesses absolutely absolved him of any wrongdoing.
[¶ 52.] Appropriate discipline is determined upon a consideration of the seriousness of the misconduct by the attorney and the likelihood of repeated instances of similar misconduct. Claggett, 1996 SD 21, ¶ 14, 544 N.W.2d at 880; Tidball, 503 N.W.2d at 856. We are mindful that for twenty years Dorothy conducted himself and his legal practice at such a professional level that not one valid ethical complaint was lodged against him. Nevertheless the record supports the findings
[¶ 53.] The disciplinary options at this Court's disposal are defined in SDCL 16-19-35 as: private reprimand, public censure, placement on probationary status, suspension for up to three years and disbarment. Hopewell, 507 N.W.2d at 918. We find the recommendation of private reprimand by the referee to be too lenient in this case.
[¶ 54.] MILLER, Chief Justice, concurs.
[¶ 55.] SABERS and AMUNDSON, Justices, concur with a writing.
[¶ 56.] KONENKAMP, Justice, deeming himself disqualified, did not participate.
SABERS, Justice (concurring).
[¶ 57.] I concur because Dorothy's conduct, his lack of remorse and his insistence that he did nothing wrong clearly justifies public censure under our cases. In fact, his conduct brought him dangerously close to suspension.
[¶ 58.] Dorothy's conduct demonstrates an ability to place a spin on the "facts" which may be brilliant legal gymnastics. However, the same conduct also shows a lack of professional judgment for such a seasoned lawyer. At times, it shows he was not smart enough to know when to quit. Obviously, he should have quit long before he started his criticism of the circuit court Judges.
AMUNDSON, Justice (concurring).
[¶ 59.] Dorothy has represented himself all through these proceedings. Along the way, this case has generated a blizzard of paper. In Dorothy's final response he argues that the referee's decision-making process was flawed. This was, he claims, caused by "two well-established, unconscious, psychological mechanisms of decision making, known as `selective perception' and `cognitive dissonance.'"
[¶ 61.] Dorothy concluded by requesting that this Court "view the facts and documents objectively, without selective perception and without ignoring or giving little weight to facts which cause cognitive dissonance[.]" Counsel can rest assured that this matter has been impartially reviewed with no preconceived thoughts as to what the outcome should be, notwithstanding being the recipient of a guaranteed salary and not having been in the private practice for a number of years. Although Dorothy might not agree with the final decision on discipline, so be it, and he is actually free to chastise the decision, since this Court places no muzzle on a person's right to express their opinions.
[¶ 62.] This Court has considered numerous attorney discipline cases which have resulted in public censure. In Discipline of Lacey, 283 N.W.2d 250, 250-51 (S.D. 1979), attorney Lacey, a well-respected attorney of over fifty years, made remarks about state courts being incompetent and crooked. During his professional career, Lacey was elected to ten terms in the South Dakota House of Representative. Id. at 253. However, Lacey was later diagnosed with muscular dystrophy and, at oral arguments, Lacey's condition deteriorated to the extent that he was confined to a wheelchair. Id. We found that Lacey was attempting to zealously represent his client, but due to his deteriorating condition from an incurable disease, Lacey was unable to objectively view the proceeding against him. Id. Lacey, however, steadfastly refused to acknowledge his wrongdoing. Id. Based upon Lacey's "disavowal of any intention to make similar statements, his long years of active, honorable practice, his service in public office, his deteriorating condition, and his limited ability to engage in the active, day-to-day practice of law," public censure was appropriate. Id.
[¶ 63.] In Discipline of Theodosen, 303 N.W.2d 104, 105 (S.D.1980), attorney Theodosen exercised undue influence in a will preparation. Theodosen's conduct in requesting appointment as executor of the will which he infected with his undue influence, willingness to serve as attorney, and his subsequent withdrawal of his appointment request only upon the will being challenged, all gave rise to an appearance of impropriety. Id. at 107. This Court imposed public censure as the proper discipline of Theodosen.
[¶ 64.] Three years later, in Discipline of Rensch, 333 N.W.2d 713, 714 (S.D.1983), attorney Rensch intentionally deceived the court by misrepresenting to a judge about
[¶ 65.] In Discipline of Kirby, 336 N.W.2d 378, 379 (S.D.1983), Kirby had neglected to represent the heirs of an estate for 3 years and also failed to promptly respond to letters from the disciplinary board. Kirby admitted his mistakes and identified a multitude of personal problems that led to these mistakes. Id. at 380. Based upon all of the circumstances in the case and the fact that there was no showing of financial loss due to the delays, public censure was imposed. Id.
[¶ 66.] In Discipline of Schmidt, 491 N.W.2d 754, 754 (S.D.1992), Schmidt had filed an affidavit to secure his brother the right to participate in a trial in South Dakota, but had falsely stated on the affidavit that his brother had NOT had disciplinary actions filed against him. We found that Schmidt's omission constituted a misrepresentation to the court and was "essentially a false statement of material fact." Id. at 755. This Court ultimately found that the proper discipline of Schmidt for his intentional omission was public censure. Id. at 756.
[¶ 67.] This Court, in Discipline of Kallenberger, 493 N.W.2d 709, 710 (S.D.1992), was faced with attorney Kallenberger's guilty plea for failure to file sales tax returns. Kallenberger had repeatedly filed his returns late. Id. Public censure was imposed because Kallenberger's repeated conduct of late filings showed an indifference to his legal obligations. Id. at 712. The same year as Kallenberger, this Court heard Discipline of Taylor, 498 N.W.2d 200, 200 (S.D.1993), where an attorney, Taylor, made untrue representations to his clients about the progress of the case through the legal system. In awarding public censure, this Court noted that Taylor had confessed his wrongdoing and had cooperated with the disciplinary board. Id. In addition, other than this instance, Taylor's performance "has always been highly professional." Id. Finally, Taylor had also displayed his willingness to take whatever steps possible to ensure that this would not happen again. Id.
[¶ 68.] In Discipline of Bihlmeyer, 515 N.W.2d 236, 237 (S.D.1994), the disciplinary action arose out of Bihlmeyer's handling of contingent fees. While Bihlmeyer's conduct of overcharging was dishonest and prejudicial to the profession, public censure was awarded. Id. at 239. Bihlmeyer had admitted that he made the misrepresentations about the contingent fees, and apologized for his actions. Id. He had also made efforts to rectify his mistakes and had fully compensated his client after his misconduct. Id. In awarding public censure, we noted that although Bihlmeyer's conduct of rectifying his mistake "does not absolve [him] from discipline, it certainly constitutes conduct on his part to correct his error." Id.
[¶ 69.] In Discipline of Mines, 523 N.W.2d 424, 425 (S.D.1994), Mines told the circuit judge that he had filed a complaint in federal court which actually had not yet been filed. Upon learning it had not been filed, the attorney did not tell the judge, nor did he try any other means to correct the situation. Id. This Court noted that giving Mines the "benefit of the doubt" that his misstatement to the circuit judge was made in good faith, the fact remains, Mines continued his silence after learning of the non-filing. Id. at 427. Therefore, we found that because deceit did exist, no discipline less severe than a public censure would be considered. Id. at 426. Ultimately, this Court imposed the discipline of public censure after noting that Mines did express regret for his wrongdoing. Id. at 427.
[¶ 70.] Finally, in our most recent public censure case, Discipline of Claggett, 544 N.W.2d 878, 879 (S.D.1996), the guardianship estate's attorney (Claggett) borrowed funds from the estate and later repaid
[¶ 71.] There is no question in my mind that Dorothy is convinced that his spin on the complaints, testimony of various witnesses, and contents of the documentary evidence is one hundred percent accurate. As well, he should be. I must say that I do not view the case in the same light. In preparing written arguments for consideration on appeal, George Kennedy et al., The Writing Book 36 (1984) states "[a]sk yourself the two most important questions: `Do I understand this?' `Can I explain it to my reader?' Don't be satisfied until the answer to both is yes." After reviewing Dorothy's final response in this matter, which contained an assault on how the referee's gray matter functioned in his decision-making process, I would have to say my answer to question two above would be "no." Whether or not to impose discipline is to be decided on a case by case basis, but we can review past precedent, set forth above, in deciding whether or not to impose discipline. In my opinion, a public censure in this case is justified and amounts to a minimal imposition rather than a maximum imposition which could be imposed under the options contained in the statute.
Some of the courts that follow the Model Code have required a showing of unconscionability or fraud in order for disciplinary action to be imposed, despite the Model Code's focus on reasonableness under the totality of the circumstances. See Kutner, 35 Ill.Dec. 674, 399 N.E.2d at 965; Bushman v. State Bar, 11 Cal.3d 558, 113 Cal.Rptr. 904, 522 P.2d 312, 314 (1974); Florida Bar v. Quick, 279 So.2d 4, 7 (Fla.1973); Florida Bar v. Winn, 208 So.2d 809, 811 (Fla.1968), cert. denied, 393 U.S. 914, 89 S.Ct. 236, 21 L.Ed.2d 199 (stating "controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is extortionate or the demand is fraudulent."). In examining claims of excessive attorney fees, Louisiana courts interpret "clearly excessive" to mean "so grossly out of proportion with the fees charged for similar services by other attorneys in the locale as to constitute an unquestionable abuse of the attorney's professional responsibilities to the public." Gibson v. Burns, 505 So.2d 66, 69 (La.App.1987).
The Iowa Supreme Court recently examined an excessive attorney's fee in Iowa Supreme Court Board of Professional Ethics and Conduct v. Hoffman, 572 N.W.2d 904 (Iowa 1997). Attorney Hoffman entered into a contingent fee contract with a client to represent her in an attempt to recover damages arising out of the employment-related wrongful death of her husband. Counsel for the employer resisted the partial commutation, claiming Hoffman's fees were "unwarranted and excessive." Id. at 906. The Iowa Supreme Court held the Disciplinary Board demonstrated by a convincing preponderance of the evidence that Hoffman attempted to collect an excessive fee for his work on the workers' compensation claim in violation of DR 2-106. Id. at 909. The court found that a six-month suspension of Hoffman's license was fully justified. Id. at 910. Finally, the court noted:
Id. at 909.
It is clear the court gave Dorothy and Yarnall full opportunity to argue for the admission of the seven binders on the basis that they be read by the trial court but they chose not to do so. Dorothy cannot now argue in hindsight Judge Tucker was negligent in failing to do something Dorothy did not even request him to do, if indeed reading all this material was necessary to a resolution of this case in the first place.