GILBERTSON, Chief Justice.
[¶ 1.] This is a disciplinary proceeding against Benjamin J. Eicher, a member of the State Bar of South Dakota. The Disciplinary Board of the State Bar of South Dakota has recommended public censure. The Referee has recommended a public censure on some issues and a private reprimand on another. Eicher urges the Court to hold that he "committed no violations of the Rules of Professional conduct for which reprimand of any kind is appropriate."
[¶ 2.] Eicher is not married and has no children. He sponsors a baseball team, writes for a Los Angeles music newsletter, and is on the community advisory board of an Indian radio station. Eicher has a strong interest in theology.
[¶ 3.] Eicher is a 1985 graduate of the University of Nebraska School of Law. After passing the bar examination he was admitted to practice law in South Dakota. He practiced law in Rapid City with Franklin J. Wallahan until Wallahan's death in 1994. Eicher has been a sole practitioner since that time. He specializes in litigation and insurance defense.
[¶ 4.] Eicher has been the subject of four previous disciplinary complaints. The first, in 1992, was dismissed. The second, in 1997, was dismissed with a caution. The third, in 1998, was dismissed and expunged. Eicher received an admonition for the fourth in 2001. An admonition is a finding that a lawyer violated one or more of the Rules of Professional Conduct, but did not warrant a private reprimand. Three additional complaints are pending in this disciplinary proceeding.
[¶ 5.] On April 16, 2002 Spearfish attorney Dedrich R. Koch filed a complaint with the Disciplinary Board concerning Eicher's conduct in a civil action, Thomas v. Thomas. See Thomas v. Thomas, 2003 SD 39, 661 N.W.2d 1. In the course of the lawsuit, Koch, who represented Gail Thomas, and Eicher, who represented Shirley M. Thomas, filed various motions and pretrial briefs and memorandums for Circuit Judge Kern's consideration. Koch attached these to his complaint and told the Board:
[¶ 6.] In a document titled "Shirley Thomas' Reply to Gail Thomas' Brief in Support of Motion for Waste and Property Taxes" Eicher wrote, in part:
[¶ 7.] Following Judge Kern's oral bench decision which was adverse to Eicher's client, Eicher filed a "Memorandum of Law for Reconsideration." In it he chastised Judge Kern:
In this document Eicher also lectured the trial court about his view of Koch's legal ability:
[¶ 8.] On April 23, 2002 Eicher received notice of Koch's disciplinary complaint against him. Eicher immediately faxed a letter to Koch suggesting that he withdraw the disciplinary complaint against Eicher or face an appeal in the Thomas matter. The letter also implied that Eicher would file a disciplinary complaint against Koch. This letter stated, in part:
Koch refused to accept Eicher's proposal.
[¶ 9.] On April 23, 2002 Eicher also wrote letters to Judge Kern and court reporter Jean A. Kappedal regarding the Thomas case. His letter to Judge Kern begins, "Certain conduct by Mr. Koch has led to the necessity of an appeal in this action. It is unfortunate but it remains a reality." His letter to Ms. Kappedal begins, "Because Mr. Koch could not leave well enough alone, we are going to have an appeal from this case after the parties
[¶ 10.] On April 22, 2002 Rapid City attorney Courtney R. Clayborne filed a complaint with the Disciplinary Board concerning Eicher's conduct in a criminal court trial held February 8, 2002.
[¶ 11.] Eicher represented Shawna Martin who was accused of stealing money from her employer. Clayborne represented her employer and was the first witness called during Martin's criminal trial. Clayborne testified that he had spoken with Martin who admitted to him that she had taken money from her employer on two or three occasions. He also testified that he had watched two videotapes supplied by Martin's employer which showed Martin stealing money.
[¶ 12.] Eicher, in open court and "as an officer of the court" moved to dismiss the charges because the State no longer had the videotapes of Martin in its possession. Eicher told the trial court that he had watched the videotapes and they showed Martin "didn't take anything." He claimed that the videotapes were "Defendant's best evidence" "because of what it shows and what it doesn't show. It's our best evidence because the other testimony would be that people are in and out of that [money] bag all the time." He argued, "It's manifest that when the State loses evidence, that is significant it is grossly prejudicial to the defendant[.]" It deprived him of evidence necessary to cross examine witnesses.
[¶ 13.] Eicher did not tell the trial court that he possessed copies of the videotapes. He received them from one of the employer's attorneys seven months earlier in a civil proceeding Martin initiated. During a break in the criminal trial Clayborne confronted Eicher and told him that it was unethical and misleading to fail to tell the court that he had copies of the videotape. Following the recess, Eicher told the court of Clayborne's accusation. He admitted that he had copies of the videotapes but did not bring them. He told the court that "I haven't misled the court about anything. The official tapes that are in evidence are not here." He also told the court, "[b]ut for [Clayborne] to accuse me of unethical conduct is about how low we've got to this thing."
BOARD GENERATED COMPLAINT
[¶ 14.] On July 18, 2001 Eicher filed a complaint with the Disciplinary Board against Attorney M for his conduct in the Bernardo case. The Board dismissed the complaint with a caution. A dismissal with a caution is a determination that while there was no violation of the Rules of Professional Conduct there was an advisory to improve the respondent lawyer's office practice or relations with other lawyers or clients.
[¶ 15.] In the course of investigating Eicher's complaint against Attorney M the Board discovered a series of fourteen letters Eicher wrote to Attorney M and a member of his firm in the course of a year regarding the Bernardo case and the Bird Hat case. In each case, Eicher warned Attorney M that he would seek Rule 11 sanctions and allege barratry and a frivolous action counterclaim if Attorney M did not take the actions Eicher requested. He advised Attorney M that if he took the action Eicher suggested there would be "no need to report the problem to the bar association." If Attorney M did not take the action Eicher "will be filing a complaint with the Bar Association's disciplinary board. So be it."
EICHER GENERATED COMPLAINTS
[¶ 16.] On May 2, 2002 the Disciplinary Board hand delivered a letter to Eicher
[¶ 17.] On May 15, 2002 Eicher filed separate complaints against Koch and Clayborne. On May 15, 2002 and May 20, 2002 Eicher filed separate complaints against two members of Clayborne's law firm. The Board investigated the four complaints and then dismissed and expunged all of them.
[¶ 18.] The Secretary-Treasurer of the State Bar filed an affidavit advising that he examined all of the Disciplinary Board records since 1989. No person, lawyer or non-lawyer, has filed as many complaints against lawyers as has Eicher, who has filed seven. Three were dismissed with a caution, four were dismissed and expunged.
[¶ 19.] Following a hearing the Disciplinary Board entered findings of fact and conclusions of law. Included in its findings were:
[¶ 20.] The Disciplinary Board concluded:
[¶ 21.] The Board recommended that Eicher be publicly censured for his violations of the Rules of Professional Conduct and that he pay the costs and expenses of this disciplinary proceeding.
[¶ 22.] The Honorable Eugene Martin, a retired judge of the circuit court, was appointed by this Court to act as Referee in this matter. The Referee agreed that Eicher violated the statutes and Rules of Professional Conduct cited by the Disciplinary Board. The Referee did not believe, however, that Eicher's conduct toward Attorney M violated any rule of professional conduct. The Referee recommended that Eicher receive a private reprimand for his conduct in the Clayborne complaint and a public censure for the remaining violations of Rules of Professional Conduct. The Referee noted:
STANDARD OF REVIEW
[¶ 23.] The Disciplinary Board and the Referee conducted detailed hearings in this matter. Each made findings, conclusions, and recommendations regarding the appropriate discipline in Eicher's case. This Court gives careful consideration to their findings because they had the advantage of seeing and hearing Eicher, the only witness in each hearing.
[¶ 24.] In this case, "[w]e 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." Dorothy, 2000 SD 23 at ¶ 19, 605 N.W.2d at 498. "[W]e first reaffirm the purpose of the disciplinary process—to protect the public, not to punish the lawyer." Petition of Pier, 1997 SD 23, ¶ 8, 561 N.W.2d 297, 299. A further purpose of the disciplinary process is the deterrence of like conduct by other attorneys. Matter of Discipline of Tidball, 503 N.W.2d 850 (S.D.1993).
1. The Koch Complaint
[¶ 25.] When Eicher became a member of the State Bar of South Dakota he took an oath to "abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged[.]" SDCL 16-16-18. "Note that this is a continual and on-going obligation. Each day of an attorney's life demands that these requirements be met anew." In re Ogilvie, 2001 SD 29, ¶ 56, 623 N.W.2d 55, 67 (Gilbertson, J., dissenting). This constitutes a lawyer's duty, SDCL 16-18-14, and a lawyer's responsibility to "use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials." Preamble, South Dakota Rules of Professional Responsibility. SDCL 16-18 Appx.
[¶ 26.] "[T]he legal profession has seen an increasing number of attorneys engaging in conduct that is personally and professionally offensive. State-bar disciplinary action results because of findings that an attorney has engaged in flagrant disrespect toward a court, opposing counsel, an adverse party, or the attorney's own client[.]" Janelle A. McEachern, Annotation, Engaging in Offensive Personality as Ground for Disciplinary Action Against Attorney, 58 A.L.R.5th 429 (1998).
[¶ 27.] The Nebraska Supreme Court has observed:
[¶ 28.] This Court quoted Converse in Dorothy, 2000 SD 23 at ¶ 48, 605 N.W.2d at 507-508 and expanded its analysis:
[¶ 29.] Eicher's written comments to the trial court in the Thomas matter concerning Koch, Koch's client, and the trial court, went far beyond fair and reasoned comment protected by the First Amendment. Instead they constitute unprotected, unprofessional statements. As we said in Dorothy, 2000 SD 23 at ¶ 47, 605 N.W.2d at 507:
"Moreover, these acts were not an isolated `foolish and negligent' incident, id., they were intentional and numerous in number." Mattson, 2002 SD 112 at ¶ 55, 651 N.W.2d at 289.
[¶ 30.] When Eicher received notice of the disciplinary complaint that Koch filed against him, he promptly faxed Koch a letter. In it, Eicher proposed that he would not appeal the Thomas decision if Koch would agree to withdraw the disciplinary complaint.
[¶ 31.] By doing so, Eicher attempted to utilize Koch's client's interest in avoiding an appeal to compromise Koch's obligations to report professional misconduct. Rule 8.3(a) provides:
"Rule 8.3(a) is a mandatory rule of discipline." 2 Geoffrey C. Hazard Jr. and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 8.3:201 (2d ed. 1996). The duty to report disciplinary violations also embraces a responsibility not to frustrate the reporting by others or dissuading others from cooperating in disciplinary investigations.
[¶ 32.] Additionally, Eicher's deliberate conduct created a conflict with his own client which he did not report to the client. "The attorney is in effect a special agent limited in duty to the vigilant prosecution and defense of the rights of the client and not to bargain or contract them away." Northwest Realty Co. v. Perez, 80 S.D. 62, 65, 119 N.W.2d 114, 116 (1963). "The foundation of an attorney's relationship with clients and the legal system is trust." Tidball, 503 N.W.2d at 856 (citations omitted).
2. The Clayborne Complaint
[¶ 33.] During a criminal trial Eicher moved to dismiss the proceeding because the State failed to produce the original videotapes purporting to show his client taking money. Eicher claimed that the tapes provided exculpatory evidence and his ability to cross examine witnesses was impaired by the loss of the tapes. Eicher did not tell the court that he had a copy of the videotapes until Clayborne confronted him with this fact.
[¶ 34.] While Eicher did not directly lie to the trial court, he intentionally misled the court concerning the availability of what he claimed was essential evidence. "Clearly, the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth." In re Discipline of Wilka, 2001 SD 148, ¶ 15, 638 N.W.2d 245, 249.
[¶ 35.] Eicher's professional obligation to represent his client does not exonerate him in this situation. "[T]here is a line that even the zealous advocate cannot cross." Wilka, 2001 SD 148 at ¶ 16, 638 N.W.2d at 249.
Matter of Discipline of Mines, 523 N.W.2d 424, 427 (S.D.1994). See also SDCL 16-18-19:
Eicher intentionally misled the court and "crosse[d] the line into improper and unprofessional conduct." Wilka, 2001 SD 148 at ¶ 16, 638 N.W.2d at 249.
3. Board Generated Complaint
[¶ 36.] While investigating Eicher's meritorious complaint against Attorney M, the Board discovered a series of letters Eicher wrote. Throughout the correspondence, Eicher maintains that he will seek Rule 11 sanctions, allege barratry, and file disciplinary actions if Attorney M does not take the action Eicher seeks.
[¶ 37.] The Disciplinary Board and the Referee disagreed about Eicher's course of conduct in this matter. The Disciplinary Board found that Eicher's acts served no legitimate purpose, particularly when repeated several times in unrelated actions. The Board believed the letters demonstrated a pattern aimed to intimidate and threaten Attorney M so as to interfere with his professional obligation to his clients. The Referee found:
The Referee concluded that Eicher's conduct did not violate any Rules of Professional Conduct.
[¶ 38.] We note that the current Federal version of Rule 11 requires a letter from counsel to opposing counsel before a motion for Rule 11 sanctions may be brought before the court.
[¶ 39.] Threats by counsel to file disciplinary charges against an opponent may, depending on the circumstances violate one or more of Rules 8.4(b), 3.1, 4.1, 4.4 and 8.4(b). ABA Com. on Ethics and Professional Responsibility, Use of Threatened Disciplinary Complaint Again Opposing Counsel, Formal Op. 94-383. This opinion explains, in part,
[¶ 40.] Eicher repeatedly told Attorney M that he would file disciplinary actions in the Bird Hat and Bernardo cases. He also repeatedly maintained that he would seek Rule 11 sanctions and allege barratry.
[¶ 41.] SDCL 15-6-11(a):
Appropriate sanctions are provided for a violation of this rule. SDCL 15-6-11(b). However, Rule 11 motions must never be used as a mere tactic to bolster a response —whether meritorious or not—to a motion or pleading. Caribbean Wholesales and Service Corp. v. U.S. JVC Corporation, 101 F.Supp.2d 236 (S.D.N.Y.2000). The same is true of threatened Rule 11 sanctions and barratry claims, especially in the Bird Hat matter which was merely at a claim stage. See SDCL 16-18-16: "[i]t is the duty of an attorney and counselor at law not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest."
[¶ 42.] Eicher's conduct, at a minimum, violated Rule 3.4, dealing with fairness to opposing counsel, Rule 8.3, dealing with the reporting of professional misconduct, and Rule 8.4, dealing with professional misconduct and engaging in conduct prejudicial to the administration of justice.
4. Eicher Generated Complaint
[¶ 43.] While the three complaints against Eicher were pending, Eicher, within a five day period, filed four disciplinary complaints. Two were filed against Koch and Clayborne, the attorneys who had filed complaints against Eicher. Two were filed against Clayborne's law partners All were investigated, found meritless, and expunged.
[¶ 44.] Rule 8.3(a), which mandates the reporting of a fellow lawyer's misconduct,
2 Geoffrey C. Hazard Jr., et al, The Law of Lawyering at § 8.3:102. Eicher's complaints against Clayborne and Koch did not rise to that level. The Disciplinary Board and the Referee correctly found that these were retaliatory in nature.
[¶ 45.] SDCL 16-19-30 provides:
[¶ 46.] The Referee and the Disciplinary Board concluded that Eicher's filing of retaliatory and meritless complaints violated Rules 3.1, 3.3, 3.4, 4.1, 4.4 and 8.4. Our review of the complaints against Clayborne and Koch establishes no error.
[¶ 47.] The appropriate discipline in a particular case is determined by considering the seriousness of the misconduct and the likelihood that it or similar misconduct will be repeated. In re Discipline of Light, 2000 SD 100, 615 N.W.2d 164. We also consider the prior record of the attorney. Matter of Bihlmeyer, 515 N.W.2d 236 (S.D.1994). Eicher's conduct in this case leads us to conclude that the Disciplinary Board's recommendation of public censure and the Referee's recommendation of public censure and private reprimand are too lenient.
[¶ 48.] Eicher is a familiar participant in the disciplinary process. His acts of disparaging others, threatening sanctions and disciplinary complaints against opposing counsel, attempting to bargain away a disciplinary complaint against himself by offering to give up his client's civil appeal rights, and filing retaliatory disciplinary complaints are prejudicial to the administration of justice and violative of the Rules of Professional Conduct. Nearly a century ago, this Court had cause to condemn as unprofessional conduct, those attorneys who abused the judicial process for improper means.
In re Swihart, 42 S.D. 628, 635, 177 N.W. 364, 366 (1920) (six months suspension ordered).
[¶ 49.] Eicher attempts to avoid responsibility for his acts by pointing to the judges who presided over the legal proceedings that produced these complaints. He argues that since none of the complaints were generated by the judge presiding at those proceedings but rather by disgruntled opposing attorneys, he is absolved of any finding of wrong doing. However, Canon 3(D)(2) of the South Dakota Code of Judicial Conduct provides, in part:
SDCL 16-2, Appx. This Canon clearly provides that a trial judge may take "appropriate action" in its court without reporting it to the Disciplinary Board. It is only when a violation raises a "substantial question" as to the "lawyer's honesty, trustworthiness or fitness as a lawyer" that a mandatory obligation to report to the Disciplinary Board is invoked. Thus, these trial judges may have considered the issue and taken what they deemed to be "appropriate action." Simple communication with the lawyer satisfies the judge's ethical duty. Our record does not inform us on that issue. Moreover, each of those judges only had one incident before them. We have the benefit of an extensive record with multiple complaints all showing similar inappropriate conduct.
[¶ 50.] In addition, judges do have authority to deal with misconduct committed before them by contempt, Rule 11 sanctions and other inherent authority. Article V § 12 of the South Dakota Constitution vests this Court with disciplinary authority of members of the bar concerning their right to practice law in this state. While Rule 11 sanctions may also flow from the attorney's ethical violations, it is a separate legal consequence of the misconduct. A trial court has no more authority to disbar, suspend or publicly censure an attorney for an infraction committed before it in a legal proceeding than it does to absolve that attorney of a charge of an ethical violation in the same proceeding.
[¶ 51.] Eicher further defends his actions by arguing that his conduct is no worse than that of some other attorneys in his area of practice. "Arguments that [Eicher] is no worse than the supposed bottom of the barrel that have been admitted [to the bar], all fail to pass muster." Ogilvie, 2001 SD 29 at ¶ 70, 623 N.W.2d at 70 (Gilbertson, J. dissenting).
[¶ 52.] Eicher refuses to acknowledge the impropriety of his actions. This, coupled with his penchant for blaming others and the repeated unprofessional attacks that have continued throughout this appeal underscore the need for discipline. Here, Eicher attempts to absolve himself by blaming the conduct of opposing counsel and parties for his situation.
Mattson, 2002 SD 112 at ¶ 53, 651 N.W.2d at 289 (citations omitted).
[¶ 53.] Eicher further attempts to justify his conduct by wrapping himself in the protection of the First Amendment. This record is replete with his misdeeds, not free speech. Under such circumstances, rather than attempting to assure this Court his misdeeds will not be repeated, his objections to the Referee's report as well as his presentation to this Court at oral argument and his post oral argument submission lead us to conclude his unwarranted view of the cause of his present situation will result in his continuing to practice law in the same inappropriate manner. See Dorothy, 2000 SD 23 at ¶ 41-2, 605 N.W.2d at 505. The manner of the practice of law Eicher has engaged in and continues to pursue has never been allowed in this State and will not be allowed in the future.
[¶ 54.] The disciplinary options at this Court's disposal include private remand, public censure, placement on probationary status, suspension for up to three years and disbarment. Mattson, 2002 SD 112 at ¶ 51, 651 N.W.2d at 288; SDCL 16-19-35. SDCL 16-19-31 states in part: "[t]he license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the court." Upon such a record as this, we cannot conclude Eicher is meeting or will meet this standard. Eicher's egregious conduct involved in this case combined with his disciplinary history, lack of respect for the legal system, and complete lack of remorse is of such serious professional nature that it warrants a one hundred (100) day suspension from the practice of law. SDCL 16-19-35(2). We feel that this adequately protects the public while allowing Eicher sufficient time to educate himself on the proper conduct of an attorney and moreover, justify to this Court that the public would be benefited by his re-admission to being a full-time practitioner. See SDCL 16-19-83.
Ogilvie, 2001 SD 29 at ¶ 72, 623 N.W.2d at 71 (Gilbertson, J., dissenting). See also Application of Widdison, 539 N.W.2d 671, 679 (S.D.1995).
[¶ 55.] In addition, Eicher is required to submit an affidavit to this Court stating under oath that:
See Wilka, 2001 SD 148 at ¶ 19, 638 N.W.2d at 250. He must also take and successfully pass the Multistate Professional Responsibility Examination either prior to reinstatement or within six
[¶ 56.] SABERS, ZINTER and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.
[¶ 57.] KONENKAMP, Justice, disqualified.
Eicher also claimed that the confidentiality of disciplinary proceedings precluded him from telling his client about the proceedings concerning his conduct and calling her as a witness. Eicher, however, could have waived that confidentiality. SDCL 16-19-99 provides, in part
2002 SD 112 at ¶ 44, 651 N.W.2d at 286-287. (citations omitted).
South Dakota's version of Rule 11 (SDCL 15-6-11) is the 1983 version of the Federal Rule. It does not contain the twenty-one day notice provision.