GILBERTSON, Chief Justice.
[¶ 1.] Following the release of this Court's decision in Reaser v. Reaser, 2004 SD 116, 688 N.W.2d 429, the Disciplinary Board of the State Bar of South Dakota
[¶ 2.] Ortner is sixty-three years old. He graduated from the University of South Dakota with a degree in political science in 1965. Following graduate work and a fellowship, he worked for the governor of Iowa, was an assistant city manager in Sioux City, Iowa, and was a researcher for the Midwestern Office of the Council of State Government. He began working for South Dakota's Legislative Research Council in 1970, eventually becoming its director.
[¶ 3.] In 1976 Ortner entered the University of South Dakota's School of Law. He was one of fourteen graduating in December 1978 and said that he was at the top of these fourteen.
[¶ 4.] Since being admitted to the State Bar of South Dakota Ortner has practiced in Hot Springs, South Dakota. His focus consists mainly of real estate work, estate planning and probate. In the course of his practice he has represented "numerous clients in divorce and family law areas," although he attempts to avoid divorces involving minor children and never handles contested custody cases.
[¶ 5.] Ortner has been the subject of three prior complaints before the Disciplinary Board. Two were dismissed as frivolous. For the third, in 2001, he received an admonition for a technical, unintentional violation of the Rules of Professional Conduct which govern conflicts of interest.
[¶ 6.] Throughout his career Ortner has been active in non-profit service organizations, community boards, bar committees and state and county commissions. His outside interests include fishing and scuba diving.
[¶ 7.] Throughout their marriage David and Jami Reaser lived on David's family ranch where he worked. For twenty years Ortner helped the family with branding. When David initiated divorce proceedings in 1999 he retained Ortner to represent him. Jami did not have a lawyer. Ortner was aware that Jami's mother and stepfather were South Dakota lawyers and he assumed that they were assisting her.
[¶ 8.] Ortner prepared a stipulation regarding child custody, child support, alimony and property division which David and Jami signed. Pursuant to this stipulation David received custody of the children and relieved Jami of any child support obligation. Jami waived alimony. Ortner was aware of Circuit Judge Kern's policy to require child support in divorce decrees because when he presented the stipulation and decree of divorce to Judge Kern, he specifically "advised her there was something unusual about this particular stipulation for this divorce and that was that there was no provision in it for child support." Judge Kern refused to grant the divorce due to the omission of any provision for child support.
[¶ 9.] Ortner advised David that whoever did not have primary custody of the children would have to pay child support. Since David was receiving custody, Ortner
[¶ 10.] Ortner revised the stipulation to include a provision for child support:
The judgment decreeing dissolution of marriage that Ortner drafted incorporated the stipulation, "it being the intention of this court that all of the terms and conditions of said Stipulation be made an express part of this Decree of Dissolution."
[¶ 11.] At the time Ortner drafted these documents he also drafted a "Private Contractual Agreement Between Parties" which provided:
[¶ 12.] On March 29, 1999 Jami came to Ortner's office and signed the revised stipulation and the private contractual agreement. David signed the documents the next day. Judge Kern signed the judgment decreeing dissolution of marriage which incorporated the revised stipulation on April 1. It was filed on April 6, 1999. At no time did Ortner advise Judge Kern of the private contractual agreement.
[¶ 13.] In May 2002 Jami moved for a change in custody and sought child support. Circuit Judge Thomas Trimble heard the motions and learned of the existence of the private contractual agreement. He denied the motion for a change of custody and advised David that he was free to seek child support from Jami.
[¶ 14.] In the fall of 2002 David initiated a child support action against Jami. The child support referee's recommendations that Jami pay current child support and arrearages were adopted by the circuit court. Jami's motions to set aside the
[¶ 15.] Ortner's affidavit states:
Further Affiant sayeth not.
[¶ 16.] Judge Delaney filed findings of fact, conclusions of law and an order vacating judgment in regard to child custody, visitation, alimony and property settlement on November 18, 2003. Judge Delaney did so essentially sua sponte, because of
[¶ 17.] David appealed. In Reaser v. Reaser he contended "that the court erred because the motion to set aside this decree was not made within one year as required by SDCL 15-6-60(b)." Id., 2004 SD 116 at ¶ 15, 688 N.W.2d at 434.
[¶ 18.] In Reaser this Court noted that because David did not challenge Judge
Id., 2004 SD 116 at ¶ 19, 688 N.W.2d at 435 (quoting Gifford v. Bowling, 86 S.D. 615, 625, 200 N.W.2d 379, 384 (1972)).
[¶ 19.] In Reaser v. Reaser we examined Ortner's conduct in light of Judge Delaney's findings:
Id., 2004 SD 116 at ¶ 19-23, 688 N.W.2d at 435-436.
[¶ 20.] This Court's opinion in Reaser v. Reaser was handed down on October 13, 2004. Six days later, on October 19, 2004, Ortner wrote to Judge Kern:
[¶ 21.] The Disciplinary Board generated a complaint against Ortner based upon his conduct in Reaser v. Reaser. In its Notice of Hearing the Disciplinary Board informed Ortner that:
[¶ 22.] Ortner's hearing before the Disciplinary Board took one hour on January 7, 2004. Ortner was the sole witness. Exhibits
[¶ 23.] On February 15, 2005 the Disciplinary Board entered its findings of fact, conclusions of law, recommendations, and formal accusation. The Board found, in part,
[¶ 24.] The Board concluded:
[¶ 25.] The Board recommended, in part:
STANDARD OF REVIEW
[¶ 26.] This Court gives careful, due consideration to the Disciplinary Board's findings of fact because it had the advantage of encountering the witness first hand.
[¶ 27.] Article V, Section 12 of the South Dakota Constitution places an affirmative duty on this Court to "govern terms of courts, admissions to the bar and discipline of members of the bar." We defined our constitutional regulatory relationship with the bar in Supreme Court Rule 78-1, Rule II(a) which is codified at SDCL 16-19-31:
The purpose of the disciplinary process is to protect the public from fraudulent, unethical or incompetent practices by attorneys. Matter of Discipline of Kallenberger, 493 N.W.2d 709 (S.D.1992). It is also intended to deter like conduct by other attorneys. In re Discipline of Eicher, 2003 SD 40, 661 N.W.2d 354. The disciplinary process is not conducted to punish the lawyer. Petition of Pier, 1997 SD 23, 561 N.W.2d 297.
In re Discipline of Mattson, 2002 SD 112, ¶ 40, 651 N.W.2d 278, 286.
[¶ 28.] An attorney possesses and exercises "substantial power and authority." Discipline of Laprath, 2003 SD 114 at ¶ 42, 670 N.W.2d at 55. "A certificate of admission to the bar is a pilot's license which authorizes its possessor to assume
[¶ 29.] This Court's decisions have made it clear that parents in South Dakota, as a matter of public policy and statutory duty, have an obligation to provide support for their children. Thomas v. Hague, 2002 SD 12, 639 N.W.2d 520. Ortner, in the course of his twenty-five plus years of practice, "represented numerous clients in divorce and family law matters" and was charged with this knowledge of black letter law.
[¶ 30.] Rather than advising David concerning child support obligations, Ortner followed his client's directive and drafted the original stipulation and divorce decree which omitted the payment of on-going child support. When Ortner submitted the documents to Judge Kern, she refused to enter a decree that provided no support.
[¶ 31.] Ortner advised David of Judge Kern's position and suggested that the stipulation and decree provide for support. He then advised David that he could tear up the support checks, thereby thwarting the intention of the child support obligation. When David advised Ortner that Jami insisted on a written agreement waiving child support Ortner did not advise him that parties cannot make a valid irrevocable contract relieving them of the duty to support their minor children. Thomas, 2002 SD 12 at ¶ 8, 639 N.W.2d at 521. Rather, he prepared a revised stipulation providing for child support and a private contractual agreement where each party agreed to "not seek to collect child support" from the other. Ortner advised Jami, who was unrepresented, that the private contractual agreement bound the parties.
[¶ 32.] When Ortner presented the revised stipulation providing for child support and the decree incorporating its terms to Judge Kern she signed the decree. As the Disciplinary Board found, "Ortner did not advise Judge Kern of the parties' intent to not actually collect child support from each other, nor did he inform her of the existence of their written agreement to that effect." Moreover, Ortner admitted at the Disciplinary Board hearing that in one other case he had prepared a similar type of secret agreement in an attempt to avoid paying child support. In Eicher, 2003 SD 40 at ¶ 29, 661 N.W.2d at 364, and previous cases we examined, the attorney's motive behind his misconduct:
[¶ 33.] The Disciplinary Board also found, however, that "Ortner's conduct toward Judge Kern was not based on an intent to defraud the trial court, nor did he intend to violate any laws." This language basically adopts language in Ortner's letter of apology to Judge Kern. It is not consistent with Ortner's admission that when he initially sought approval of the decree without child support, he specifically called that matter to Judge Kern's attention
[¶ 34.] The egregious conduct of committing fraud upon the court also violates SDCL 16-16-18 (Oath of Attorney which provides, in part, "I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law[.]"), SDCL 16-18-13 (Attorney's duty to respect courts), SDCL 16-18-19 (Attorney's duty to use truthful means), and SDCL 16-18-26(1) (Misdemeanor to practice deceit or collusion with intent to deceive the court). As such, the Board's finding is clearly erroneous.
[¶ 35.] We agree with the Disciplinary Board's finding that Ortner violated Rules 3.3 (Candor Toward the Tribunal)
Matter of Bihlmeyer, 515 N.W.2d 236, 239 (S.D.1994). "Attorneys have the responsibility to present the record with accuracy
[¶ 36.] The disciplinary options at this Court's disposal are private reprimand, 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. The appropriate discipline in a particular case is determined by considering the seriousness of the misconduct, the likelihood that it or similar misconduct will be repeated, and the attorney's prior record. Discipline of Eicher, 2003 SD 40 at ¶ 47, 661 NW2d at 369.
[¶ 37.] Without question Ortner has led a life of public service. His disciplinary history is minimal. Custer and Fall River County attorneys have found him honest and ethical in legal matters. The judge he deceived views his deception as an isolated act that will not be repeated. Weighing against this, however, is that Ortner's conduct in this matter was a direct fraud on the court which corrupted the delicate balance of judicial fact finding, went to the heart of legal decision making and constituted egregious conduct by an officer of the court that corrupted the judicial process
[¶ 38.] The Board found that Ortner was sincerely sorry for his misconduct. However that must be significantly tempered by the fact he did not self-report and only apologized after the acts were discovered by Judge Trimble and Judge Delaney and were examined and published in Reaser v. Reaser. Ortner allowed them to remain a significant fraud on the court until that discovery. Ortner only admitted his misconduct after publication of Reaser even though his letter to Judge Kern indicated that when "this came to light in April of 2003, I did an affidavit admitting to everything that had occurred. Since that date I have not had a decent night of sleep." Thus, Ortner admitted he was clearly aware of his ethical violations no later than April 2003 to the point where he could not sleep because of its seriousness. Nevertheless he waited an additional sixteen months to apologize and never did self report to the Disciplinary Board.
[¶ 39.] In its finding the Disciplinary Board found that as a result of the publication of Reaser v. Reaser, Ortner has "already experienced considerable public humiliation and notoriety, as well as personal grief and anguish." The Board's rationale is inconsistent with our holding since statehood that the purpose of an attorney disciplinary proceeding is for the protection of the public and not to punish the offending attorney. Publicity and personal grief are not factors in deciding appropriate discipline. "Under art V, § 12 of our Constitution, this Court, and not the media nor any third party, is solely charged with the responsibility for determining what is appropriate discipline in an attorney misconduct case." Discipline of Mattson, 2002 SD 112 at ¶ 51, 651 N.W.2d at 288; Discipline of Wilka, 2001 SD 148, ¶ 17, 638 N.W.2d 245, 250; Discipline of Dorothy, 2000 SD 23 at ¶ 40, 605 N.W.2d at 505; Matter of Discipline of Hopewell, 507 N.W.2d 911, 917 (1993).
[¶ 40.] The citizens of this state and those non-residents who seek relief in our Courts have a right to expect that as far as humanly possible, the fact finders, be they a jury or a judge will attempt to find the true facts and correctly apply the law. Witnesses take oaths to tell the truth. Jurors take oaths to do their duty. Judges take an oath consistent with their calling. All of this crumbles should an attorney violate his oath and perpetrate a fraud upon the court.
Ochs v. Nelson, 538 N.W.2d 527, 531 (S.D. 1995).
[¶ 42.] Unfortunately when we examine the issue of an attorney intentionally misleading a court or other similar acts, we do not find a case of first impression. Clearly it has been an on-going issue which has faced this Court with disappointing regularity. In re Arendt, 2004 SD 83, 684 N.W.2d 79; In re Discipline of Laprath, 2003 SD 114, 670 N.W.2d 41; In re Discipline of Eicher, 2003 SD 40, 661 N.W.2d 354; In re Discipline of Wilka, 2001 SD 148, 638 N.W.2d 245; In re Discipline of Dorothy, 2000 SD 23, 605 N.W.2d 493; Matter of Bihlmeyer, 515 N.W.2d 236; Matter of Discipline of Hopewell, 507 N.W.2d 911; Matter of Discipline of Schmidt, 491 N.W.2d 754.
[¶ 43.] In some cases we have examined an attorney's misrepresentation and have determined that public censure was the appropriate discipline:
Discipline of Wilka, 2001 SD 148 at ¶ 14, 638 N.W.2d 245 at 249. We warned, however, "[p]ublic censure in this type of case has been the penalty of the past, but whether it will be in the future is debatable
[¶ 44.] This Court suspended Eicher, in part, for failure to let the court know he was in possession of a video tape which he claimed to be missing and essential to the defense of his client. In Matter of Voorhees, 294 N.W.2d 646 (S.D.1980) we disbarred an attorney who forged a document to obtain a greater federal payment for a business enterprise.
[¶ 45.] Most recently, the Board recommended the 120 day suspension of an attorney who violated Rules 3.3 and 8.4, SDCL 16-18-26(1) and SDCL 16-18-19. In re Arendt, 2004 SD 83 at ¶ 14, 684 N.W.2d at 79. In 1995 Arendt entered a business transaction with a client but failed to advise the client of the requirements of Rule 1.8. In response to the Board's inquiry, Arendt submitted a document purported to be a copy of a 1995 letter to the client advising him of the requirements of Rule 1.8. The letter was a fabrication. When the Disciplinary Board informed Arendt's counsel of its concerns about the letter's accuracy, Arendt admitted that he had created the letter to mislead the Board and promptly advised the Board that the document was false. In testimony before the Board Arendt admitted the letter was false and was remorseful.
[¶ 46.] The Disciplinary Board concluded that "no public interest or professional purpose would be served by suspending Ortner's privilege to practice law." Its recommendation of a public censure cannot be accepted by this Court in light of the conduct in Voorhees; Eicher and most recently Arendt where the Board recommended suspension only months before this case.
[¶ 47.] It is difficult to conceive of a more blatant act of fraud than that committed in Ortner's drafting of the private contractual agreement and his participation in its execution which were directly contrary to the trial court's express direction after reviewing the first stipulation. This cannot be viewed as accidental or an honest mistake as Ortner has conceded that he knew prior to this case that it was Judge Kern's policy to require child support in divorce cases involving minor children. This private agreement did exactly what the trial court refused to approve after Ortner previously called the proposed no-support provision to the court's attention. The subsequent execution of the decree of dissolution was predicated on the revised stipulation's provision providing for meaningful child support. Ortner failed to self report for approximately six years. It was only after Judges Trimble and Delaney discovered the private contractual agreement that Ortner admitted his conduct. His apology to Judge Kern came only after the release of our decision in Reaser v. Reaser where his conduct became public. Moreover, he admitted he prepared a similar "secret agreement" on another occasion.
[¶ 48.] Lawyers must guard against conduct that diminishes public confidence in the legal system. See Matter of Estate of Schuldt, 428 N.W.2d 251 (S.D. 1988). While the legal profession is largely self-governing, the ultimate authority over the profession is vested with this Court, Art V, § 12 of the South Dakota Constitution. The preamble to the South Dakota Rules of Professional Conduct provides, in part:
It is clear from the frequency of this type of misconduct that public censure is not providing sufficient deterrence to adequately protect the public in the future.
[¶ 49.] Had there been a history of violations by Ortner or if we suspected he was likely to repeat such acts in the future, for the protection of the public our only appropriate course of action would be to enter an order of disbarment.
[¶ 50.] Nevertheless, we once again stress the duty SDCL 16-19-31 places upon this Court:
See also Laprath, 2003 SD 114 at ¶ 43, 670 N.W.2d at 55-56. Moreover:
In re Ramsey, 24 S.D. 266, 274, 123 N.W. 726, 729 (1909) (quoting Serfass' Case, 116 Pa. 455, 9 A. 674; In re Elliott, 18 S.D. 264, 100 N.W. 431 (1904)).
[¶ 51.] After reviewing this record we conclude that Ortner's conduct was of such egregious professional nature that it is in the best interests of the public and the legal profession to suspend him from the practice of law for a period of nine months.
[¶ 52.] Pursuant to SDCL 16-19-35(2) a judgment of suspension will be entered for a period of nine months effective July 29, 2005. Within ten days after the effective date of the suspension order, Ortner shall file with the Supreme Court an affidavit showing:
[¶ 53.] Prior to any application for reinstatement Ortner must take and pass the
[¶ 54.] Upon expiration of his suspension Ortner may file a petition for reinstatement pursuant to SDCL 16-19-87. He must also submit an affidavit to this Court stating:
[¶ 55.] ZINTER and MEIERHENRY, Justices, and WILBUR, Circuit Judge and MILLER, Retired Justice, concur.
[¶ 56.] WILBUR, Circuit Judge, for SABERS, Justice, disqualified.
[¶ 57.] MILLER, Retired Justice, for KONENKAMP, Justice, disqualified.
It is professional misconduct for a lawyer to: