IN THE MATTER OF THE PETITION OF STEVEN L. PIER FOR THE REINSTATEMENT TO THE
PRACTICE OF LAW
# 19850
SUPREME COURT OF SOUTH DAKOTA
1997 SD 23;
561 N.W.2d 297;
1997 S.D. LEXIS 24
December 4, 1996, ARGUED
March 5, 1997, OPINION FILED
DISPOSITION:
[***1]
Reinstatement granted.
COUNSEL: LAURENCE J. ZASTROW, Board Counsel, Pierre, South Dakota, Attorney for
disciplinary board.
JOHN SIMKO of Woods, Fuller, Shultz
& Smith, Sioux Falls, South Dakota, Attorneys for petitioner.
JUDGES: KONENKAMP, Justice. MILLER, Chief Justice, and SABERS, AMUNDSON, and
GILBERTSON, Justices, concur.
OPINIONBY: KONENKAMP
OPINION:
[**298]
ORIGINAL PROCEEDING
KONENKAMP, Justice.
[*1] This case requires us to decide what exceptional requirements a lawyer
disbarred for
theft must demonstrate to be
readmitted to practice. Steven L. Pier was
disbarred by order of this Court on July 10, 1991.
Matter of Pier, 472 N.W.2d 916 (SD 1991). He now applies for
reinstatement pursuant to SDCL 16-19-84. Considering his payment of full
restitution, his moral and professional
rehabilitation, and the favorable
recommendation of the State Bar Disciplinary Board, we grant a conditional
reinstatement.
Background
[*2] Pier graduated from the University of South Dakota School of Law and was
admitted to the bar by virtue of the diploma privilege in 1981. He moved to
Yankton and worked there as a deputy state's attorney and in private practice
through 1989, when the circumstances resulting in his
disbarment transpired.
[***2] In that year, Olga Anderson hired
Pier to probate her husband's estate. As the particulars are chronicled in
Pier I, 472 N.W.2d at 916-17, we note here only that Pier cashed two of Anderson's certificates of deposit,
deposited the $ 46,079.14 in his own checking account, and, in the succeeding
four months, spent it all for personal benefit. In the fall of 1989 and the
spring of 1990, Pier twice lied to both Anderson and a Yankton banker about the
location of the money, suggesting it was deposited with a local investment firm
or had been the subject of some confusion at the bank. In September, however,
Pier admitted he had taken the funds and, shortly afterwards, borrowed from his
parents to reimburse Anderson $ 50,760.75 for the money taken plus interest.
[*3] Pier admitted his
wrongdoing to the Disciplinary Board, but in mitigation he revealed severe stress from a
disintegrating
marriage and financial pressures in a new law partnership. His
marriage later ended in divorce. Although we dislike exposing material detailing a
person's private anguish, in view of his request for
reinstatement, it is important to understand what stresses accompanied his ethical lapses. In
the fall of 1988,
[***3] his wife lost her job, so in 1989 they were trying to live on his income
alone. Both Pier and his wife were taking prescription medication for
depression as their deteriorating marital problems created increasing strain.
During
marriage counseling, Pier learned for the first time his wife had been in a
relationship with another man. Pier and his wife separated, but he was still
trying to save his
marriage when the events leading to his
disbarment occurred. The Disciplinary Board found Pier had
misappropriated client fluids in violation of Disciplinary Rule 1.15, Safekeeping Property,
and Rule 8.4,
Misconduct, and recommended
disbarment.
[*4] Finding the misappropriation inexcusable, this Court
accepted the Board's
recommendation, stating,
"We are convinced that the public must be protected from future acts of this
nature, and, thus, we do not hesitate to rule that
disbarment is justified in this case."
Pier
I, 472 N.W.2d at 917. Though Pier avows he always intended to return the money before the
theft was discovered,
"such intent, if it existed, in no degree deprived [his] acts of their
unprofessional and wrongful character."
Matter of Kaas, 39 S.D. 4, 6, 162 N.W. 370, 370 (1917).
[*5] No
[***4] criminal proceedings were ever brought against Pier. Mrs. Anderson, the
victim, not only hoped to spare him professional
discipline, but also criminal liability. Yet the Disciplinary Board noted his actions were
chargeable under SDCL 22-30A-10, Embezzlement of Property Received in Trust,
and SDCL 22-30A-17(1), Grand
Theft. A letter in the disciplinary
file from an assistant attorney general specifies that Anderson's reluctance to
testify and the ongoing bar
discipline process contributed to a decision not to charge him. Despite how we might
personally discern the prosecutive merits, as tribunals sworn to uphold due
process of law, we cannot impute upon a person's record a felony never charged.
Nonetheless, stealing client funds is grave
misconduct, even if no criminal conviction
[**299] results.
See
Matter of Barton, 291 Md. 61, 432 A.2d 1335, 1337 (Md.Ct.App. 1981).
[*6] After hearing his petition for
reinstatement pursuant to SDCL 16-19-83, -84,
& -87, n1 the Disciplinary Board found Pier established by dear and convincing
evidence he should be reinstated. It recommended the following conditions: (1)
that he pass the bar
exam, including the ethics portion; and (2) that he be
supervised for
[***5] two years by a member of the South Dakota Bar approved by the Court. n2
Finding he had
"led an exemplary life since his
disbarment," the Board accepted Pier's explanation his
misconduct was aberrant and out of character, and thus was unlikely to reoccur.
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n1 SDCL 16-19-83 provides, in relevant part,
"A person who has been
disbarred after hearing or by consent may not apply for
reinstatement until the expiration of at least five years from the effective date of the
disbarment." Further, SDCL 16-19-84 mandates that an attorney must apply to the
Disciplinary Board to receive:
a hearing at which the petitioner shall have the burden of demonstrating by
clear and convincing evidence that he has the moral qualifications,
competency and learning in law required for admission to practice law in this state and
that his resumption of the
practice of law within the state
will not be detrimental to the integrity and standing of the bar or the
administration of justice, or subversive of the
public interest.
SDCL 16-19-87 provides, in part:
If the petitioner is found fit to resume the
practice of law, the judgment shall
reinstate him, provided that the judgment may make
reinstatement conditional upon the payment of all or part of the expenses of the
reinstatement and all prior proceedings, and upon the making of partial or complete
restitution to parties harmed by the petitioner's
misconduct which led to his suspension or
disbarment and upon the furnishing of proof of
competency as may be required by the judgment in the discretion of the Supreme Court. The
proof may include certification by the bar examiners of the successful
completion of examinations for admission to practice after the suspension or
disbarment.
[***6]
n2 Gerald Reade, a Yankton lawyer, consented to supervise Pier for this period,
and the Disciplinary Board endorsed his offer. Reade also appeared at the
hearing before this
Court and reaffirmed his commitment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Decision
[*7] We are not bound to accept the Disciplinary Board's
recommendation, although we give it
"careful consideration."
Petition of Reutter, 500 N.W.2d 900, 902 (SD 1993);
Petition of Draeger, 463 N.W.2d 346, 347 (SD 1990);
Petition of Husby, 426 N.W.2d 27, 28 (SD 1988). To decide whether to follow the Board's proposal, we must
thoroughly examine the particular merits of this case, as well as weigh the overall
propriety of reinstating a lawyer who
stole money from a client,
"one of the most serious acts of lawyer
misconduct . . . [which] strikes at the heart of the lawyer-client relationship."
Pier I, 472 N.W.2d at 917. In the past, we have considered a handful of cases of lawyers who have
misappropriated client funds.
See, e.g.,
Matter of Coacher, 438 N.W.2d 549 (SD 1989) (disbarring a lawyer who pled nolo contendere to grand
theft by embezzlement pursuant to SDCL 22-30A-10
[***7]
& -17 for stealing money from clients);
Kaas, 39 S.D. at 7, 162 N.W. at 371 (disbarring a lawyer who
stole money from clients). We have yet to resolve the question presented to us
today: Should a lawyer who
stole over $ 45,000 of a client's money be considered for
reinstatement, and, if so, under what guidelines?
[*8] In grappling with the competing interests involved, we first reaffirm the
purpose of the disciplinary process--to protect the public, not to punish the
lawyer.
Matter of Simpson, 467 N.W.2d 921, 921-22 (SD 1991);
Matter of Stanton, 446 N.W.2d 33, 42 (SD 1989);
Matter of Strange, 366 N.W.2d 495, 497 (SD 1985). On the other hand,
disbarment is no trivial occurrence.
"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."
Matter of Crabb, 416 N.W.2d 258, 259 (SD 1987). Preserving trust in the
legal profession is essential. The
practice of law imposes a formidable responsibility upon lawyers to protect their clients'
"property, freedom, and at times their very lives."
Petition of Chamley, 349 N.W.2d 56, 58 (SD
[***8] 1984). Lawyers who misappropriate client funds for personal benefit violate an
elemental
duty and are most fittingly
disbarred. ABA Standards for Imposing Lawyer Sanctions, Rule 4.1 (1986).
[*9]
[**300] Mindful of these principles,
"[a] court should be slow to disbar, but it should be even slower to
reinstate; it should endeavor to make certain that it does not again put into the hands
of an unworthy petitioner that almost unlimited opportunity to
inflict wrongs upon society possessed by a practicing lawyer."
Matter of Morrison, 45 S.D. 123, 126, 186 N.W. 556, 557 (1922);
see
Petition of Reutter, 500 N.W.2d at 902 (noting that
Morrison remains the philosophy of the Court today). Therefore, a petitioner for
reinstatement must prove, dearly and convincingly, good character and moral
fitness to be trusted again.
Petition of Trygstad, 435 N.W.2d 723, 724 (SD 1989), aff'd
on reh'g,
447 N.W.2d 360 (SD 1989);
Petition of Reutter, 500 N.W.2d at 901. Such a showing must
"be persuasive enough to overcome the court's former adverse judgment on the
appellant's character."
Matter of Egan, 38 S.D. 458, 463-64, 161 N.W. 1003, 1006 (1917). Good character sufficient for initial admission to the
bar is
[***9] inadequate at this stage.
Id.;
Petition of Reutter, 500 N.W.2d at 901. Surely, the more culpable the
misconduct, the greater the burden to prove worthiness for
reinstatement.
See
Petition of Murray, 316 Md. 303, 558 A.2d 710, 711 (Md. 1989). Yet unless we hold
disbarment is final and unalterable, a position never taken previously, we must be open
to the possibility a
disbarred lawyer can so
thoroughly reform that
reinstatement becomes fair and reasonable.
[*10] In our prior
reinstatement decisions, we have evaluated a petitioner's
rehabilitation with several general considerations in mind. For example, in
Draeger we discussed reliability of character, progress in overcoming problems, and
moral
fitness to practice.
463 N.W.2d at 347. We have also examined basic competence in all areas of the law,
Petition of Voorhees, 403 N.W.2d 738, 739 (SD 1987), the effect
reinstatement would have on the integrity of the bar,
Petition of Hopewell, 529 N.W.2d 578, 582 (SD 1995), and the gravity of the conduct prompting
disbarment,
Trygstad, 435 N.W.2d at 725. In the general area of
discipline for misappropriating client funds, we have also remarked on the payment of
restitution.
See,
[***10]
e.g.,
Coacher, 438 N.W.2d at 549. We have yet to formulate, however, comprehensive and exacting criteria to
apply in determining whether to
reinstate a
disbarred lawyer who
misappropriated client funds.
[*11] Several sources are helpful in framing suitable guidelines. The ABA Standards
for Imposing Lawyer Sanctions, for example, note that while the presumption
should be against
reinstatement, a
disbarred lawyer who has proven the following by dear and convincing evidence can be
readmitted: (1) successful completion of the bar examination; (2) compliance with all
applicable
discipline or disability orders or rules; and (3)
rehabilitation and
fitness to practice law. ABA Standards for Imposing Lawyer Sanctions, Rule 2.2 (1986). In cases of
misappropriating client funds, the Standards further suggest injury to the
lawyer's victims be examined at the time of
readmission. ABA Standards for Imposing Lawyer Sanctions, Rule 4.1 (1986).
[*12] Other jurisdictions have adopted diverse ethical inventories to assess an
applicant for
reinstatement. n3 After reviewing
[**301] these and other authorities, we deem the following elements most relevant:
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n3
See, e.g.,
Matter of Robbins, 172 Ariz. 255, 836 P.2d 965, 966 (Ariz 1992) (considering an exhaustive list of elements in a
readmission action);
Hippard v. State Bar of California, 49 Cal. 3d 1084, 782 P.2d 1140, 1145, 264 Cal. Rptr. 684 (Cal 1989) (noting
restitution is a
determinative factor);
In re Clark, 607 A.2d 1230, 1236 (Del 1992) (holding that the applicant's legal, and not simply personal,
rehabilitation was helpful); Florida Bar
re Jahn, 559 So. 2d 1089, 1090 (Fla 1990) (noting
rehabilitation, time since the
disbarment, and moral character were important);
Matter of Reed, 258 Ga. 271, 368 S.E.2d 499, 500 (Ga 1988) (finding remorse,
rehabilitation, and moral
fitness to practice as key factors);
In re Polito, 132 Ill. 2d 294, 547 N.E.2d 465, 468, 138 Ill. Dec. 298 (Ill 1989) (cataloguing six issues to consider);
Petition of Murray, 316 Md. 303, 558 A.2d 710, 711 (Md 1989) (listing four factors, including conduct
subsequent to
disbarment, as
determinative);
Matter of Pool, 401 Mass. 460, 517 N.E.2d 444, 447 (Mass 1988) (listing five items for consideration in the
reinstatement process);
Matter of Reinstatement of Wegner, 417 N.W.2d 97, 98-99 (Minn 1987) (finding
consciousness of
wrongdoing, prior illness, and seriousness of
misconduct significant);
Matter of Stafford, 106 N.M. 298, 742 P.2d 510, 511 (NM 1987) (noting, among others, that
restitution was an important factor);
Matter of Bradley, 897 P.2d 243, 244 (Okla 1993) (listing eight factors, including the applicant's
consciousness of
wrongdoing, as
determinative);
In re Rosellini, 108 Wash. 2d 350, 739 P.2d 658, 660-61 (Wash 1987) (considering applicant's standing,
reputation, and appreciation of wrongfulness as important factors).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***11]
1. present moral
fitness;
2. acceptance of
wrongdoing with sincerity and honesty;
3. extent of
rehabilitation;
4. nature and seriousness of the original
misconduct and the disrepute it brought on the
legal profession;
5. conduct following the
discipline, including whether there has been any unauthorized
practice of law;
6. time elapsed since the original
discipline;
7. character, maturity and experience at the time of
discipline and now;
8. current
competency and qualifications to practice law;
9.
restitution; and
10. proof that resumption of the
practice of law within the state will not be detrimental to the integrity and standing of the
bar or the administration of justice, or subversive of the
public interest.
See generally SDCL 16-19-84. For further supporting authority,
see n.3
supra. A numerical arrangement of these factors in no way suggests some are less
important than others.
"Until we are fully satisfied of thorough reformation, we [cannot] . . . certify to the honesty of one whose conduct has been such as to
render him unfit as a member of an honorable profession, without being derelict
in the
duty
[***12] we owe, as members of this court, to the public and the profession."
Kaas, 39 S.D. at 6, 162 N.W. at 371.
[*13] To begin, we must
thoroughly consider Pier's moral
fitness, including his
consciousness of
wrongdoing and the extent of his
rehabilitation.
Petition of Reutter, 500 N.W.2d at 901. In both the Board hearing and at the hearing before us, Pier was open and
honest and plainly confessed his
misconduct. This was also his posture during the initial Board hearing in 1991, as he
testified candidly about the
theft, even though he was unaware at the time whether his admissions would be used in
criminal proceedings against him.
Compare
Petition of Hopewell, 529 N.W.2d at 582 (petitioner for
reinstatement refused to accept responsibility for prior
misconduct).
[*14] Members of the bar from Yankton and elsewhere, and other
persons in the professional community, offered testimony and affidavits in
support of Pier's
readmission. n4 His contacts with some of these people were occasioned through his
extensive public and church commitments both before and since his
disbarment. Now he appears to have the backing of an entire community. His supporters have
witnessed his devoted participation in
[***13] civic and philanthropic affairs, all of which confirm good moral traits.
See
Matter of Barton, 432 A.2d at 1337. We are impressed that lawyers and lay people alike affirm his good character
and
reputation. Community support, while not dispositive, suggests Pier's
readmission will not impugn the
public interest.
In re Clark, 607 A.2d 1230, 1234 (Del 1992);
Petition of Murray, 558 A.2d at 714-15.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Those supporting Pier include the immediate past president of the bar, a
retired judge, a
former legislator, and a former Yankton County Commissioner.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*15] Pier worked as a paralegal following his
disbarment. Gerald Reade and Frank Brady, reputable, longtime members of the South Dakota
Bar, employed him in their office to research, investigate, and prepare court
documents. Consequently, Pier has kept current particularly in the matters in
which Reade practices, including personal injury, products liability, and
workers' compensation. Both Reade and Brady testified at the Board hearing that
they found Pier to
[***14] be trustworthy, competent, and diligent. Brady is a former bar president,
legislator, and mayor. Accordingly, the Board gave these endorsements
appreciable weight. Further, there was no evidence Pier overstepped his
duties as a paralegal and crossed over into the unauthorized
practice of law. A Sioux Falls lawyer attested to this fact recounting that, in his dealings
with the firm, Pier had been in a
situation where he might have been tempted
[**302] to behave as if he were practicing law, but properly declined.
[*16] Unquestionably, the original
misconduct was destructive, bringing discredit upon the
legal profession. Handling client funds requires trust and confidence attributes essential to
the attorney-client relationship. ABA Standards for Imposing Lawyer Sanctions,
Rule 4.1 Commentary (citing
In re Wilson, 81 N.J. 451, 409 A.2d 1153, 1154-55 (NJ 1979));
see also
Matter of Tidball, 503 N.W.2d 850, 856 (SD 1993). This trust was betrayed, and yet we think it can be restored. Pier's payment
of full
restitution does more than just settle accounts.
"Restitution is fundamental to the goal of
rehabilitation."
Hippard v. State Bar of California, 49 Cal. 3d 1084, 782 P.2d 1140, 1146, 264 Cal.
[***15] Rptr. 684 (Cal 1989). Pier repaid what he took, with interest, within days after he admitted guilt.
Repayment alone will not establish
rehabilitation, but certainly
restitution expresses the sincerest form of atonement and the surest mark of
accountability.
[*17] We conclude the Board's
recommendation for
reinstatement rests upon sound and substantial grounds and that Pier has met his burden of
proving by clear and convincing evidence he has regained
fitness to practice. The
public interest, the administration of justice, and the
reputation of the bar will not be undermined if Pier is
readmitted. One remaining point, however, gives us pause. SDCL 16-19-83 provides a
disbarred attorney may apply for
reinstatement five years after
disbarment becomes effective.
Accord ABA Standards for Imposing Lawyer Sanctions,
Rule 2.2 Commentary (1986) (noting
"in no event should a lawyer even be considered
for
readmission until at least five years after the effective date of
disbarment"). Pier's petition arrived little more than five years after his July 1991
disbarment. We would be more confident, ordinarily, with a longer period to clearly
establish
rehabilitation before a
disbarred lawyer petitions
[***16] for
readmission.
See generally
Matter of Pool, 401 Mass. 460, 517 N.E.2d 444 (Mass 1988) (five-year
disbarment necessary). However, Pier's sincere remorse for his wrongful conduct and his
convincing moral amends establish renewed
fitness to practice. Moreover, since his
readmission is probationary, we know his activities will be carefully scrutinized for two
years. We believe, therefore, in the unique circumstances of this case, his
petition for
reinstatement was not premature.
[*18] While his
misconduct was harmful to both the public and the bar, we now look to
"temper justice with mercy,
believing that his professional life is redeemable."
Stanton, 446 N.W.2d at 43 (Henderson, J., dissenting). Pier is conditionally reinstated, subject to the
following requirements: (1) he must pass the bar
exam, including the ethics portion; (2) he will be closely supervised for two years
by Gerald Reade or another member of the bar approved by this Court; (3) he
must maintain malpractice liability insurance, with proof supplied to the
Board; and (4) he must pay all expenses of the
reinstatement. SDCL 16-19-87 (permitting conditional
reinstatement);
Petition of Voorhees, 403 N.W.2d at 739 (affirming
[***17] the Court's power to require a petitioner for
readmission take the bar
exam);
cf. SDCL 16-16-17.1 (vesting power in the Court to admit lawyers to practice on a
conditional basis).
[*19] MILLER, Chief Justice, and SABERS, AMUNDSON, and
GILBERTSON, Justices, concur.
