Discipline of Hopewell, Matter of
| Decision Date | 03 November 1993 |
| Docket Number | No. 18103,18103 |
| Citation | 507 N.W.2d 911 |
| Parties | In the Matter of the DISCIPLINE OF Richard James HOPEWELL, as an Attorney at Law. . Original Proceeding |
| Court | South Dakota Supreme Court |
R. James Zieser, Tyndall, for complainant Disciplinary Bd.
Carleton R. Hoy of Hoy and Hoy, Sioux Falls, for respondent Hopewell.
This is a disciplinary proceeding against Richard Hopewell (Hopewell), a member of the State Bar of South Dakota. For the most part, he has admitted the factual allegations against him. There remains for this Court, the issue of a determination of the appropriate manner of discipline. The Disciplinary Board of the State Bar of South Dakota has recommended public censure. The Referee, after entering his findings of fact, recommended public censure, Hopewell pay all costs associated with the proceedings and that Hopewell be ordered to take and achieve a passing score on the Multi-State Professional Responsibility Examination.
Hopewell was admitted to the practice of law in South Dakota on the 16th day of August, 1962. Thereafter he commenced a private practice of law and is presently a sole practitioner in Sioux Falls, South Dakota.
In 1990 Hopewell entered the judicial election in the Second Judicial Circuit against incumbent Circuit Judge Gene Paul Kean. As a candidate, Hopewell was invited to attend a conference on May 11, 1990 wherein the campaign rules governing a judicial candidacy were presented. Hopewell failed to attend this conference. On July 16, 1990, he subsequently received a letter from the State Bar detailing the responsibilities of a candidate for judicial office under the South Dakota Rules of Professional Conduct ("Rules") and the South Dakota Code of Judicial Conduct ("Code"). 1 The letter informed Hopewell that if he had any questions on the ethics of campaigning, he could contact the chairman of the Judge's Association Ethics Committee for guidance. Attached to the letter was a copy of the South Dakota Code of Judicial Conduct.
On August 26, 1990 Hopewell released a document to those in attendance at the Annual NAACP Picnic in Sioux Falls under his signature. This "press release" claimed Hopewell was a "friend compatriot and advocate" for the "Native Americans, blacks, farmers, women and other distressed elements of society." This press release on Hopewell's legal stationary continued:
I am a candidate for reform of the Courts in Minnehaha County. If elected this coming November 6, I will be in a position to publicly reveal specifics of corruption of justice in the Minnehaha County Courthouse, which opportunity [sic] now denies [sic] me by the constraints of rules established by the South Dakota Judicial Election Campaign Guideline Committee comprised of incumbent State Judges and power brokering lawyers for vested interests. Rules of this Committee forbid me to expose judicial corruption, take issue with regressive decisions in the past made by my opponent, or to make public sharp jurisprudential philosophical differences Judge Kean and I have on the administration of justice in our local courts. The judicial campaign rules are in dire and urgent need for reform.
Where Judge Kean no doubt has a campaign treasury chest heavily laden with lavish contributions by politically influential lawyer and lobbyist power brokers for liability risk insurance companies, finance, environmental polluters and the heavy handed law enforcement establishment of this community, my campaign shall continue to refuse contributions from lawyers and lobbyists for the vested interests which now corrupt our system of justice.
Hopewell also announced that he had received $50.00 in campaign contributions and named the two contributors. He pledged to publicly disclose the names of his future contributors and the amounts of the contributions. Hopewell challenged Judge Kean and Kean's campaign committee to do the same.
On September 28, 1990 Hopewell delivered a speech to the Minnehaha County Democratic Forum in Sioux Falls. In that speech Hopewell accused Judge Kean of giving "the most severe of punishments" under the "cruel and deceptive guise of deterrence of crime" on "juvenile Native American offenders" as D.A. Hopewell went on to announce he was a judicial progressive and that Judge Kean "is a judicial reactionary."
Hopewell accused Judge Kean of running a "patronage system" in the selection of court-appointed defense counsel. The judge was further accused of "can't do enough for lawyer friends." Hopewell also stated that competency is no longer a factor in court appointments and that through this discriminatory process, defendants are not getting the most effective representation.
Hopewell also criticized Judge Kean's handling of Yarnall v. Yarnall, 460 N.W.2d 161 (S.D.1990), a child custody matter. At that time Yarnall was still an on-going case. Hopewell was not involved in the case and his comments on Judge Kean's handling of the case were from other than actual observation.
Hopewell counters that when the speeches were delivered, he removed some of the more inflammatory portions. However unedited printed texts were made available to the public and attending press at both events. At oral argument Hopewell stated that at least portions of both speeches were published in the Sioux Falls Argus Leader, the largest circulating newspaper in the state.
Hopewell called the Referee's attention to an article published in the Sioux Falls Argus Leader on March 4, 1993. It makes reference to a statement Hopewell gave the Argus Leader which was published on October 23, 1990, just days before the election.
It's true I was found nude at the Alick Drug. It should be noted, however, that it occurred as a result of an hallucinogenic experience induced by my having been surreptitiously drugged with what I'm told is called PCP by a secret agent of a political adversary who was noted for his dirty tricks and unethical behavior, and is now very probably allied with Gene Paul Kean and who may well have advanced this information to you for purposes of my campaign embarrassment.
In a brief filed with this Court in State v. Schmidt, 482 N.W.2d 325 (S.D.1992), Hopewell claimed that Circuit Judge Martin of the Third Circuit had promised Hopewell's client, Schmidt, a lenient sentence thus convincing Schmidt to plead guilty. Hopewell, in the brief, alleged Judge Martin reneged on this promise and gave his client six months in jail. Both the Board and the Referee found that Judge Martin made no such statement.
Hopewell in his response to the Board's formal accusations concerning the Judge Martin incident, informed this Court that as he was accused of attacking the integrity of a judge, it was impossible for Hopewell to get a fair and impartial hearing in front of the Disciplinary Board "and this Court." He demanded a jury trial to determine which was correct, Judge Martin's version of the facts or Hopewell's version of the facts.
At the June 12, 1991 hearing before the Disciplinary Board, Hopewell appeared and admitted he violated the ethical rules and canons. Inexplicably he then proceeded to re-affirm many of his previous public statements he made and in some cases the statements before the Board were more extreme and irresponsible than the original public statements.
The Referee found that Hopewell now shows a genuine remorse and true contrition for his numerous violations of the Rules of Professional Conduct and the South Dakota Canons of Judicial Conduct. Hopewell states he has formally apologized to Judge Kean, Judge Martin and at oral argument apologized to this Court for any embarrassment he has caused to the legal system.
The statements that there exists "a collapse of rule of law" and the implication that Native Americans, blacks, farmers, women and other "powerless financially distressed nonvested" elements of society are not being treated fairly and impartially by the judiciary were found by the Board and the Referee to be a violation of Rule of Professional Conduct 8.2(b). That rule requires that a lawyer who is a candidate for judicial office comply with the applicable provisions of the Code 2. Canon 2A of the Code requires that "a judge should respect and comply with the law and should conduct himself at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary." We concur with the determination of the Board and Referee. During a judicial campaign, a candidate may in an appropriate manner accurately criticize a sitting judge, but may not impugn the integrity of the judicial system. Matter of Riley, 142 Ariz. 604, 612, 691 P.2d 695, 703 (Ariz.1984).
The Board and Referee found that Hopewell's statement that he would expose the specifics of corruption of justice in the Minnehaha County Courthouse to be violations of Rule 8.2(b) and Canons 1 3, 2 A and 7 B(1)(a). 4 The same findings were made concerning Hopewell's statement that the system of justice was now corrupt because of the influence of "politically influential lawyer and lobbyists, power brokers for liability risk insurance companies, finances, environmental polluters and heavily handed law enforcement establishment." We concur with the determination of the Board and Referee. See In re Kaiser, 111 Wash.2d 275, 759 P.2d 392, 396-7 (Wa.1988).
The comment that the "South Dakota Judicial elections campaign guidelines committee compromised of incumbent state judges and pawnbrokering lawyers for vested interests" have gagged Hopewell is found to be a violation of Rule 8.2(b) and Canons 1, 2 A, 7 B(1)(a) and 7 B(1)(c). 5
The Board and Referee found that Hopewell's statement that Judge Kean had a "campaign treasury heavily laden with lavish contributions by politically influential lawyers and lobbyists, power brokers for liability risk insurance companies,...
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