In re Discipline of Janklow
| Decision Date | 04 January 2006 |
| Docket Number | No. 23724.,23724. |
| Citation | 2006 SD 3,709 N.W.2d 28 |
| Parties | In the Matter of the DISCIPLINE OF William J. JANKLOW as an Attorney at Law. |
| Court | South Dakota Supreme Court |
Robert B. Frieberg, Beresford, South Dakota, Attorney for the Disciplinary Board.
Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for William J. Janklow.
[¶ 1.] This is a disciplinary proceeding against William J. Janklow (Janklow), a member of the State Bar of South Dakota. The Disciplinary Board of the State Bar of South Dakota (Disciplinary Board) has recommended that Janklow be suspended from the practice of law for a total of twenty-six months from December 15, 2003, and that he be reinstated without further proceedings on February 15, 2006, subject to conditions.
[¶ 2.] We find that a twenty-six month suspension of Janklow's license to practice law, together with the recommended conditions upon reinstatement, is appropriate.
[¶ 3.] Janklow graduated from the University of South Dakota School of Law in 1966 and was admitted to the practice of law. He began his legal career as director of the legal aid program at Mission, South Dakota where he worked for approximately six years representing indigent clients. He then practiced in Pierre, South Dakota for approximately two years. Janklow served as Attorney General of South Dakota from 1975 to 1979 and served as Governor of South Dakota from 1979 to 1987 and from 1995 to 2003. Between his terms as Governor, Janklow spent approximately eight years in private practice in Sioux Falls, South Dakota. Janklow was elected to the United States House of Representatives in November 2002 and was serving in that capacity at the time of the events leading to this disciplinary action.
[¶ 4.] On December 8, 2003, a Moody County jury convicted Janklow of failure to stop at a stop sign, speeding, reckless driving and second degree manslaughter. The charges arose from an August 16, 2003, collision which killed Randolph Scott. A detailed statement of the criminal case can be found in State v. Janklow, 2005 SD 25, 693 N.W.2d 685. Trial evidence documented numerous speeding incidents and other traffic violations. On December 9, 2003, Janklow reported the felony conviction to this Court. As provided by SDCL 16-19-37, Janklow's license to practice law was suspended on December 15, 2003 pending formal disciplinary proceedings pursuant to SDCL 16-19-39.
[¶ 5.] The trial court sentenced Janklow on January 22, 2004. Pursuant to SDCL 23A-27-13, the trial court granted a suspended imposition of sentence on the second degree manslaughter charge. Under the terms of the suspended imposition of sentence, Janklow was placed on probation for a period of three years under certain conditions, including that he serve one hundred days in the Minnehaha County Jail, that he pay a fine of $5,000, and that he not drive a motor vehicle during the period of his probation. Janklow appealed and his convictions were affirmed in Janklow, 2005 SD 25, 693 N.W.2d 685.
[¶ 6.] The Disciplinary Board held a hearing on this matter on June 13, 2005, and filed its findings of fact, conclusions of law and recommendation with this Court on August 1, 2005. Janklow did not object and a referee was not appointed. The Disciplinary Board recommended that Janklow be suspended from the practice of law for a total of twenty-six months commencing December 15, 2003, with reinstatement without further proceedings on February 15, 2006, subject to the following conditions:
(a)That he fully comply with all terms and conditions of his probation.
(b)That he promptly advise the Secretary of the Disciplinary Board of any violation of his probation, and the Disciplinary Board make a determination of whether to recommend [Janklow's] license be again suspended or other discipline imposed.
(c)That for a period of two years after his probation is complete, [Janklow] promptly report to the Secretary of the Disciplinary Board any moving violations of traffic laws, and the Disciplinary Board make a determination of whether to recommend [Janklow's] license be again suspended or other discipline imposed.
[¶ 7.] "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." In re Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d 865, 874 (citing In re Arendt, 2004 SD 83, ¶ 12, 684 N.W.2d 79, 81). However, this Court does not defer to a recommended sanction. Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d at 874 (citing In re Discipline of Laprath, 2003 SD 114, ¶ 41, 670 N.W.2d 41, 55). "`The final determination for the appropriate discipline of a member of the State Bar rests firmly with the wisdom of this Court.'" Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d at 874 (quoting Matter of Discipline of Wehde, 517 N.W.2d 132, 133 (S.D. 1994)).
[¶ 8.] Article V, Section 12 of the South Dakota Constitution places an affirmative duty on this Court to "govern terms of courts, admission to the bar, and discipline of members of the bar." SDCL 16-19-31 further defines this Court's constitutional regulatory relationship with the State Bar:
The 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. It is the duty of every recipient of that privilege to conduct himself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.
SDCL 16-19-37 provides, in pertinent part:
If any attorney has been convicted of a serious crime as defined in § 16-19-36, the Supreme Court shall enter an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.
[¶ 9.] A "serious crime" is defined as:
any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a serious crime.
SDCL 16-19-36. Janklow was convicted of second degree manslaughter, a Class 4 felony which is a "serious crime" under SDCL 16-19-36. Under the provisions of SDCL 16-19-39, the sole issue to be determined is the extent of the final discipline to be imposed.
[¶ 10.] The disciplinary options available to this Court include private reprimand, public censure, placement on probationary status, suspension for up to three years and disbarment. 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 Ortner, 2005 SD 83, ¶ 36, 699 N.W.2d at 877 (citing In re Discipline of Eicher, 2003 SD 40, ¶ 47, 661 N.W.2d 354, 369).1
[¶ 11.] The two goals of disciplinary proceedings are: "1) the protection of the public from further fraudulent, unethical or incompetent activities involving this attorney; and 2) the preservation of the image and integrity of the attorneys, the bar association and the legal profession as a whole." Matter of Discipline of Simpson, 467 N.W.2d 921, 921-22 (S.D. 1991). "The real and vital issue to be determined is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law." Id. at 922.
[¶ 12.] The first and primary goal of attorney discipline is to protect the public from further fraudulent, unethical or incompetent activities. This Court does not look only at the conviction, but must consider the circumstances surrounding the conviction. Janklow was convicted of second degree manslaughter which is defined as "[a]ny reckless killing of one human being, including an unborn child, by the act or procurement of another which under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide[.]" SDCL 22-16-20. The jury found that Janklow acted recklessly when it convicted him of second degree manslaughter. He was not charged with or convicted of a felony involving an intentional act. The distinction is significant. "Reckless is a lesser degree of culpability or mental state than intentional." State v. Giroux, 2004 SD 24, ¶ 14, 676 N.W.2d 139, 144. This Court has previously identified several categories of attorney conduct which warrant disbarment. Discipline of Jeffries, 500 N.W.2d at 223. "The first and historically the most important, is `when it is clear that the protection of society requires such action[.]'" Id. (citation omitted) (alteration in original). Generally, it is appropriate to disbar attorneys who are convicted of a serious crime as defined by SDCL which results in harm to clients or others. Id. Often these felony convictions are for crimes involving moral turpitude. Id. "To summarize, attorney conduct involving moral turpitude and/or dishonesty, fraud, deceit or misrepresentation, which harms, or is likely to harm the public, usually warrants disbarring the attorney involved." Id. at 224.
[¶ 13.] This case is distinguishable...
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