In re Discipline of Eicher, 22523.

• Decision Date: 16 April 2003
• Docket Number: No. 22523.,22523.
• Citation: 2003 SD 40,661 N.W.2d 354
• Parties: In the Matter of the DISCIPLINE OF Benjamin J. EICHER, as an Attorney at Law.
• Court: South Dakota Supreme Court

661 N.W.2d 354

2003 SD 40

In the Matter of the DISCIPLINE OF Benjamin J. EICHER, as an Attorney at Law.

No. 22523.

Supreme Court of South Dakota.

Argued March 26, 2003.

Decided April 16, 2003.

Robert B. Frieberg, Beresford, South Dakota, for Disciplinary Board.

Ronald W. Banks of Banks, Johnson, Colbath & Kerr, Rapid City, for Eicher.

ORIGINAL PROCEEDING

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."

GENERAL BACKGROUND

[¶ 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.

KOCH COMPLAINT

[¶ 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:

Although I personally find Mr. Eicher's repeated threats and claims for sanctions to be unsupported, meritless and unprofessional, it is the personal attacks and insults hurled by Mr. Eicher at my client and me that I can not ignore. Vigorously attacking the allegations or criticizing the tactics of an opponent does not necessitate or allow the use of such blatantly offensive comments and I hope the disciplinary board will take the necessary steps to inform Mr. Eicher of the same.

[¶ 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:

• Gail's attempt to avoid any burden at all from her great bounty (it is assumed that no one would even try to argue that receiving title to $100,000 in unencumbered property without paying the giver a penny for it constitutes a "great bounty"), is shockingly greedy, to put it bluntly.

• Gail continues to not only want her pound of flesh from Shirley, but wants all of the blood associated with it.

• Gail's greed is stunningly bold.

• Then, to make certain that her fangs are fully bared for all to see, Gail hurls yet another dose of acidic bile at Shirley. Gail accuses Shirley of criminal misconduct ... Perhaps Gail plans to have Shirley arrested, and hauled from the courtroom on March 27 in shackles, too.

• Gail's arguments on these matters are so utterly fallacious, groundless, and frivolous, that they constitute plain violations of Rule 11.

• Gail's despicable greed should not be rewarded.

• Gail's ... adamant persistence in trying to make Shirley accountable, belies an active, rancid animosity against Shirley which not only defies logic but apparently knows no bounds.

[¶ 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:

The Court attempted to issue its oral bench decision on March 27 in the scant moments left on the Court's clock at that specific time. It is presumed that had the Court sufficient additional time available, a more fully described and reasonably in-depth discussion would have been made by the Court of its findings of fact and its conclusions of law. Instead, the parties were only given an extremely brief set of conclusory statements of the ultimate result. However, the "bottom line" approach presented by the Court offers little if any guidance as to the Court's (as opposed to Gail Thomas' counsel's when the Findings and Conclusions are drafted) reasoning behind the specific rulings found within the penumbra of that "bottom line." Moreover, the Court gave no reasons at all for denial of Shirley's request for sanctions under Rule 11 of the Rules of Civil Procedure, even though the statutory provisions mandate entry of specific findings and conclusions whether such sanctions are granted or denied.

In this document Eicher also lectured the trial court about his view of Koch's legal ability:

Our present system is clogged with specious claims brought by novice lawyers. It is clogged with positions which have no basis in fact or law, as if "lawyering" means to disagree with whatever the other side says. The circuit court judges see enough of this. But, the Court should be well aware that for every example played out before it in open court, are hundreds of instances "behind the scenes" which never see the inside of a court file or the courtroom.

Formerly, there was a greater amount of mentoring by older, experienced lawyers to guide novice attorneys. When the undersigned thinks of what his mentor, the late (and great) Franklin J. Wallahan would have said had the undersigned taken the positions adopted here in this case by Gail and her counsel, it is not an exaggeration to say that a long lecture in "good lawyering" would have occurred as a result. However, without mentoring and without an eye toward quality practicing, Gail and her counsel simply fire away with a blunderbuss as much buckshot as possible— even if it is improper, unmerited, groundless or just plain wrong— with the comfort of knowing that all the Court will do is reject the position. In other words, there is no real downside. But this is where Rule 11 especially was geared to not only protect the innocent opponent, but to punish the wrongdoers. Just like a child who grows up undisciplined because the parents failed to provide appropriately strict guidance, when lawyers dump their half-baked or completely uninvestigated contentions on the courtroom floor without any correction, then it's no wonder that they never learn to do things differently (i.e., correctly) next time.

[¶ 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:

Dear Deach:

I am confirming the terms of our discussion on the Bar Association matter in this case. My suggestion is that instead of having your client face an appeal from the above action if we proceed with the Bar Association contentions (i.e., mutual complaints), which will occur if I have to obtain the transcript to defend myself against your contentions and to put the matter wholly in context, we jointly approach the Bar Association as follows.

I would think a letter signed by both you and me, to the Bar Association, saying something as follows would suffice:

This is a joint letter by Dedrich Koch and Benjamin Eicher regarding a disciplinary complaint submitted by Attorney Koch against Attorney Eicher. We jointly agree that the disciplinary complaint is hereby withdrawn. On April 22, 2002 a hearing was held before Judge Kern wherein she denied relief to Attorney Koch based upon similar allegations against Attorney Eicher as those in the disciplinary complaint, as well as denying Rule 11 sanctions against Attorney Koch. Attorney Koch and Attorney Eicher have resolved their differences, personal and professional, and do not wish to involve the disciplinary board further. It is assumed that this letter will suffice to close the matter, unless different instructions are given to us.

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 submit their respective Findings of Fact, Conclusions of Law, and Judgments[.]"

CLAYBORNE COMPLAINT

[¶ 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...