In re Discipline of Ortner, 23548.

• Decision Date: 29 June 2005
• Docket Number: No. 23548.,23548.
• Citation: 2005 SD 83,699 N.W.2d 865
• Parties: In the Matter of the DISCIPLINE OF Michael P. ORTNER, as an Attorney at Law.
• Court: South Dakota Supreme Court

699 N.W.2d 865

2005 SD 83

In the Matter of the DISCIPLINE OF Michael P. ORTNER, as an Attorney at Law.

No. 23548.

Supreme Court of South Dakota.

Argued May 24, 2005.

Decided June 29, 2005.

Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, for Michael P. Ortner.

Robert B. Frieberg, Beresford, SD, for Disciplinary Board.

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 generated a complaint against Michael P. Ortner. Following its investigation and hearing in the matter, the Disciplinary Board filed findings of fact, conclusions of law, and a formal accusation against Ortner. This Board recommended that Ortner be publicly censured for his violation of the Rules of Professional Conduct. Ortner admitted the allegations in the formal accusation that followed. When an accused attorney admits the allegations, this Court "shall proceed to render such judgment as the case requires." SDCL 16-19-68.

GENERAL BACKGROUND

[¶ 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.

FACTS

[¶ 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 advised him that he could simply tear up any checks he received for child support. David discussed the proposal with Jami who, according to Ortner, definitely wanted something in writing.

[¶ 10.] Ortner revised the stipulation to include a provision for child support:

[Jami] is required to pay child support for the minor children in the total amount of $250.00 per month, except during those summer months when she has the children for visitation. During those summer months, [David] shall pay $250.00 per month for support of the minor children. Said support shall continue until the younger child graduates from high school or turns 19 years of age, whichever is earlier.

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:

It is hereby stipulated and agreed by and between David R. Reaser, the Plaintiff, and Jami D. Reaser, the Defendant, subject to the approval of the above-named Court, that in the event the Court does see fit to grant [David] hereto a dissolution as prayed for in his Complaint, the same shall be upon the terms and conditions as set forth in the Stipulation and Agreement, except that the parties further privately stipulate and agree between themselves as follows:

I.

That [David] agrees that he will not seek to collect the Two Hundred Fifty Dollars ($250.00) per month child support ordered to be paid by [Jami].

II.

[Jami] stipulates and agrees that during those times when she has custody of the minor children for visitation purposes in the summer for one month or longer that she will not seek to collect child support from [David].

III.

Both parties stipulate and agree and contract as set forth above even though the Court itself has ordered payment of child support. The basis of the agreement for the dissolution of the marriage was that no child support be paid and this agreement carries out that earlier agreement reached by the parties.

[¶ 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 interim order of support and eliminate the arrearages were heard by Judge John J. Delaney. Judge Delaney learned about the private contractual agreement and expressed serious concerns about the deception created by it. During this proceeding Ortner filed an "Affidavit Regarding Motion to Deny Claim for Arrears" which was dated April 1, 2003.

[¶ 15.] Ortner's affidavit states:

Comes now Michael Ortner, and for his Affidavit states and affirms as follows:

1. That Affiant is an attorney in practice in Hot Springs;

2. That Affiant has been active in a private general practice of law in Hot Springs for over twenty years;

3. That in the course of his practice Affiant has represented numerous clients in divorce and family law matters;

4. That in the early part of 1999 he spoke with David Reaser about preparing pleadings for divorce;

5. That the Stipulation and Divorce Decree were prepared by Affiant following his conversations with Mr. Reaser;

6. That Mr. Reaser instructed Affiant that the documents were to be prepared to reflect that no ongoing child support would be required to be paid by his ex-wife, now known as Jami Twiss;

7. That Affiant initially submitted the Stipulation and Decree of Divorce for review by the Court with no requirement for payment of ongoing child support;

8. That after a conference with the Court the Stipulation and Decree of Divorce were modified to include a child support provision;

9. That prior to submitting the second Decree to the Court Affiant drafted a document of private agreement between Mr. Reaser and Ms. Twiss;

10. That under the terms of that private agreement, Ms. Twiss was to have no duty to pay ongoing support despite the language of the Divorce Decree;

11. That it was Affiant's understanding that one of the reasons the parties had entered into such an agreement for no payment of support was that Ms. Twiss had agreed not to contest custody of the two minor children, and Ms. Twiss had also agreed not to seek any alimony or other property settlement despite the fact that the couple had been married for over thirteen years;

12. That after preparing the agreement of nonsupport, the parties signed it in Affiant's office, [Ms. Twiss] on March 29, 1999 and [Mr. Reaser] on March 30, 1999;

13. Affiant informed [Ms. Twiss] that even though the private agreement should be binding on the parties themselves it would not be binding upon the Court;

14. The parties also requested that Affiant retain the original of the signed Private Contractual Agreement in his office where it still remains;

15. That after the parties entered into this written agreement the Decree of Divorce was subsequently signed by the Circuit Court Judge.

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...