In re Reciprocal Discipline of Rokahr

• Decision Date: 19 May 2004
• Docket Number: No. 23222.,23222.
• Citation: 681 N.W.2d 100,2004 SD 66
• Parties: In the Matter of the RECIPROCAL DISCIPLINE OF Alice L. ROKAHR as an attorney-at-law.
• Court: South Dakota Supreme Court

681 N.W.2d 100

2004 SD 66

In the Matter of the RECIPROCAL DISCIPLINE OF Alice L. ROKAHR as an attorney-at-law.

No. 23222.

Supreme Court of South Dakota.

Considered on April 15, 2004.

Decided May 19, 2004.

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

Alice L. Rokahr, Yankton, South Dakota, pro se.

GILBERTSON, Chief Justice.

[¶ 1.] Alice L. Rokahr, an attorney-at-law licensed in South Dakota, has filed notice with this Court as required by SDCL 16-19-71 that she was subjected to professional disciplinary action in another jurisdiction. For the reasons stated herein and because this matter was referred to, and previously determined by the South Dakota Disciplinary Board, we decline to impose reciprocal discipline. We instead conduct our own independent review of the disciplinary record.

BACKGROUND

[¶ 2.] Rokahr is a Yankton, South Dakota attorney admitted to the practice of law in both South Dakota and Nebraska. Rokahr represented Clara Heine and her son Allen Heine. Rokahr represented Allen in a number of different capacities including individually, as the controlling partner of the Heine Feedlot Company and as a trustee for three separate trusts created by his father for the benefit of Allen's two nieces and one nephew.¹ These three trusts would be terminated at the option of the beneficiaries at the age of twenty-one or automatically at the age of twenty-five. The trusts were at least partially funded with various parcels of land in South Dakota and Nebraska.

[¶ 3.] Certain land deeded in trust was operated by the Heine Feedlot Company and the rental payments were deposited in trust for the beneficiaries. At various times Rokahr drafted documents concerning the real property held in trust. Particularly relevant here is an easement Rokahr drafted that provided access to property held in trust for Allen's children. That easement provided access over and across land held in trust for Allen's nieces and nephew, of which he was trustee on their behalf. The easement was signed by Allen and his wife Marilyn in their capacity as trustees. According to Rokahr's testimony, the easement was dated and notarized by Rokahr on September 1, 1994, but was not recorded with the Yankton County Register of Deeds until March 6, 1995. These dates are particularly important because by March 1995 two of the trusts had terminated and Allen had no legal authority to act on those beneficiaries' behalf in executing this easement encumbering the property. Arlene Heine, the party who initiated the complaint against Rokahr, alleged that Rokahr backdated the document she notarized so that an easement could be obtained which benefited her client, Allen.

[¶ 4.] A Nebraska disciplinary referee found that there was clear and convincing evidence to support the allegation of misconduct. The Nebraska Supreme Court affirmed in part concerning the easement issue. The evidence supporting that finding was as follows: Rokahr's appointment calendar makes no mention of an appointment to have this document signed in September 1994. On February 22, 1995, Rokahr sent a letter to Allen indicating "Please find enclosed a copy of the Perpetual Easement ... on the parcel of land in Yankton County ... If this is acceptable, please let me know and we can make arrangements for its signing." Finally, Rokahr billed Allen for the preparation and signing of an easement on March 15, 1995.

[¶ 5.] The evidence supporting Rokahr's contention that she did not backdate the easement was her sworn testimony, Allen and Marilyn's sworn testimony and Rokahr's explanation in the Nebraska proceeding and before the South Dakota Disciplinary Board that:

• She did not specifically recall when the easement was signed or why it was not filed until March 6, 1995.

• She suspected that she found a draft of the easement and not realizing it had already been signed, forwarded it to Allen under the previously quoted cover letter to arrange for its signing. Thereafter, when she discovered her mistake, it was recorded.

• Rokahr indicated that she had poor billing practices and she probably didn't bill for the document until she discovered the draft she sent to Allen in February 1995.

Nebraska Disciplinary History

[¶ 6.] A Nebraska disciplinary referee found by clear and convincing evidence that Rokahr had committed three ethical violations: (1) backdating the aforementioned easement; (2) colluding with Allen in backdating and filing the easement; and, (3) engaging in delay, deceit, and deception in the delivery of certain deeds to the beneficiaries. The referee also rejected Rokahr's testimony as not credible. The referee recommended Rokahr be suspended from the practice of law for six months. The Nebraska Supreme Court determined that clear and convincing evidence existed to support the findings of the referee that Rokahr backdated the easement and colluded with Allen in backdating and filing the easement. Counsel for Discipline of the Nebraska Supreme Court v. Rokahr, 267 Neb. 436, 675 N.W.2d 117, 128 (2004). The Nebraska Supreme Court rejected the referee's finding that Rokahr engaged in delay, deceit, and deception in the delivery of deeds to the beneficiaries. Id. at 130. The Nebraska Supreme Court ultimately suspended Rokahr from the practice of law for one year.² Id. at 131.

South Dakota Discipline

[¶ 7.] Arlene Heine submitted a complaint against Rokahr to the South Dakota State Bar and later to this Court. The complaints were referred to the South Dakota Disciplinary Board. Thereafter, Rokahr submitted a self-report to the South Dakota Disciplinary Board of the pending Nebraska matter and a South Dakota investigation conducted by the Board ensued. The South Dakota Disciplinary Board consists of seven members, that being six members of the State Bar and one lay member. See SDCL 16-19-24. In addition, the Board retains its own legal counsel.

[¶ 8.] Arlene Heine, as the complainant, was informed of the pending investigation in South Dakota and invited to submit any and all information to the South Dakota Disciplinary Board. It appears from the record that information gathered by the Nebraska disciplinary prosecutor was forwarded to the South Dakota Disciplinary Board. On December 12, 2002, Rokahr and her counsel appeared before the South Dakota Disciplinary Board. Rokahr was questioned by counsel for the Disciplinary Board and by the members individually. Rokahr maintained that the easement was not backdated though she conceded that during the course of her representation she failed to recognize conflicts of interest as they developed and too readily followed the desire of her client. Following that hearing, the Disciplinary Board unanimously entered the following admonishment:

The Disciplinary Board of the State of South Dakota has considered the complaint of Arlene Heine, together with the testimony presented at the hearing and the submissions received in connection with that complaint. This letter shall constitute the Board's findings.

The Board finds that you acceded to Allen's directions/ instruction too readily and that you failed to exercise independent professional judgment. A reality of the practice of law is that, on occasion, a lawyer must withdraw from representation of a client when the lawyer finds herself unable to exercise independent professional judgment or when the client refuses to accept the lawyer's advice. In addition, the Board finds that conflicts of interest did exist as between the beneficiaries of the trusts established for the grandchildren as became more apparent with the passage of time. You failed to recognize these conflicts in a timely fashion. The Board finds that these violations were unintentional and unlikely to be repeated. Therefore, the Board finds that the appropriate disposition of the complaint is an admonition to exercise independent professional judgment and to be more sensitive to conflicts arising during the course of representation.

With the above stated admonition, this matter is concluded.

The Board further informed the complainant that "the Board found no evidence that Ms. Rokahr intentionally violated any rules of Professional Conduct." As previously mentioned, the South Dakota Disciplinary Board's hearing occurred before the Nebraska referee's final report or any decision by the Nebraska Supreme Court.

[¶ 9.] Thereafter, upon the conclusion of the Nebraska disciplinary proceeding, Rokahr sent notice to this Court as required by SDCL 16-19-71 advising of her discipline in Nebraska. Rokahr has requested that we deviate from imposing reciprocal discipline in South Dakota. The South Dakota Disciplinary Board has also requested that we not impose reciprocal discipline under these circumstances. Complainant maintains that the South Dakota discipline imposed was inadequate and has requested the imposition of reciprocal discipline.

ANALYSIS

ISSUE ONE

[¶ 10.] Whether reciprocal discipline should be imposed as a result of Rokahr's Nebraska discipline even though an independent South Dakota disciplinary proceeding has already occurred.

[¶ 11.] SDCL 16-19-71 requires an attorney disciplined in another jurisdiction to promptly inform this Court of such action. SDCL 16-19-71. "Except as provided in SDCL 16-19-74, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state." SDCL 16-19-71 (emphasis added). SDCL 16-19-74 provides:

[T]he Supreme Court shall impose the identical discipline unless the board or the attorney demonstrates, or the Court finds that upon the facts of the record upon which the discipline is predicated it clearly appears;

(1) That the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) That there was such an infirmity of proof establishing the misconduct as to give rise to

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