In re Swier
| Decision Date | 17 February 2021 |
| Docket Number | #29156 |
| Citation | 955 N.W.2d 753 |
| Parties | In the MATTER OF the DISCIPLINE OF Scott R. SWIER as an Attorney at Law |
| Court | South Dakota Supreme Court |
THOMAS H. FRIEBERG, ROBERT B. FRIEBERG of State Bar of South Dakota, Beresford, South Dakota, Attorneys for Disciplinary Board.
JEFFERY G. HURD of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for respondent.
[¶1.] On February 19, 2020, this Court suspended Scott R. Swier from the practice of law for a period of one year and imposed conditions that Swier had to meet before seeking reinstatement. Matter of Discipline of Swier , 2020 S.D. 7, ¶ 85, 939 N.W.2d 855, 874. The Court amended its order of suspension on June 24, 2020. The Court suspended Swier indefinitely after determining that he violated the Court's Order of Suspension "by practicing law while suspended and conducting himself as a legal assistant without the approval of this court, SDCL 16-18-34.4." The matter was remanded to the State Bar's Disciplinary Board to conduct a full investigation of Swier and the Swier Law Firm to determine if Swier or members of the Swier Law Firm committed additional violations of the Court's Order of Suspension.
[¶2.] The Board filed its report with the Court. The Board reported that Swier's conduct that triggered the Amended Order of Suspension did occur but was an isolated event and that the attorney members of Swier Law Firm did not assist or condone any violation of the Court's order suspending Swier from the practice of law. The Board recommended that the Court take "such action as it deems appropriate."
[¶3.] The facts leading to Swier's initial suspension are set forth in Swier , 2020 S.D. 7, 939 N.W.2d 855. Shortly after this Court suspended Swier, a lawyer from May, Adam, Gerdes, and Thompson, LLP, (May Adam) notified the Disciplinary Board that Swier answered an email sent from a May Adam attorney to Michael Henderson and Brooke Swier Schloss, Swier Law Firm attorneys. In the email, Swier informed the May Adam attorney that "[o]ur client has not yet given us permission to waive FF & CL."
[¶4.] As a result, the Court entered an Order to Show Cause why Swier should not be held in contempt of its order suspending him, SDCL 16-19-82, and why his apparent violation of SDCL 16-19-33(2) should not result in the extension of his period of suspension or the revocation of his license to practice law. See SDCL 16-19-22. In response, Swier argued that the email was inconsequential; he merely performed the clerical task of passing a message from Swier Law Firm attorneys to a May Adam attorney. He claimed the email did not constitute the practice of law or violate the Order of Suspension.
[¶5.] This Court concluded otherwise and filed an Amended Order of Suspension and Order of Remand. This order provided, in part:
[¶6.] The Disciplinary Board investigated and filed its report and its recommendation to the Court. The Disciplinary Board interviewed Swier Law Firm attorneys and staff. It also subpoenaed, received, and reviewed Scott R. Swier's emails and Swier Law Firm's billing records, and reviewed Swier Law Firm's leases. Brooke Swier Schloss, Swier's law partner and sister, and Swier appeared before the Disciplinary Board separately, and the Disciplinary Board examined them under oath.
[¶7.] The effective date of Swier's initial one-year suspension was March 20, 2020. After that date, Brooke Swier Schloss became the sole partner of Swier Law Firm. Swier was rarely seen at Swier Law Firm locations. However, Swier remained employed by the law firm to assist in marketing, updating website articles, and writing blog posts for the firm's website. He also cleaned the office and did filing. His contact with the firm's other attorneys was limited to updating them on the status of matters and giving them background information to assist in their representation of clients. He had no direct contact with Swier Law Firm's clients. He was paid a monthly salary that was based upon the annualized base salary he received while practicing as an attorney. Swier owns the building housing Swier Law Firm. The Disciplinary Board found the rent to be reasonable.
[¶8.] After the Court's June 24, 2020 Amended Order of Suspension, Swier has not been present at Swier Law Firm's offices. He has not done any work or received compensation for marketing or other services. He has not been present or been in communication with members of the firm regarding the activities or management of Swier Law Firm. He has been pursuing other business ventures, including a construction business in North Sioux City, South Dakota, and an ice business in Avon, South Dakota.
[¶9.] According to the Disciplinary Board, the email chain that ultimately triggered the Court's Order to Show Cause and Amended Order of Suspension was an isolated event. Swier claims he acted at the request of Brooke Swier Schloss who wanted to respond quickly to an inquiry from opposing counsel but was unable to do so personally. The Disciplinary Board did not uncover any on-going pattern of violation. It also found that the attorneys of Swier Law Firm did not assist in, or condone, any violation of the Court's order suspending Swier from the practice of law.
[¶10.] Based on its investigation and findings, the Disciplinary Board recommended that the Court "take such action as it deems appropriate."
[¶11.] The South Dakota Supreme Court has the affirmative duty to "govern terms of courts, admission to the bar, and discipline of members of the bar." S.D. Const. art. V, § 12. We take this obligation seriously because "[a] license to practice law in this state is a privilege and a continuing proclamation by the Supreme Court that a licensed attorney is an officer of the Court, is fit to be entrusted with legal and judicial matters, and is able to aid in the administration of justice." SDCL 16-19-31. Each recipient privileged to receive a license to practice law has the duty to conduct himself at all times, "both professionally and personally, in conformity with the standards of conduct" imposed upon members of the bar as conditions for the privilege to practice law. Id.
[¶12.] It is essential to preserve trust in the legal profession. Petition of Pier , 1997 S.D. 23, ¶ 8, 561 N.W.2d 297, 299. A lawyer's responsibility to protect clients’ property, freedom, and at times, lives, is formidable. Matter of Chamley , 349 N.W.2d 56, 58 (S.D. 1984). "Only by providing high quality lawyering can the integrity of the legal profession remain inveterate and the confidence of the public in the Bar remain strong." Matter of Discipline of Wehde , 517 N.W.2d 132, 133 (S.D. 1994).
[¶13.] The attorney disciplinary process protects the public from further fraudulent, unethical, or incompetent activities involving a lawyer. In re Discipline of Reynolds , 2009 S.D. 9, ¶ 50, 762 N.W.2d 341, 352. It preserves the image and integrity of attorneys, the bar association, and the legal profession. Id. It also deters like conduct by other attorneys by putting the Bar on notice that such action or inaction violates the Rules of Professional Conduct. See SDCL ch. 16-18 appx. "Its purpose is not to punish the attorney." Reynolds , 2009 S.D. 9, ¶ 50, 762 N.W.2d at 352. "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." In re Discipline of Simpson , 467 N.W.2d 921, 922 (S.D. 1991).
[¶14.] As far as the discipline determination, this Court does not "defer to the Disciplinary Board's recommended sanction." Swier , 2020 S.D. 7, ¶ 56, 939 N.W.2d at 868. We make that determination de novo. The appropriate discipline for a member of the "Bar rests firmly with the wisdom of this Court." Id.
[¶15.] This Court has observed that "[h]e acts at his peril who treats a communication from the [Disciplinary Board] with the indifference accorded an unsolicited invitation to join a book club." In re Rude , 88 S.D. 416, 423, 221 N.W.2d 43, 47 (1974). Likewise, an attorney who disobeys or violates a Supreme Court order in a disciplinary proceeding acts at that attorney's peril. Grounds for discipline include "[d]isobedience to, or violation of an order of the court requiring the attorney to act or refrain from acting in a particular manner[.]" SDCL 16-19-33(2). We stress that the Rules of Professional Conduct are not cafeteria style rules; an attorney is not free to pick and choose what rules to follow or disregard the rest on a whim.
[¶16.] When disciplinary proceedings began, the Disciplinary Board recommended that public censure was appropriate in Swier's case. Swier , 2020 S.D. 7, ¶ 81, 939 N.W.2d at 873. This Court had "a low degree of confidence that the solemnity of these disciplinary proceedings and the Board's proposed sanction will, themselves, effect the lasting change necessary to protect the public."1 Id. ¶ 83, 939 N.W.2d at 873. The Court suspended Swier for one year and outlined steps that Swier must take before petitioning for reinstatement.2 Id....
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