Petition of Pier, 19850

• Decision Date: 05 March 1997
• Docket Number: No. 19850,19850
• Citation: 561 N.W.2d 297,1997 SD 23
• Parties: In the Matter of the Petition of Steven L. PIER for Reinstatement to the Practice of Law.
• Court: South Dakota Supreme Court

Page 297

561 N.W.2d 297

1997 SD 23

In the Matter of the Petition of Steven L. PIER for Reinstatement to the Practice of Law.

No. 19850.

Supreme Court of South Dakota.

Argued Dec. 4, 1996.

Decided March 5, 1997.

Laurence J. Zastrow, Board Counsel, Pierre, for Disciplinary Board.

John Simko of Woods, Fuller, Shultz & Smith, Sioux Falls, for petitioner.

KONENKAMP, Justice.

¶1 This case requires us to decide what exceptional requirements a lawyer disbarred for theft must demonstrate to be readmitted to practice. Steven L. Pier was disbarred by order of this Court on July 10, 1991. Matter of Pier, 472 N.W.2d 916 (S.D.1991). He now applies for reinstatement pursuant to SDCL 16-19-84. Considering his payment of full restitution, his moral and professional rehabilitation, and the favorable recommendation of the State Bar Disciplinary Board, we grant a conditional reinstatement.

Background

¶2 Pier graduated from the University of South Dakota School of Law and was admitted to the bar by virtue of the diploma privilege in 1981. He moved to Yankton and worked there as a deputy state's attorney and in private practice through 1989, when the circumstances resulting in his disbarment transpired. In that year, Olga Anderson hired Pier to probate her husband's estate. As the particulars are chronicled in Pier I, 472 N.W.2d at 916-17, we note here only that Pier cashed two of Anderson's certificates of deposit, deposited the $46,079.14 in his own checking account, and, in the succeeding four months, spent it all for personal benefit. In the fall of 1989 and the spring of 1990, Pier twice lied to both Anderson and a Yankton banker about the location of the money, suggesting it was deposited with a local investment firm or had been the subject of some confusion at the bank. In September, however, Pier admitted he had taken the funds and, shortly afterwards, borrowed from his parents to reimburse Anderson $50,760.75 for the money taken plus interest.

¶3 Pier admitted his wrongdoing to the Disciplinary Board, but in mitigation he revealed severe stress from a disintegrating marriage and financial pressures in a new law partnership. His marriage later ended in divorce. Although we dislike exposing material detailing a person's private anguish, in view of his request for reinstatement, it is important to understand what stresses accompanied his ethical lapses. In the fall of 1988, his wife lost her job, so in 1989 they were trying to live on his income alone. Both Pier and his wife were taking prescription medication for depression as their deteriorating marital problems created increasing strain. During marriage counseling, Pier learned for the first time his wife had been in a relationship with another man. Pier and his wife separated, but he was still trying to save his marriage when the events leading to his disbarment occurred. The Disciplinary Board found Pier had misappropriated client funds in violation of Disciplinary Rule 1.15, Safekeeping Property, and Rule 8.4, Misconduct, and recommended disbarment.

¶4 Finding the misappropriation inexcusable, this Court accepted the Board's recommendation, stating, "We are convinced that the public must be protected from future acts of this nature, and, thus, we do not hesitate to rule that disbarment is justified in this case." Pier I, 472 N.W.2d at 917. Though Pier avows he always intended to return the money before the theft was discovered, "such intent, if it existed, in no degree deprived [his] acts of their unprofessional and wrongful character." Matter of Kaas, 39 S.D. 4, 6, 162 N.W. 370, 370 (1917).

¶5 No criminal proceedings were ever brought against Pier. Mrs. Anderson, the victim, not only hoped to spare him professional discipline, but also criminal liability. Yet the Disciplinary Board noted his actions were chargeable under SDCL 22-30A-10, Embezzlement of Property Received in Trust, and SDCL 22-30A-17(1), Grand Theft. A letter in the disciplinary file from an assistant attorney general specifies that Anderson's reluctance to testify and the ongoing bar discipline process contributed to a decision not to charge him. Despite how we might personally discern the prosecutive merits, as tribunals sworn to uphold due process of law, we cannot impute upon a person's record a felony never charged. Nonetheless, stealing client funds is grave misconduct, even if no criminal conviction results. See Matter of Barton, 291 Md. 61, 432 A.2d 1335, 1337 (1981).

¶6 After hearing his petition for reinstatement pursuant to SDCL 16-19-83, -84, & -87, ¹ the Disciplinary Board found Pier established by clear and convincing evidence he should be reinstated. It recommended the following conditions: (1) that he pass the bar exam, including the ethics portion; and (2) that he be supervised for two years by a member of the South Dakota Bar approved by the Court. ² Finding he had "led an exemplary life since his disbarment," the Board accepted Pier's explanation his misconduct was aberrant and out of character, and thus was unlikely to reoccur.

Decision

¶7 We are not bound to accept the Disciplinary Board's recommendation, although we give it "careful consideration." Petition of Reutter, 500 N.W.2d 900, 902 (S.D.1993); Petition of Draeger, 463 N.W.2d 346, 347 (S.D.1990); Petition of Husby, 426 N.W.2d 27, 28 (S.D.1988). To decide whether to follow the Board's proposal, we must thoroughly examine the particular merits of this case, as well as weigh the overall propriety of reinstating a lawyer who stole money from a client, "one of the most serious acts of lawyer misconduct ... [which] strikes at the heart of the lawyer-client relationship." Pier I, 472 N.W.2d at 917. In the past, we have considered a handful of cases of lawyers who have misappropriated client funds. See, e.g., Matter of Coacher, 438 N.W.2d 549 (S.D.1989)(disbarring a lawyer who pled nolo contendere to grand theft by embezzlement pursuant to SDCL 22-30A-10 & -17 for stealing money from clients); Kaas, 39 S.D. at 7, 162 N.W. at 371 (disbarring a lawyer who stole money from clients). We have yet to resolve the question presented to us today: Should a lawyer who stole over $45,000 of a client's money be considered for reinstatement, and, if so, under what guidelines?

¶8 In grappling with the competing interests involved, we first reaffirm the purpose of the disciplinary process--to protect the public, not to punish the lawyer. Matter of Simpson, 467 N.W.2d 921, 921-22 (S.D.1991); Matter of Stanton, 446 N.W.2d 33, 42 (S.D.1989); Matter of Strange, 366 N.W.2d 495, 497 (S.D.1985). On the other hand, disbarment is no trivial occurrence. "Disbarment is warranted when it is clear that the protection of society requires such action or where the maintenance of respect for courts and judges or the respectability of the legal profession itself demands such action." Matter of Crabb, 416 N.W.2d 258, 259 (S.D.1987). Preserving trust in the legal profession is essential. The practice of law imposes a formidable responsibility upon lawyers to protect their clients' "property, freedom, and at times their very lives." Petition of Chamley, 349 N.W.2d 56, 58 (S.D.1984). Lawyers who misappropriate client funds for personal benefit violate an elemental duty and are most fittingly disbarred. ABA Standards for Imposing Lawyer Sanctions, Rule 4.1 (1986).

¶9

Mindful of these principles, "[a] court should be slow to disbar, but it should be even slower to reinstate; it should endeavor to make certain that it does not again put into the hands of an unworthy petitioner that almost unlimited opportunity to inflict wrongs upon society possessed by a practicing lawyer." Matter of Morrison, 45 S.D. 123, 126, 186 N.W. 556, 557 (1922); see Petition of Reutter, 500 N.W.2d at 902 (noting that Morrison remains the philosophy of the Court today). Therefore, a petitioner for reinstatement must prove, clearly and convincingly, good character and moral fitness to be trusted again. Petition of Trygstad, 435 N.W.2d 723, 724 (S.D.1989), aff'd on reh'g, 447 N.W.2d 360 (S.D.1989); Petition of Reutter, 500 N.W.2d at 901. Such a showing must "be persuasive enough to overcome the court's former adverse judgment on the appellant's character." Matter of Egan, 38 S.D. 458, 463-64, 161 N.W. 1003, 1006 (1917). Good character sufficient for initial admission to the bar is inadequate at this stage. Id.; Petition of Reutter, 500 N.W.2d at 901. Surely, the more culpable the misconduct, the greater the burden to prove worthiness for reinstatement. See Petition of Murray, 316 Md. 303, 558 A.2d 710, 711 (1989). Yet unless we hold disbarment is final and unalterable, a position never taken previously, we must be open to the possibility a disbarred lawyer can so thoroughly reform that reinstatement becomes fair and reasonable.

¶10 In our prior reinstatement decisions, we have evaluated a petitioner's rehabilitation with several general considerations in mind. For example, in Draeger we discussed reliability of character, progress in overcoming problems, and moral fitness to practice. 463 N.W.2d at 347. We have also examined basic competence in all areas of the law, Petition of Voorhees, 403 N.W.2d 738, 739 (S.D.1987), the effect reinstatement would have on the integrity of the bar, Petition of Hopewell, 529 N.W.2d 578, 582 (S.D.1995), and the gravity of the conduct prompting disbarment, Trygstad, 435 N.W.2d at 725. In the general area of discipline for misappropriating client funds, we have also remarked on the payment of restitution. See, e.g., Coacher, 438 N.W.2d at 549. We have yet to formulate, however, comprehensive and exacting criteria to apply in determining whether to reinstate a disbarred lawyer who misappropriated client funds.

¶11 Several sources are helpful in framing suitable guidelines. The ABA Standards for Imposing Lawyer Sanctions, for example, note that while the presumption should be against reinstatement, a disbarred lawyer who has proven the following by...