Petition of Reutter

• Decision Date: 27 May 1993
• Docket Number: No. 18218,18218
• Citation: 500 N.W.2d 900
• Parties: In the Matter of the Petition of Robert REUTTER For Reinstatement to the Practice of Law.
• Court: South Dakota Supreme Court

Page 900

500 N.W.2d 900

In the Matter of the Petition of Robert REUTTER For Reinstatement to the Practice of Law.

No. 18218.

Supreme Court of South Dakota.

Argued March 17, 1993.

Decided May 27, 1993.

R. James Zieser, Tyndall, for Disciplinary Bd.

Wally Eklund, Johnson, Eklund and Abourezk, Gregory, for petitioner Reutter.

SABERS, Justice.

In March of 1984, Robert Reutter (Reutter) was convicted of two counts of aiding and abetting the distribution of cocaine and one count of conspiracy to distribute cocaine. As a result, the South Dakota Supreme Court disbarred Reutter from the practice of law on December 31, 1985. In re Discipline of Reutter, 379 N.W.2d 315 (S.D.1985).

The United States Court of Appeals for the Eighth Circuit reversed the District Court's dismissal of Reutter's petition for habeas relief on November 2, 1989 and ordered the State of South Dakota to retry Reutter. Reutter v. Solem, 888 F.2d 578 (8th Cir.1989). The State of South Dakota chose not to prosecute Reutter on felony counts a second time and Reutter pled guilty to a misdemeanor of possessing drug paraphernalia.

On November 30, 1992, Reutter ¹ filed a Petition for Reinstatement with the Disciplinary Board of the State Bar of South Dakota (Board). ² SDCL 16-19-84. Following a hearing on December 18, 1992, the Board filed its findings of fact and recommendation. ³ SDCL 16-19-86. The Board's findings include the following:

(1) Reutter admitted to using and possessing cocaine on three occasions during the year 1982, on one occasion hallucinogenic mushrooms during the year 1984, and marijuana six to twelve times over a period of fifteen to twenty years. That said admissions constitute four felonies and several misdemeanors.

(2) Reutter does not consider himself a felon even in light of the aforementioned admissions of felonious conduct.

(3) David Trygstad testified that Reutter used cocaine on two occasions in addition to those testified to by Reutter and that Trygstad's testimony was true and in direct conflict with the testimony of Reutter regarding his use of cocaine.

The issue on reinstatement is whether Reutter is fit to resume the practice of law. As stated in Trygstad, "we must answer the question, 'Can [Reutter] be held out to the public as a person morally fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and officer of the court?' " In re Reinstatement of Trygstad, 435 N.W.2d 723, 724 (S.D.1989) (citing In re Discipline of Dana, 415 N.W.2d 818, 823 (S.D.1987); SDCL 16-19-31). ⁴

The burden of proof in a petition for reinstatement is upon Reutter to "demonstrat[e] by clear and convincing evidence that he has the moral qualifications, competency and learning in law required for admission to practice law in this state and that his resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest." SDCL 16-19-84. "The mere formal proof of good character required upon an ordinary application of admission to the bar is not sufficient. The proof must be persuasive enough to overcome the court's former adverse judgment on the applicant's character." Egan, 38 S.D. at 463-64, 161 N.W. at 1003 (citation omitted).

The Board found that:

(1) Reutter failed to appreciate that his prior drug usage was a course of conduct that was prohibited by law and the rules of this profession applicable to him and seemed unwilling to acknowledge that his prior drug use was illegal and violated the rules of professional conduct applicable to him.

(2) Reutter failed to demonstrate by clear and convincing evidence that his moral character is such that he can be held out to the public as a person morally fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and officer of the court.

(3) Reutter failed to demonstrate to the satisfaction of the Board by clear and convincing evidence that he has the moral qualifications required for admission to the practice of law in this State due to his lack of candor with reference to usage of controlled drugs and substances in the past.

(4) The resumption of practice of law by Reutter would be detrimental to the integrity and the standing of the Bar as well as the administration of justice and subversive to the public interest.

The Board recommended that Reutter not be reinstated to the practice of law. While we are not bound to follow the recommendation of the Board, "we are required to give the recommendation careful consideration." Trygstad, 435 N.W.2d at 724 (citing In re Reinstatement of Husby, 426 N.W.2d 27 (S.D.1988)).

As this court stated in Petition of Morrison in 1922, "[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." In re Petition of Morrison, 45 S.D. 123, 126, 186 N.W. 556, 557 (1922). This court has cited Morrison with approval throughout the years and it clearly remains the philosophy of this court today. See Trygstad, 435 N.W.2d at 724.

According to Reutter's argument, it appears that he believes because the conviction upon which his disbarment was based has now been reversed, he is entitled to reinstatement. In advancing this argument, Reutter ignores his conduct constituting felonious possession and use of illegal drugs on six occasions. We find the words of the Minnesota Supreme Court in In re Reinstatement of Reutter persuasive.

While a reversal of the attorney's conviction may annul the initial basis for the disciplinary action, the reversal itself neither prompts an automatic reinstatement nor forecloses the possibility of further disciplinary action. Even when presented with the compelling circumstances of an attorney who has been exonerated by acquittal, the court has not hesitated to impose discipline for the same conduct acquitted upon by a jury. Similarly, in the wake of the reversal of a conviction, this court and the ... Board remain free to examine the entire record of the attorney's conduct, including the allegations underlying the original criminal charges and conviction, to determine whether disciplinary action is otherwise warranted. Regardless of whether further disciplinary action is pursued, this court must still determine the individual attorney's moral fitness to practice law.

Reutter, 474 N.W.2d at 345-46 (emphasis added) (citations omitted).

Reutter argues that "drug usage has led to suspension" but not "disbarment." While we have suspended attorneys from the practice of law for conduct constituting felonious use of illegal substances, see In re Discipline of Jeffries, 500 N.W.2d 220 at 226 (S.D.1993); In re Discipline of Johnson, 500 N.W.2d 215 at 217 (S.D.1993), these cases are distinguishable. ⁵ In both Jeffries and Johnson, the attorneys subject to discipline divulged all instances of drug usage and were found credible by the Board.

This Board found that Reutter did not consistently appreciate and acknowledge his prior drug usage and that he had been less than candid. ⁶ While Reutter at times admitted to the possession and use of illegal substances which would constitute four felonies and several misdemeanors, the Board found the testimony of Trygstad that Reutter used cocaine on two occasions in addition to those Reutter testified to, "true and in direct conflict" with the testimony of Reutter. The burden is upon Reutter to demonstrate that he has the moral qualifications required for reinstatement. It is not upon the Board to prove guilt of distribution and usage beyond a reasonable doubt. The Board found Reutter's testimony unbelievable, therefore, he has failed to meet his burden.

This court, in looking behind and beyond the convictions and reversal, see Reutter, 474 N.W.2d at 346, finds that Reutter cannot "be held out to the public as a person morally fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and officer of the court[.]" Trygstad, 435 N.W.2d at 724 (citations omitted). The findings of the Board are sufficient to substantiate their recommendation that Reutter be denied readmission. The findings of the Board are affirmed and the Petition for Reinstatement is denied. In re Petition of Chamley, 349 N.W.2d 56, 58 (S.D.1984).

MILLER, C.J., and WUEST, J., concur.

AMUNDSON, J., concurs specially.

HENDERSON, J., dissents.

AMUNDSON, Justice (concurring specially).

Reutter has obviously presented numerous reasons why his petition for reinstatement should be granted: (1) His convictions have been reversed; (2) compliance with the terms and conditions for reinstatement in the State of Minnesota, In re Reutter, 474 N.W.2d 343, 346 (Minn.1991); (3) work as a legal assistant with the South Dakota law firm representing him in this matter; and (4) community support for his reinstatement.

On the other hand, there is a troubling part of Reutter's history as reflected in the previous writings of this court that causes this Justice to hesitate in granting this petition. There is no question that in Reutter v. Solem, 888 F.2d 578 (8th Cir.1989), the court held that Reutter had not gotten a fair trial because the prosecutors failed to disclose information regarding their star witness--Trygstad's hearing for commutation of his sentence. This case does not discuss or infer that the testimony of any other witness in the trial was tainted or unreliable. In Reutter, the Minnesota court stated:

Immediate reinstatement on the heels of a reversal, however, ignores that a reversal, other than for evidentiary insufficiency, implies little as to the actual occurrence of the alleged underlying events.

... Similarly, in...