Tuesday, February 23, 2021

Bar Communication Not "An Unsolicited Invitation To Join A Book Club"

The South Dakota Supreme Court concluded that an attorney's one time practice after suspended merited a short extension of the prior suspension

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.

The court previously had rejected a proposed public censure in favor of suspension

Three months after the effective date of Swier’s initial suspension for the subsequent violation, the Court entered its order suspending him from practicing law indefinitely, and suspending him until further order of the Court, for practicing law under suspension and conducting himself as a legal assistant without Court approval. We must now consider the appropriate discipline for a suspended attorney who violates an Order of Suspension.

But prior comparable cases were worse

In the case before us, Swier’s ethical lapses, while serious and disturbing, are not as egregious as those in Hosford I, Hosford II, Reynolds, or Ogilvie II. Swier admitted to the allegations in the initial proceeding. Swier, 2020 S.D. 7, ¶ 1, 939 N.W.2d at 857. In this proceeding, he admitted to participating in the email thread, but attempted to justify it as inconsequential and clerical. Like Hosford, Swier has been loath to accept responsibility for his actions and has done so “only through capitulation.” Id. ¶ 83, 939 N.W.2d at 873. Unlike Hosford, Reynolds, and Ogilvie, Swier’s violation of the Order of Suspension was an isolated incident and not a seamless continuation of the practice of law.

The court added 60 days to the prior one-year suspension. (Mike Frisch)


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