Matter of Discipline of Russell

Citations: 2011 S.D. 17; 797 N.W.2d 77; 2011 SD 17; 2011 S.D. LEXIS 16; 2011 WL 1535259Docket: 25490

Court: South Dakota Supreme Court; April 20, 2011; South Dakota; State Supreme Court

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Lance Russell, an attorney in South Dakota, is facing disciplinary proceedings initiated by the Disciplinary Board of the State Bar, which recommended a public censure for his conduct. Retired Justice Robert A. Miller also supported this recommendation. In his response, Russell sought dismissal of the recommendation but his counsel later suggested that a "private censure" with conditions would be suitable, despite this not being an officially recognized form of discipline under South Dakota law. Instead, a "private reprimand" is permissible, and the Supreme Court can impose probationary conditions if deemed appropriate.

Russell graduated from the University of South Dakota School of Law in 1999, passed the bar exam, and was admitted to practice in 2000. His career includes a year as a law clerk, a term as State’s Attorney for Fall River County, and subsequent election to the South Dakota Legislature. During the disciplinary proceedings, Russell completed an LL.M. in environmental law and expressed interest in practicing in that field, pending resolution of the disciplinary matter.

The proceedings primarily focus on two issues: Russell's use of a grand jury to investigate a contentious golf course expansion and his release of the grand jury transcript to the public, as well as a press release he issued that criticized Judge Jeff Davis regarding delays in a homicide trial.

In November 2006, Russell was approached by several individuals, including Steven Schjodt, a civil engineer and campaign contributor, to draft a recall petition against Hot Springs Mayor Carl Oberlitner, citing misconduct related to the sale of the Carnegie Library and the municipal golf course development. Schjodt provided input and revisions for the petition. By 2007, a South Dakota Department of Legislative Audit investigation into the golf course project, prompted by the Attorney General's office, concluded without criminal charges. Concurrently, the city was involved in litigation with the project’s general contractor over costs and work quality. Councilman Don Patitz and Schjodt expressed frustration over Oberlitner's management and alleged billing irregularities, urging Russell to take action.

Following their encouragement, Russell sought and obtained an order for a grand jury convening on July 27, 2007, to investigate the golf course project. At the time, Russell was serving his second term as State’s Attorney. Schjodt testified twice during the proceedings and acted as a consultant, offering opinions on the contractor’s work and grand jury strategy, while also suggesting witnesses. The Referee noted that Schjodt's influence on the grand jury process was significant, with Russell admitting to sharing grand jury information with Schjodt, who in turn communicated some details to a dissenting citizen.

As the grand jury investigation progressed, Judge Davis, concerned about the integrity of the proceedings due to rumors of leaks, met with Russell in April 2008 and warned him of authority abuse, demanding the investigation conclude within 30 days. On May 20, 2008, the grand jury indicted the golf course contractor, Steven Simunek, and his wife, Carla.

The Simuneks faced multiple criminal charges, including seven Class 6 felonies, two Class 5 felonies, and seven Class 1 misdemeanors, while Mayor Oberlitner was charged with one Class 2 misdemeanor. They engaged experienced counsel who began discovery and intended to utilize expert Schjodt at trial, although Russell, the attorney, did not take into account Schjodt's documents or contributions related to tax-related offenses and misconduct by a municipal officer. On August 18, 2008, Russell proposed a settlement for Steven Simunek involving a guilty plea to four chosen counts, dismissal of remaining charges, and unsealing of grand jury proceedings, among other terms. A similar settlement was offered to Mayor Oberlitner, requiring him to waive a speedy trial and apologize to the citizens of Hot Springs. Notably, Russell had not previously included a public release of grand jury transcripts in plea agreements and lacked research on the legal restrictions governing such disclosures. Simunek ultimately accepted a plea deal for four misdemeanors, leading to a six-month jail sentence, with most time suspended.

All charges against Simunek's wife were dismissed, and Mayor Oberlitner issued a public apology to Russell, which was published in the Hot Springs Star. On November 18, 2008, Judge Tice signed an order prepared by Russell to open grand jury proceedings, making the transcripts and exhibits related to the indictments of Carl Oberlitner and Steve Simunek public records accessible through the Fall River County State’s Attorney’s Office. However, information unrelated to the indictments was not to be disclosed. Russell did not inform the defendants or their counsel about this order and subsequently shared the transcripts with the Rapid City Journal and Hot Springs Star, which violated SDCL 23A-5-16 by improperly opening the proceedings and delegating authority to the State's Attorney.

Before leaving office, Russell was instructed by Schjodt to destroy notes and emails to prevent future issues for Schjodt's successor. Russell testified that he shredded records, including those related to a golf course project, claiming he acted on guidance from the Attorney General's office. By January 2009, Russell transitioned from State's Attorney to a member of the South Dakota House of Representatives. He faced accusations of abusing his power and felt politically and personally targeted, prompting him to post the grand jury transcript on his website as a defense, though he later acknowledged it was unnecessary.

On February 19, 2009, Judge Davis issued an order to seal the grand jury transcript, stating that its prior release was not connected to prosecutorial duties or valid judicial proceedings as required by law, and it was in violation of SDCL 23A-5-16. The order mandated the immediate sealing of all grand jury transcripts and exhibits related to Fall River Grand Jury #07-02 and prohibited their release by the State’s Attorney’s Office.

The Fall River County Grand Jury #07-02 reviewed certain matters, with the State's Attorney succeeding Russell recovering most grand jury transcripts, though some media entities did not return copies. In the high-profile homicide case, State v. Fast Horse, Russell served as prosecutor, facing delays due to an intermediate appeal, incomplete discovery, jury questionnaires, and the need for a larger trial venue. Despite Russell's efforts to set a trial date before his term ended, Judge Davis and defense attorney Rensch were unprepared to proceed in December 2008 due to Russell's incomplete disclosures and venue issues. In early December, Russell issued a press release criticizing Judge Davis for the trial's delay.

The Referee recommended public censure of Russell for exercising poor judgment and violating several Rules of Professional Conduct, including those related to prosecutors' responsibilities, respect for third parties' rights, and professional misconduct. Russell misused his office to support local political aims and to enhance his political career, failing to exercise independent judgment in an investigation related to a golf course project. His misconduct included publicizing the grand jury transcript on his website and issuing the press release against Judge Davis, both warranting disciplinary action. Mitigating factors included Russell's lack of prior disciplinary history, cooperation with the disciplinary board, relative inexperience, and acknowledgment of his improper conduct. Russell plans to focus on environmental and natural resource law and does not intend to pursue public prosecutor positions again.

The court's review of disciplinary cases is based on the hearing record rather than solely on the Disciplinary Board's report. The findings of the Referee, who had firsthand witness interactions, are given careful consideration, though not conclusively binding.

If a referee's findings are substantiated by evidence, the Supreme Court will not alter them. However, the Court does not grant deference to a referee’s recommended sanctions, as the ultimate disciplinary authority over State Bar members lies with the Court. While the Court may adopt a referee’s findings, it is not obligated to accept their recommendations. Disciplinary proceedings are considered quasi-criminal, and the Court's authority is derived from constitutional provisions, statutes, and its inherent power to regulate legal practice, which must be exercised in accordance with due process.

Russell claims he was denied due process by the Disciplinary Board, arguing that critical issues were not noticed, he lacked specificity regarding the rule violations, and that the Board Chair exhibited bias. He asserts he was unaware of inquiries about domestic violence and the trial delay until the Board raised them, despite having introduced these topics himself in his response, which included relevant exhibits. The Board is mandated to investigate any disciplinary grounds brought to its attention.

Russell also argues that he did not receive sufficiently detailed notice of the rules he allegedly violated. Nonetheless, the complaint must adequately inform the respondent of the charges, and even in quasi-criminal contexts, sufficient clarity is required for a defendant to understand the accusations and prepare a defense. Ultimately, Russell was deemed to have received fair notice and was not misled regarding the proceedings. It is noted that attorneys have an obligation to be aware of the disciplinary rules governing their profession. Lastly, Russell contends due process was violated because the Board Chair was involved in multiple roles throughout the complaint process.

Members of the Disciplinary Board of the State Bar of South Dakota are required to abstain from proceedings in which a judge would also need to recuse themselves, ensuring impartiality (SDCL 16-19-28). There is no evidence suggesting that the Board Chair had prior knowledge of Russell's case or that her impartiality could be questioned. Russell requested the recusal of Board member Roger Tellinghuisen, which was granted, but did not make a similar request for the Board Chair.

In the Kunkle case, the constitutionality of SDCL chapter 16-19, which governs disciplinary procedures, was challenged on due process grounds. It was argued that the court was improperly situated as investigator, prosecutor, and judge. However, the court maintained that while disciplinary proceedings may be quasi-criminal, they are distinct and fall under the court's inherent power to regulate legal practice. The court's primary responsibility is to protect the public from unfit attorneys and maintain ethical standards within the profession, operating without financial interest in the outcomes of such actions. The court affirmed that the procedures outlined in SDCL 16-19 do not violate due process rights.

The role of the prosecutor is defined as one representing the sovereignty, with an obligation to ensure justice rather than merely pursue victory in a case (Berger v. United States, 295 U.S. 78). Similarly, the Minnesota Supreme Court has emphasized that a prosecutor acts as a minister of justice, responsible for safeguarding the rights of both the accused and the public.

The prosecutor's role is defined as seeking justice for both the victim and the defendant, rather than merely representing the victim, as established in Berger v. United States. This responsibility entails acting on behalf of the public interest and the state, emphasizing the importance of prosecuting with diligence while avoiding methods that could lead to wrongful convictions. The prosecutor is viewed as a minister of justice, not just an advocate, as outlined in various legal standards, including Rule 3.8 of the South Dakota Rules of Professional Conduct. This rule highlights the distinct duties of a prosecutor, stressing the need for restraint in exercising governmental powers and ensuring fairness throughout the legal process.

Specific obligations include:

1. Not prosecuting charges lacking probable cause.
2. Ensuring the accused is informed of their right to counsel and given a chance to obtain it.
3. Avoiding attempts to secure waivers of significant pretrial rights from unrepresented defendants.
4. Timely disclosing exculpatory evidence to the defense.
5. Exercising caution when subpoenaing lawyers regarding client representations, ensuring there is no applicable privilege and that the information is crucial for the investigation.
6. Making public statements only when necessary for legitimate law enforcement purposes.

Overall, the prosecutor must balance the pursuit of justice with ethical responsibilities, ensuring that the rights of the accused are upheld and that the integrity of the legal process is maintained.

Prosecutors have distinct responsibilities compared to private attorneys, particularly regarding evidence disclosure. They must timely share evidence that may negate the accused's guilt, mitigate the offense, or reduce punishment, and should not withhold evidence due to concerns it may weaken their case. Prosecutors are also prohibited from making statements that could unjustly inflame public opinion against the accused and must ensure that their associates do not make such statements.

Russell's conduct as a prosecutor demonstrated a fundamental misunderstanding of his role and duties. He allowed personal and political biases regarding a golf course project to impair his judgment, permitting political supporter Schjodt to influence grand jury decisions and strategy. Russell consulted Schjodt extensively and failed to disclose this involvement to the defense, violating ethical obligations. 

The Supreme Court emphasizes that prosecutors must seek justice, not merely convictions, and they have a duty to disclose Brady evidence to the defense. Violating these ethical standards can lead to professional discipline, including disbarment. Russell's failure to research legal requirements led to the improper release of grand jury transcripts, misleading the court and attempting to shield his reputation amid public criticism. Furthermore, he issued a press release inaccurately blaming Judge Davis for delays in a case, violating rules against making false statements about a judge's qualifications or integrity.

Determining appropriate attorney discipline involves assessing the seriousness of misconduct, the likelihood of recurrence, and the attorney's prior record. The court evaluates the overall attorney-client relationship for mitigating factors and aims to protect the public from future harm caused by the attorney's conduct. Misconduct is grounds for various sanctions including disbarment, suspension (not exceeding three years), probation, public censure, or private reprimand. Although the court does not formally adopt the ABA Standards for imposing sanctions, it considers them as a reference, particularly regarding aggravating and mitigating circumstances. Aggravating factors include prior offenses and patterns of misconduct, while mitigating factors can include a lack of prior disciplinary record and cooperation with the disciplinary process. In a specific case, the referee found that Russell violated conduct rules by failing to exercise independent judgment and misusing his office for personal political gain, leading to a recommendation of public censure. This recommendation was tempered by mitigating factors such as Russell's lack of prior discipline and his cooperation with the board.

Mental disability or chemical dependency, including alcoholism or drug abuse, may mitigate misconduct if: 1) medical evidence indicates the respondent is affected; 2) the disability or dependency caused the misconduct; 3) there is demonstrable recovery through a meaningful period of successful rehabilitation; and 4) the recovery has effectively halted the misconduct, making recurrence unlikely. Other factors to consider include delays in disciplinary proceedings, imposition of penalties, expressions of remorse, and the remoteness of prior offenses. In the case of Russell, public censure was recommended after he acknowledged his misconduct, cooperated with the Disciplinary Board, and demonstrated a lack of prior offenses. The circumstances surrounding his actions were influenced by inexperience and a challenging political context. Russell has no other disciplinary history, and he is required to bear the costs of the proceedings. The decision was supported by the Justices, including Chief Justice Gilbertson and others.