Matter of Discipline of Russell , 2011 S.D. LEXIS 16 ( 2011 )

#25490-GAS
2011 S.D. 17IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN THE MATTER OF THE
DISCIPLINE OF LANCE RUSSELL,
AS AN ATTORNEY AT LAW.
* * * *
ORIGINAL PROCEEDING
* * * *
ROBERT B. FRIEBERG
Disciplinary Board Counsel
Beresford, South Dakota Attorney for Disciplinary
Board.
MICHAEL K. SABERS of
Clayborne, Loos, Strommen
& Sabers, LLP
Rapid City, South Dakota Attorney for Lance Russell.
* * * *
ARGUED JANUARY 10, 2011
OPINION FILED 04/20/11
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SEVERSON, Justice
[¶1.] This is a disciplinary proceeding against Lance Russell, a member of
the State Bar of South Dakota. The Disciplinary Board of the State Bar
recommended that Russell be publicly censured. The Referee, Retired Justice
Robert A. Miller, also recommended a public censure. In his brief in response to the
Referee’s findings of fact, conclusions of law, and recommendation, Russell asks this
Court to dismiss the Board’s and the Referee’s recommendation. At oral argument,
however, Russell’s counsel told the Court that a “private censure” with conditions
imposed to ensure that the conduct resulting in these proceedings does not reoccur
would be appropriate. 1
GENERAL BACKGROUND
[¶2.] Russell graduated from the University of South Dakota School of Law
in 1999. He passed the South Dakota bar examination and was admitted to
practice law on January 10, 2000.
1. A “private censure” is not a recognized form of discipline by the Supreme
Court. A “private reprimand” is an authorized form of discipline for the
Disciplinary Board. SDCL 16-19-35. Further, “[i]f it is determined after an
investigation by the board that the complaint is meritorious, but that formal
disciplinary proceedings are not warranted, the board and the attorney may
agree in writing to hold the proceedings in abeyance for a definite period,
provided the attorney throughout the period complies with specified
reasonable conditions.” SDCL 16-19-60. This provision is inapplicable at the
current stage of the disciplinary process. Id. The Supreme Court, however,
can impose conditions if it determines that placement on probationary status
is the appropriate discipline. SDCL 16-19-35(3).
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[¶3.] After graduating from law school, Russell clerked for the circuit court
in Deadwood, South Dakota for a year. He then entered the private practice of law
in Hot Springs, South Dakota. In 2000 he was elected State’s Attorney for Fall
River County. Russell was reelected in 2004. In 2008 Russell chose not to seek a
third term. Instead, he ran for and was elected to the South Dakota Legislature,
representing District 30 in the House of Representatives. Russell was reelected to
this position in 2010.
[¶4.] During the pendency of this disciplinary proceeding, the only one ever
filed against him, Russell completed a LL.M. program in environmental law at the
University of Denver. While Russell told the Disciplinary Board that he would like
to practice in some capacity in the areas of environmental law and natural
resources law, he told this Court that his plans are uncertain until this disciplinary
matter is resolved.
[¶5.] The focus of this disciplinary proceeding was two-fold. First it
examined Russell’s use of the grand jury to investigate a controversial golf course
expansion project in Hot Springs and Russell’s release of the grand jury transcript
to the public. Second, it examined Russell’s issuance of a press release criticizing
and blaming Judge Jeff Davis for the trial delay in the homicide case of State v. Fast
Horse.
GRAND JURY
[¶6.] In 2002 the Common Council of Hot Springs entered an agreement
with Steve and Carla Simunek for the construction of an additional nine holes to
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the Hot Springs golf course. 2 The project was fraught with controversy and divided
the community and Common Council.
[¶7.] In November 2006, Russell was approached by a number of people
including Steven Schjodt, a civil engineer for the Army Corps of Engineers and a
contributor to Russell’s campaigns, and asked to draft a petition to recall Hot
Springs Mayor Carl Oberlitner for misconduct, malfeasance, corruption, oppression,
and gross partiality in the sale of the Carnegie Library and the development of the
new nine holes to the municipal golf course. Russell asked for Schjodt’s input in
drafting the petition and Schjodt suggested revisions.
[¶8.] By 2007 the South Dakota Department of Legislative Audit had
completed an investigation of the golf course project at the direction of the Attorney
General’s office. No criminal action resulted. The Department of Revenue was in
the midst of auditing the records of the project’s general contractor, and the city of
Hot Springs was in litigation with the general contractor concerning the cost of the
project and sufficiency of the work performed.
[¶9.] Russell was aware of the investigation, audit, and civil litigation when
a city councilman, Don Patitz, and Schjodt met with Russell and expressed their
dissatisfaction with Mayor Oberlitner’s handling of the golf course issue and what
they believed were billing irregularities by the Simuneks. Patitz and Schjodt were
not satisfied with the other investigations and were adamant that Mayor Oberlitner
and the Simuneks needed to be punished.
2. See Okerson v. Common Council of Hot Springs, 2009 S.D. 30, 767 N.W.2d
531.
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[¶10.] Due in large measure to Patitz’s and Schjodt’s urging, Russell applied
for and received an order calling a grand jury to convene on July 27, 2007, primarily
to investigate the golf course project. At that time, Russell was in his second term
as State’s Attorney and seventh year as a prosecutor.
[¶11.] During the course of the grand jury proceedings Schjodt testified twice.
Because of Schjodt’s background in dealing with federal construction projects and
his knowledge of construction costs and taxes, Russell considered Schjodt to be “my
expert essentially.” 3
[¶12.] Throughout the grand jury proceedings Russell regularly consulted
with Schjodt. Schjodt provided Russell with his personal and professional opinions
regarding the scope and quality of the contractor’s work on the golf course. Schjodt
also provided Russell with suggestions as to witnesses, and grand jury strategy.
Further, Schjodt encouraged Russell to continue the investigation as a means to
enhance Russell’s reputation. The Referee found that the extensive communication
between Schjodt and Russell demonstrated “that Schjodt arguably influenced the
direction of the grand jury proceedings.” Russell admitted that he gave Schjodt
information from the grand jury proceedings. Schjodt shared some of this
information, by unsigned letter, with a citizen who did not agree with his viewpoint.
[¶13.] While the grand jury was impaneled and continuing its investigation of
the golf course project, Judge Davis, the presiding judge in the Seventh Circuit,
began to hear rumors “that what was taking place in the Grand Jury was known on
3. Russell also consulted with two independent golf course experts.
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the street.” Because of his concern for the integrity of the grand jury process and
the secrecy of it, Judge Davis drove to Hot Springs in April 2008 to meet with
Russell. Judge Davis told Russell:
You’ve abused your authority as a State’s Attorney. There are
things on the street that should not be there out of the Grand
Jury process. I don’t know what all you’ve got going. You’ve got
30 days to wrap it up because I am pulling your Grand Jury on
you.
[¶14.] On May 20, 2008, the grand jury indicted the golf course contractor,
Steven Simunek, and his wife, Carla, as co-defendants. The Simuneks were
charged with seven Class 6 felonies, 4 two Class 5 felonies, 5 and seven Class 1
misdemeanors. 6 Mayor Oberlitner was charged with one Class 2 misdemeanor. 7
[¶15.] The defendants retained experienced counsel who began discovery and
discussed the cases with Russell. Schjodt continued to advise and consult with
Russell and Russell intended to use Schjodt as an expert at trial. Inexplicably,
Russell did not consider Schjodt’s written documents or his involvement in the
4. Making a false or fraudulent contractors’ excise tax return in attempting to
defeat or evade contractors’ excise tax. SDCL 10-46A-8, SDCL 10-46A-
13.1(1).
5. Attempted grand theft of public funds by false instrument, SDCL 4-9-5; SDCL
22-30A-17, or, in the alternative, attempted grand theft. SDCL 22-30A-1,
SDCL 22-30A-17(1).
6. Failing to file returns or pay tax, SDCL 10-46A-13, SDCL 10-46A-13.1(2); tax
evasion by false or fraudulent return. SDCL 10-46-37.
7. Neglect of duty or misconduct by municipal officer. SDCL 9-14-37.
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proceedings to be exculpatory as impeachment evidence affecting witness credibility
and did not disclose these matters to the defense.8
[¶16.] After consulting Schjodt, on August 18, 2008, Russell offered to settle
the charges against Steven Simunek (Simunek) on the following terms:
A. That Simunek plead guilty to any four counts of his choosing;
B. The remainder of the charges would be dismissed;
C. Upon Simunek’s plea, the State would dismiss all charges
against his spouse;
D. The State would not resist a request for a suspended
imposition of sentence;
E. The entire grand jury proceedings leading to the indictment of
Mr. and Mrs. Simunek including the transcripts and exhibits
will be unsealed and filed in the criminal case;
F. The defendants would to the satisfaction of the Department
of Revenue, file or refile sales, use and excise tax returns;
and,
G. The State and defendant reserve the right to
aggravate/mitigate at the time of sentencing.
(Emphasis added.)
[¶17.] Russell also offered to settle the charges against Mayor Oberlitner on
the following terms:
A. That the defendant waive any and all rights to a speedy trial;
B. That the defendant obey all laws, etc.;
C. That the defendant write a letter of apology to the citizens of
Hot Springs which must be approved by [Russell] prior to the
8. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104(1972).
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offer becoming binding with a publication date in the Hot
Springs Star after November 4, 2008;
D. That the defendant agree that the entire grand jury
proceedings leading to the indictment of defendants Steven
and Carla Simunek, including the transcripts and exhibits,
will be unsealed, filed and become a public record; and
E. That if the defendant fulfills all of the terms the State will on
December 31, 2008 dismiss with prejudice the charge of
Neglect of Duty or Misconduct by a Municipal Officer.
(Emphasis added.)
[¶18.] Russell had never before put a condition in a plea agreement calling
for the public release of grand jury transcripts. He admits that he did not research
the law concerning the restrictions on disclosure of grand jury proceedings. SDCL
23A-5-16 governs restrictions on disclosure of grand jury proceedings. Russell
believed that releasing the grand jury transcripts would inform the public of the
facts of the golf course project and dispel problems within the community of Hot
Springs. Simuneks and Mayor Oberlitner did not testify before the grand jury.
[¶19.] Simunek accepted and pleaded guilty to four misdemeanors. His
attorney testified he did not contest the provisions on release of the grand jury
proceedings as the terms of the plea agreement were favorable to his client and he
had no authority to release the proceedings in any event. Judge Tice sentenced
Simunek to six months in jail with all but three days suspended and imposed a fine
and costs. All of the charges against Simunek’s wife were dismissed. Mayor
Oberlitner also accepted Russell’s offer and wrote a letter of apology that was
published in the Hot Springs Star.
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[¶20.] Litigating parties cannot agree to modify state law. But
presumably relying on the plea agreement, on November 18, 2008, Judge Tice
signed an “order for opening grand jury proceedings” that Russell prepared.
This order said:
The Court, after being fully advised in the premises,
hereby
ORDERS that the Grand Jury transcript and exhibits
leading to the Indictments of Carl Oberlitner and Steve
Simunek shall be considered public records open for public
inspection exclusively through the Fall River County State’s
Attorney’s Office; however, any information deemed by the Fall
River County State’s Attorney to be unrelated to the
Indictments will not be considered public records and may not
be disclosed to the public.
Russell did not notify any of the defendants or their counsel that he secured this
order. Russell also did not advise them when he made the transcripts available to
the public and provided copies to the Rapid City Journal and Hot Springs Star
newspapers. The order improperly opened grand jury proceedings beyond any
legitimate needs of a prosecutor contrary to SDCL 23A-5-16 and also improperly
delegated authority to the State’s Attorney.
[¶21.] Prior to the end of Russell’s term as State’s Attorney, Schjodt directed
Russell to get rid of Schjodt’s notes and emails to Russell because Schjodt did not
want Russell’s successor “going through that stuff and causing me trouble.” Russell
did shred records of the Fall River State’s Attorney’s office including documents
relating to the golf course project. He testified that he received guidance from the
Attorney General’s office.
[¶22.] In January 2009, Russell was no longer Fall River County’s State’s
Attorney. He was a member of the South Dakota House of Representatives.
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According to Russell several newspaper articles had accused him of abusing his
power as State’s Attorney. He believed that people were intent on destroying him
politically and personally. Russell testified:
And I tried to defend myself. And the way in which I figured I
could defend myself, the only way, is with the facts. I had an
order from a judge that I believed was valid and I put [the grand
jury transcript] on my website [www.representativerussell.com].
Should I have in retrospect? No I should not have. It was
unnecessary. I had gained a conviction. But I was getting beat
up so badly that I felt I had to do something.
[¶23.] On February 19, 2009, Judge Davis, the presiding judge who
impaneled the grand jury, signed and filed an “order to seal transcript” which
provided:
This matter having come before the Court upon
information provided to the Court as to the release of the grand
jury proceedings from Fall River Grand Jury #07-02; the release
of the grand jury transcript and exhibits is not related to any
prosecutorial duties as is required by SDCL 23A-5-16; the
release of the grand jury transcript and exhibits is not related to
any valid judicial proceeding as is required by SDCL 23A-5-16;
no grounds exist for the release of the grand jury transcript; the
prior order of the Court was improperly submitted to the Court
upon improper grounds; the Court having reviewed SDCL 23A-
5-16 and the Court finding that the release of the grand jury
transcript and exhibits as to Fall River Grand Jury #07-02 are
in violation of said law; the Court being fully informed as to the
law, facts and circumstances related to the matters relevant
herein; it is hereby
ORDERED, that the Fall River County Clerk of Courts
shall immediately seal any and all grand jury transcripts and
exhibits which were produced or are related to any and all
matters considered by Fall River County Grand Jury #07-02;
and it is further
ORDERED, that the Fall River County State’s Attorney’s
Office shall not release any grand jury transcripts and exhibits
which were produced or are related to any and all matters
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considered by Fall River County Grand Jury #07-02, unless by
further order of this Court[.]
[¶24.] The Fall River State’s Attorney who succeeded Russell was able to
retrieve most, but not all, of the grand jury transcripts released by the State’s
Attorney’s office. Certain media refused to return the copies. Russell removed the
transcript from his website.
FAST HORSE
[¶25.] A high profile homicide case State v. Fast Horse had been pending
since 2006. Russell was the prosecutor and Tim Rensch the defense attorney with
Judge Davis presiding.
[¶26.] The case had been pending for some time due to: a) an intermediate
appeal to the Supreme Court of an order Judge Davis entered; b) incomplete
discovery; c) incomplete jury questionnaires; and, d) the need to locate a trial site
outside of the small Fall River County courtroom due to the need to call a large
number of prospective jurors.
[¶27.] Russell sought a trial date to get the Fast Horse case tried before the
end of his term. However, Judge Davis and defense counsel Rensch were not
prepared to try the case in December 2008 because of Russell’s lag in completing
required disclosures to the defense and the lack of a suitable site for the trial until
the beginning of 2009.
[¶28.] In early December 2008, Russell issued a press release which criticized
Judge Davis and, according to an article posted on the Rapid City Journal’s website,
“implied that [Judge Davis] dragged [his] feet in setting a trial date for accused
murderer Shannon Fast Horse.”
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REFEREE
[¶29.] In ultimately recommending the public censure of Russell, the Referee
concluded:
A. [Russell] exercised poor judgment and violated the Rules of
Professional Conduct Rule 3.8 concerning special
responsibilities of prosecutors; Rule 4.4(a) concerning respect
for rights of third persons; Rule 8.2(a) concerning judicial
officials; and Rule 8.4(a)(d) concerning professional
misconduct. He used his office as State’s Attorney: (a) to
further local political aims of his associate and advisor,
Schjodt and others who shared opposition to the golf course
project; (b) to enhance and/or defend his own political career;
and (c) by failing to use his independent professional
judgment in the conduct of the investigation of the golf
course project.
B. [Russell’s] misconduct (1) in publicizing and putting the
grand jury transcript on his web site and (2) in preparing and
in issuing the press release criticizing Judge Davis for the
delay in the trial of the Fast Horse case, standing alone,
warrant the discipline that this Referee is recommending.
C. [Russell’s] misconduct is mitigated by the absence of a prior
disciplinary record, a cooperative attitude toward the Board
in its proceedings, his relative inexperience in the practice of
law, and his willingness to concede that his conduct was
improper and that he made mistakes. [Russell] who intends
to complete a masters program and principally practice law
in the areas of environment and natural resources has
indicated that he has no present intention of again seeking a
position as a public prosecutor.
STANDARD OF REVIEW
[¶30.] “Our decisions in disciplinary cases are based upon the record made at
the hearing before the referee, not upon the basis of the report and recommendation
of the [Disciplinary Board] or the Attorney General.” In re Kunkle, 88 S.D. 269, 283,
218 N.W.2d 521, 529 (1974).
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[¶31.] The findings of the Referee are given careful consideration by this
Court because the Referee had the advantage of encountering the witnesses first
hand. In re Discipline of Laprath, 2003 S.D. 114, ¶ 41, 670 N.W.2d 41, 55. This
Court has said that:
[W]hile the findings of the referee are not conclusive, we must
consider them carefully because the referee had the advantage
of seeing and hearing the witnesses. If the referee’s findings are
supported by the evidence, they will not be disturbed by the
Supreme Court.
Matter of Discipline of Dana, 415 N.W.2d 818, 822 (S.D. 1987) (quoting In re
Rensch, 333 N.W.2d 713, 714 (S.D. 1983)).
On the other hand, we give no particular deference to a referee’s
recommended sanction. The ultimate decision for discipline of
members of the State Bar rests with this [C]ourt. In re Hopp,
376 N.W.2d 816 (S.D. 1985); [In re Willis, 371 N.W.2d 794 (S.D.
1985)]; SDCL 16-19-22. Therefore, although we may adopt the
findings of a referee, it does not necessarily follow that we will
also adopt his recommendations. Rensch, [333 N.W.2d at 714];
[In re Strange, 366 N.W.2d 495 (S.D. 1985)].
Id.DUE PROCESS
[¶32.] “[D]isciplinary proceedings have been termed quasi-criminal in
nature.” Kunkle, 88 S.D. at 280, 218 N.W.2d at 527 (citing In Re Ruffalo, 390 U.S.
544, [551,] 88 S. Ct. 1222, [1226,] 20 L. Ed. 2d 117 (1968)). This Court’s authority to
conduct the proceedings, however, stems from the constitution, S.D. Const. art. V, §
12, statute, SDCL 16-16, and the inherent power of the Court to regulate the
practice of law. Id. This inherent power “must of course be exercised in a manner
that comports with due process.” Id.
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[¶33.] Russell contends that he was not afforded due process before the
Disciplinary Board. He contends that issues that had not been noticed were central
to the case, he did not receive specification of rule subsections that he allegedly
violated, and the Disciplinary Board Chair was biased.
[¶34.] Russell contends he had no notice of questions by the Disciplinary
Board concerning Russell’s alleged domestic violence and the delay in bringing the
Fast Horse case to trial. It was Russell, however, who brought these issues to the
Disciplinary Board’s attention. In his response to the complaint, Russell attached
exhibits which included a photocopy of a letter from a group of citizens to Governor
M. Michael Rounds inquiring about the allegations and investigation of alleged
domestic violence as well as photocopies of newspaper articles detailing the
allegations of domestic violence and the delay in bringing Fast Horse to trial.
Russell’s submission to the Disciplinary Board opened the door to questioning him
about the issues. The Disciplinary Board has the power and duty to investigate any
alleged ground for discipline “called to its attention.” SDCL 16-19-29(1).
[¶35.] Russell also contends that he did not receive specific enough notice of
the rules and their subsections that he allegedly violated. Regardless of whether
disciplinary proceedings are considered civil or quasi-criminal in nature, the
complaint must “adequately inform” the respondent of the nature of the charge
against him. Kunkle, 88 S.D. at 274, 218 N.W.2d at 524.
Even in criminal cases the charge is sufficient if it enables a
person of common understanding to know what is intended from
the language contained therein and if it apprises a defendant
with reasonable certainty of the accusation against him so that
he may prepare his defense.
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Id., 88 S.D. at 274-75, 218 N.W.2d at 524.
[¶36.] Russell received fair notice of what he was facing and was not misled
or prevented from preparing an adequate defense. “[I]t is incumbent on an attorney
to know the disciplinary rules regulating his profession.” Samuel T. Reaves,
Procedural Due Process Violations in Bar Disciplinary Proceedings, 22 J. Legal
Prof. 351, 354 (1998) (quoting State v. Turner 538 P.2d 966, 972 (Kan. 1975)).
[¶37.] Finally, Russell contends that he was denied due process because the
Board Chair was assigned to the complaint, directed the investigation, and
participated in the hearing and decision making process. See Rules of Procedure of
the Disciplinary Board of the State Bar of South Dakota. SDCL app. 16-19.
[¶38.] Members of the Disciplinary Board “shall refrain from taking part in
any proceeding in which a judge, similarly situated, would be required to abstain.”
SDCL 16-19-28. There is no suggestion that the Board’s Chair had prior
independent knowledge of Russell’s case and no suggestion that her impartiality
might be questioned. Canon 3(E), Code of Judicial Conduct. SDCL app. 16-2.
Russell requested that Disciplinary Board member Roger Tellinghuisen recuse
himself which he did. Russell made no such request of the Board Chair.
[¶39.] In Kunkle, the constitutionality of SDCL ch. 16-19 (the disciplinary
process) was challenged as violative of due process because the procedure placed
“the court in the untenable position of being the investigator, the grand jury or
indictor, the prosecutor and the final arbiter and judge in disciplinary actions.” 88
S.D. at 279, 218 N.W.2d at 526. This Court noted:
We think the procedure condemned in the Murchison case is a
far cry from our statutory procedures for conducting disciplinary
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actions. Granted that disciplinary proceedings have been
termed quasi-criminal in nature, . . . they are sui generis in the
sense that this court’s authority to conduct them stems from the
inherent power of the court to regulate the practice of law.
Although this inherent power must of course be exercised in a
manner that comports with due process, we must recognize the
fact that the courts occupy a traditionally unique position vis-à-
vis the members of the legal profession. This court has the
responsibility of protecting the public from the unfit, the
incompetent and the dishonest attorney, and the duty to
maintain the high ethical standard of the legal profession. This
court has no interest other than to accomplish that purpose. We
have no financial interest in the outcome of any disciplinary
action. This court has no interest in any given disciplinary
action other than to see that all legitimate complaints are
adequately investigated and that proper proceedings are
brought if in the court’s opinion the results of the investigation
are such as to warrant the filing of a formal complaint. We
consider our authority to review and weigh the results of a
preliminary investigation to be as much a shield of protection for
the attorney who may be accused by those having improper,
vindictive motives as it is an aid to the court to carry out its
solemn obligation to protect the public from those few members
of the bar who by their conduct have demonstrated that they are
not fit to be members of the profession. In short, we consider the
authorities cited by respondent to be inapposite and we hold
that the procedure set forth in SDCL 16-19 does not
unconstitutionally deprive an accused attorney of his right to
due process of law.
Id., 88 S.D. at 280-81, 218 N.W.2d at 527-28 (internal citations omitted).
THE ROLE OF THE PROSECUTOR
[¶40.] The United States Supreme Court has explained that a prosecutor “is
the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.
Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935).
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[¶41.] The Minnesota Supreme Court in addressing the role of a prosecutor
has stated:
We have repeatedly stated that a “prosecutor is a minister of
justice whose obligation is to guard the rights of the accused as
well as to enforce the rights of the public.” E.g., State v.
Cabrera, 700 N.W.2d 469, 475 (Minn. 2005); State v. Salitros,
499 N.W.2d 815, 817 (Minn. 1993) (quoting I ABA Standards for
Criminal Justice, The Prosecution Function 3-1.1 and
Commentary at 3.7 (2d ed. 1979)) (internal quotations omitted).
The duty of a prosecutor is to see that justice is done on behalf of
both the victim and defendant. Berger v. United States, 295 U.S.
78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). Therefore, a
prosecutor does not “represent” the victim. See id. A prosecutor
represents the public interest and the sovereign and his goal is
to see that justice is done. Id. This places a special burden on
prosecutors because they should prosecute with “earnestness
and vigor,” but must “refrain from improper methods calculated
to produce a wrongful conviction.” Id.State v. Penkaty, 708 N.W.2d 185, 196-197 (Minn. 2006).
[¶42.] “A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate.” Comment, Rule 3.8, South Dakota Rules of
Professional Conduct. SDCL app. 16-18. Rule 3.8 of the Rules of Professional
Conduct recognizes the special responsibilities of a prosecutor: 9
9. In State v. Brandenburg, 344 N.W.2d 702, 706 (S.D. 1984), this Court
recognized the role and responsibilities of a prosecutor under the prior Code
of Professional Responsibility:
Ethical Consideration 7-13 of the Code of Professional
Responsibility set forth in SDCL 16-18, Appx., provides:
The responsibility of a public prosecutor differs from that of the
usual advocate; his duty is to seek justice, not merely to convict.
This special duty exists because: (1) the prosecutor represents
the sovereign and therefore should use restraint in the
discretionary exercise of governmental powers, such as in the
selection of cases to prosecute; (2) during trial the prosecutor is
(continued . . .)
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The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor
knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has
been advised of the right to, and the procedure for
obtaining counsel and has been given reasonable
opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver
of important pretrial rights, such as the right to a
preliminary hearing;
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to
exculpate the guilt of the accused, and, in connection with
sentencing, disclose to the defense and to the tribunal all
unprivileged exculpatory information known to the
prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence relating to the lawyer’s
representation of a past or present client unless the
prosecutor reasonably believes:
(1) the information sought is not protected from disclosure
by any applicable privilege;
(2) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution;
and
(3) there is no other feasible alternative to obtain the
information;
(f) except for statements that are necessary to inform the
public of the nature and extent of the prosecutor’s action
and that serve a legitimate law enforcement purpose,
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(. . . continued)
not only an advocate but he also may make decisions normally
made by an individual client, and those affecting the public
interest should be fair to all; and, (3) in our system of criminal
justice the accused is to be given the benefit of all reasonable
doubts. With respect to evidence and witnesses, the prosecutor
has responsibilities different from those of a lawyer in private
practice: the prosecutor should make timely disclosure to the
defense of available evidence, known to him, that tends to
negate the guilt of the accused, mitigate the degree of the
offense, or reduce the punishment. Further, a prosecutor should
not intentionally avoid pursuit of evidence merely because he
believes it will damage the prosecutor’s case or aid the accused.
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refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation
of the accused and exercise a reasonable care to prevent
investigators, law enforcement personnel, employees of
other persons assisting or associated with the prosecutor in
a criminal case from making an extrajudicial statement
that the prosecutor would be prohibited from making
under Rule 3.6 or this Rule.
[¶43.] In this case it is clear that Russell had a fundamental
misunderstanding of his role as a prosecutor, who he represented as a prosecutor,
and the independent judgment that a prosecutor must exercise. Russell allowed his
personal and political views of the golf course project and the mayor’s handling of
the issue to cloud his independent judgment as a prosecutor. Russell allowed
Schjodt, a political supporter who shared Russell’s views, to influence the decision
to convene the grand jury. Through the course of the grand jury proceeding, Russell
relied on Schjodt for advice on witnesses, evidence, and strategy and shared
information from the grand jury proceedings with him. As the Referee found,
“Schjodt arguably influenced the direction of the grand jury” and Russell admitted
he allowed Schjodt to cross professional lines that he should not have. Russell’s
reliance on Schjodt continued after the grand jury dissolved. Russell considered
him an expert witness, but failed to disclose his involvement in the case to the
defense. Russell even consulted Schjodt on the terms of the plea agreements.
[¶44.] The United States Supreme Court recently stated:
Prosecutors have a special “duty to seek justice, not merely to
convict.” LSBA, Articles of Incorporation, Art. 16, EC 7–13
(1971); ABA Standards for Criminal Justice 3–1.1(c) (2d ed.
1980). Among prosecutors' unique ethical obligations is the duty
to produce Brady evidence to the defense. See e.g., LSBA,
Articles of Incorporation, Art. 16, EC 7–13 (1971); ABA Model
Rule of Prof. Conduct 3.8(d) (1984). An attorney who violates
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his or her ethical obligations is subject to professional discipline,
including sanctions, suspension, and disbarment. See e.g.,
LSBA, Articles of Incorporation, Art. 15, §§ 5, 6 (1971); id., Art.
16, DR 1–102; ABA Model Rule of Prof. Conduct 8.4 (1984)
Connick v. Thompson, __ U.S. __, __, 131 S. Ct. 1350, 1362-63, __ L. Ed. 2d __
(2011). “Prosecutors are not only equipped but are also ethically bound to know
what Brady entails and to perform legal research when they are uncertain.” Id. at
1363.
[¶45.] In making the release of the grand jury transcript a part of the plea
agreements and in preparing an order for Judge Tice’s signature allowing its
release, Russell admits that he did not research the law. SDCL 23A-5-16 clearly
prohibited its release, and Russell misled the trial court by submitting an order to
an inattentive judge upon improper grounds. Russell’s release of the transcript was
an effort to protect his personal reputation from increasing public criticism.
[¶46.] Growing public criticism of Russell also spurred his decision to issue a
press release critical of Judge Davis and blaming Judge Davis for the delay in the
Fast Horse case. “A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge[.]” South Dakota Rules of Professional
Conduct, Rule 8.2.
APPROPRIATE DISCIPLINE
[¶47.] In determining appropriate discipline this Court considers the
seriousness of the misconduct by the attorney, the likelihood of repeated instances
of similar misconduct, and the prior record of the attorney. Laprath, 2003 S.D. 114,
¶ 77, 670 N.W.2d at 64. In addition, “[i]n determining an appropriate discipline,
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this Court reviews the totality of the attorney/client relationship to determine if any
mitigating factors warrant consideration.” In re Discipline of Dorothy, 2000 S.D. 23,
¶ 39, 605 N.W.2d 493, 504. “We take the action necessary to protect the public from
future harm at the hands of an attorney whose conduct is under question.” In re
Discipline of Light, 2000 S.D. 100, ¶ 12, 615 N.W.2d 164, 168.
[¶48.] Misconduct constitutes grounds for attorney discipline. SDCL 16-19-
33. According to SDCL 16-19-35:
Misconduct shall be grounds for:
(1) Disbarment by the Supreme Court;
(2) Suspension by the Supreme Court for an appropriate fixed
period of time, or for an appropriate fixed period of time
and an indefinite period concurrently or thereafter to be
determined by the condition imposed by the judgment. No
suspension shall be ordered for a specific period in excess of
three years;
(3) Placement on a probationary status by the Supreme Court
for a stated period, or until further order of the court, with
such conditions as the court may specify;
(4) Public censure by the Supreme Court; or
(5) Private reprimand by the Disciplinary Board.
(Emphasis added.)
[¶49.] Although this Court has not adopted the ABA Standards for Imposing
Lawyer Sanctions, we do consult them for guidance. Light, 2000 S.D. 100, ¶ 13, 615
N.W.2d at 168. Rule 9.1 of these standards provides that “[a]fter misconduct has
been established, aggravating and mitigating circumstances may be considered in
deciding what sanction to impose.”10
10. Aggravating factors include: a) prior disciplinary offenses; b) dishonest or
selfish motive; c) a pattern of misconduct; d) multiple offenses; e) bad faith
obstruction of the disciplinary proceeding by intentionally failing to comply
with rules or orders of the disciplinary agency; f) submission of false evidence,
(continued . . .)
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[¶50.] The Referee concluded that Russell violated the Rules of Professional
Conduct by failing to use his independent judgment in investigating the golf course
project and by using the office of State’s Attorney to enhance and defend his
political career and further Schjodt’s political aims. The Referee concluded that
Russell’s misconduct in publicizing and putting the grand jury transcript on his
website and issuing a press release critical of Judge Davis warranted public
censure.
[¶51.] In recommending public censure the Referee recognized that Russell’s
misconduct was mitigated by his lack of a prior disciplinary record, his cooperation
with the Disciplinary Board, his relative inexperience in the practice of law, and his
____________________________
(. . . continued)
false statements, or other deceptive practices during the disciplinary process;
g) refusal to acknowledge wrongful nature of conduct; h) vulnerability of
victim; i) substantial experience in the practice of law; j) indifference to
making restitution; k) illegal conduct, including that involving the use of
controlled substances. ABA Standards for Imposing Lawyer Sanctions, Rule
9.22 (1992).
Mitigating factors include: a) absence of a prior disciplinary record; b)
absence of dishonest or selfish motive; c) personal or emotional problems; d)
timely good faith effort to make restitution or to rectify consequences of
misconduct; e) full and free disclosure to the disciplinary board or cooperative
attitude toward proceedings; f) inexperience in the practice of law; g)
character or reputation; (h) physical disability; (i) mental disability or
chemical dependency including alcoholism or drug abuse when: (1) there is
medical evidence that the respondent is affected by a chemical dependency or
mental disability; (2) the chemical dependency or mental disability caused
the misconduct; (3) the respondent's recovery from the chemical dependency
or mental disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and (4) the recovery arrested the misconduct and
recurrence of that misconduct is unlikely; (j) delay in disciplinary
proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m)
remoteness of prior offenses. ABA Standards for Imposing Lawyer Sanctions,
Rule 9.32 (1992).
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willingness to concede that his conduct was improper and he made mistakes. The
Referee (and the Disciplinary Board) recommended that Russell be publicly
censured.
[¶52.] This Court has considered numerous attorney discipline cases which
have resulted in public censure. See Dorothy, 2000 S.D. 23, ¶ 62, 605 N.W.2d at 512(Amundson, J., concurring) (listing and analyzing South Dakota public censure
cases.) While none of the cases involved prosecutorial misconduct they are
instructive because this Court balanced misconduct with factors including
admission of wrong doing, cooperation with the Disciplinary Board, a lack of prior
misconduct, and the unlikelihood of recurrence. Id.[¶53.] The release of the grand jury transcripts and the press release critical
of Judge Davis was the product of a relatively inexperienced prosecutor who was
caught up in the volatile political environment in Hot Springs and who allowed
himself to be seduced by it. Balanced against this, however, is that Russell
immediately admitted his errors, cooperated with the Disciplinary Board, and
completed an advanced legal degree. In addition, other than this proceeding,
Russell has no other disciplinary record. Accordingly, public censure is appropriate.
[¶54.] Russell is to pay all costs of this proceeding. SDCL 16-19-70.2.
[¶55.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
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