“Not Conducting A Baby-Sitting Service”

An attorney who had practiced in the area of commercial litigation with Winston & Strawn and Skadden Arps decided to return to his native South Dakota. He took and passed the South Dakota bar exam and was associated with a firm. The lawyer worked with a series of law firms and then became president and chief executive office of a corporation. He worked hard–in the office from 7 am to 7 pm, went home to attend to his children until bedtime, and back to the office until 2 am. Overextended, he neglected a client matter, failing to file suit before the statute of limitations ran. He reached an private agreement approved by the Disciplinary Board that allowed him to continue to practice. After a second lapse, he entered into a second private agreement that prohibited further practice other than with the corporation. He violated that agreement by accepting (and neglecting) a case. When disciplinary charges were filed, he filed untimely responses and offered excuses found to be “disingenuous at best.”

Based on the course of conduct, the South Dakota Supreme Court declined to disbar but ordered a three-year suspension: “the Disciplinary Board is not conducting a baby-sitting service for wayward attorneys who have lost their way.” The court noted his pro bono activities and service as church president.

The private agreement process (which seems similar to what in D.C. would be called a “diversion” agreement) defers the disposition of a bar complaint with conditions but a concession of misconduct. The complaint is dismissed when the conditions are satisfied. This case describes a series of failures to either honor or follow through with the agreed-upon conditions on the part of the lawyer. At one point, the attorney offered evidence that he was doing well and had performed in a production of “Oklahoma.” Ultimately, he was never able to manage his workload to avoid the recurring neglect and procrastination. (Mike Frisch)