Client Acquitted; Lawyer Sanctioned

The South Dakota Supreme Court has imposed a 30-day suspension of an attorney, rejecting a three month suspension recommended by a referee

Frauenshuh graduated from Washburn University School of Law in Kansas. He then moved to Minnesota, where he practiced law for over thirty years. During this time, he experienced several serious health conditions. He was diagnosed with Post-Traumatic Stress Disorder (PTSD) as a result of a 1984 burn accident, and he suffered and recovered from a debilitating stroke in 2011. Frauenshuh was first admitted to the South Dakota Bar in 2015. He had offices in Ortonville, Minnesota, and Watertown, South Dakota, but only his Watertown office remains open at this time. For most of his career, Frauenshuh has been a solo practitioner. His practice currently focuses primarily on probate, criminal defense, and mediation. He is an experienced trial attorney, having tried more than 100 jury trials.

Respondent represented the defendant in a two criminal trials.

Frauenshuh was privately retained in 2019 to represent K.L. on charges of sexual contact with a child under sixteen and attempted sexual contact with a child under sixteen filed in Lincoln County. Lincoln County Deputy State’s Attorney William Golden was the lead prosecutor on the charges against K.L. The case proceeded to jury trial on October 27, 2020. Before the trial concluded, the circuit court granted Golden’s motion for a mistrial after finding that Frauenshuh had repeatedly violated several court orders and evidentiary rulings. A second trial began on March 8, 2021. During Frauenshuh’s opening statement, the court again found that he violated the court’s prior evidentiary ruling. The jury returned a verdict of not guilty on both counts, and the court entered a judgment of acquittal for K.L.

The prosecutor filed the bar complaint.

In the bar proceeding, he claimed he did not intentionally violate court orders but the court concluded

…he repeatedly violated the court’s orders throughout the first trial and again during his opening statement at the start of the second trial.

During voir dire in the first trial, Frauenshuh broached multiple forbidden topics, drawing back-to-back sustained objections. Then, during the trial, he attempted to ask about the timeline for the alleged victim’s school counseling despite an order forbidding the parties from addressing counseling or mental health at all. He also asked his expert witness a legal question bearing on the defendant’s intent in the case even though there were numerous pretrial hearings and bench conferences during which the court clarified that he could not ask such questions. Even if Frauenshuh was truthful when he explained that leaving his microphone on and failing to sequester witnesses were honest mistakes, there were multiple other violations of the court’s orders—after Frauenshuh admitted they were clear and after he was admonished by the circuit court. These belie Frauenshuh’s claims that he did not knowingly disobey the circuit court orders.

Sanction

Counsel for Frauenshuh identified mitigating factors in considering the appropriate discipline for the unprofessional conduct. In particular, he asked that we consider that any misconduct was not toward Frauenshuh’s client and that he obtained a favorable result for her without charge in the second trial. Frauenshuh may have done right by his client by not charging for the second trial, but Frauenshuh’s unwillingness to take responsibility for his actions and his prior conduct support the imposition of a period of suspension.

Respondent had a record of prior discipline in Minnesota. (Mike Frisch)