In Re Reinstatement of Voorhees

403 N.W.2d 738, 1987 S.D. LEXIS 256

• Court: South Dakota Supreme Court
• Decided: April 8, 1987
• Docket: 15541
• Status: Published

Opinions

MILLER, Justice.

Petitioner, Merlin Voorhees, was disbarred from the practice of law by order of this Court dated July 9, 1980. The facts surrounding his disbarment are published in Matter of Voorhees, 294 N.W.2d 646 (S.D.1980). Generally stated, Voorhees had been convicted in the United States District Court for the District of South Dakota of the felony offense of making and using false documents to obtain excessive payments under a federal drought relief program.¹ He received probation which he successfully completed and from which he has now been discharged.

On September 15, 1986, he petitioned the Disciplinary Board of the State Bar of South Dakota (Board) for reinstatement to the practice of law. That Board conducted a hearing on September 26,1986, and heard evidence in the form of testimony and affidavits. It found that since his conviction and disbarment Voorhees had led an “exemplary life” and that he has “the moral qualifications for admission to practice.” The Disciplinary Board, apparently being concerned regarding Voorhees’ “competency and learning of law,” recommended that reinstatement be conditioned upon his successful passing of the South Dakota Bar Exam, including the Multi-State Professional Responsibility Examination, the Multi-State Bar Examination, and the South Dakota Essay Examination.

At the hearing before this Court on January 12, 1987, Voorhees and his counsel recognized the importance of demonstrating competence, but urged that in view of the fact that he had previously passed the South Dakota Bar exam upon his original admission to practice in 1969, coupled with his practice of law until 1972 or 1973, it would be too harsh to require him to take the examination again. Rather, they suggest that we establish some type of mandatory attendance at various Continuing Legal Education (CLE) programs of the State Bar prior to reinstatement.

A disbarred member of the bar of this state, in order to be reinstated, must demonstrate by clear and convincing evidence not only that he has fit moral qualifications, but also that he has “... competency and learning in law required for admission to practice law in this state and that his resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest.” SDCL 16-19-84.²

At the hearing before the Disciplinary Board, the bulk of the evidence centered around Voorhees’ moral fitness. The Board found and concluded that he had demonstrated by clear and convincing evidence that he was morally fit. We agree wholeheartedly with that determination.

However, recognizing Voorhees’ failure to demonstrate his legal competence by clear and convincing evidence, the Disciplinary Board recommended the requirement of passing the bar examination. We agree.

On several occasions in the past, we have dealt with the issue of moral fitness qualifications upon reinstatement. See Petition of Morrison, 45 S.D. 123, 186 N.W. 556 (1922); In re Kaos, 39 S.D. 4, 162 N.W. 370 (1917); In re Egan, 24 S.D. 301, 123 N.W. 478 (1909). This is the first time we have addressed legal competence in a reinstatement proceeding, and, obviously, this is the first time we have required the taking of a second bar examination as a condition of reinstatement by a disbarred attorney.³ Voorhees has not raised the question of our power to impose this sanction — however, we deem it clear that we have such authority. The Supreme Court of our sister state of North Dakota considered the issue and held it possessed the inherent authority to require re-examination. Application of Christianson, 253 N.W.2d 410 (N.D.1977).

See also In re Stevens, 197 Cal. 408, 241 P. 88 (1925). We agree with its conclusion.

With the authority to license, suspend, disbar, and reinstate lawyers comes the awesome responsibility to the public of this state to assure, to the best of our ability, that lawyers have basic competence to advise and represent their clients. We intend to respond to that responsibility in a serious, conscientious manner.

Voorhees has not practiced law since 1972 or 1973, when he sold out his practice in Onida, South Dakota, to take over the operation and management of a feedlot. (It should be noted that his law practice from his admission in 1969 until its sale was principally as a business/tax practice with a limited amount of criminal law activity as Sully County State’s Attorney). In addition to the obvious deficiencies caused by absence from the practice, per se, a multitude of changes have occurred in the substantive and procedural laws during his self-inflicted absence. For example, during that period the South Dakota Rules of Evidence (SDCL ch. 19-9 to -18), South Dakota Rules of Civil Appellate Procedure (SDCL ch. 15-26A), and South Dakota Code of Criminal Procedure (SDCL Title 23A) were adopted. Important changes were also made in the areas of family law (see, e.g., SDCL 25-4-2, -17.1, -17.2), civil procedure (see, e.g., SDCL 15-17-35), criminal law, particularly in the area of homicide (see SDCL ch. 22-16), and the Uniform Commercial Code (see, e.g., SDCL ch. 57 A-9). The Uniform Probate Code was adopted (1974 S.D.Sess.Laws ch. 196) and repealed (1976 S.D.Sess.Laws ch. 175) and procedures for independent administation of estates (SDCL ch. 30-18A), self-proved wills (SDCL 29-2-6.1) and spousal elective share (SDCL ch. 30-5A) were enacted. Changes were also made in tort law, including repeal of the guest statute (1978 S.D. Sess.Laws ch. 240). Finally, there were revisions in the area of future interests (SDCL ch. 43-5), including repeal of the common-law rule against perpetuities (SDCL 43-5-8).

As the Supreme Courts of North Dakota in Christianson, supra, and Wisconsin in State v. Brodson, 11 Wis.2d 124, 103 N.W.2d 912 (1960), observed, there seems to be no better method for us to insure competence than successful passage of the bar exam.⁴

Therefore, being satisfied of Voorhees’ moral qualifications, but needing to be reassured of his competency to practice law, we adopt the recommendations of the Disciplinary Board. Petitioner will be reinstated upon his completion of the following conditions: (1) Upon his taking and successfully passing the South Dakota Bar Examination including the Multi-State Professional Responsibility Examination, the Multi-State Bar Examination, and the South Dakota Essay Examination, and (2) upon his paying the State Bar dues.

WUEST, C.J., and MORGAN and SABERS, JJ., concur. HENDERSON, J., concurs in part and dissents in part.

1 . See United States v. Voorhees, 593 F.2d 346 (8th Cir.1979), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 665 (1979), for more details regarding his criminal conviction.

2 . We remind members of the bar and public of the important oath each member takes as a condition of admission to the bar:

"I do solemnly swear, or affirm, that:

I will support the Constitution of the United States and the Constitution of the state of South Dakota;

I will maintain the respect due to courts of justice and judicial officers;

I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;

I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge or approval;

I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice.”

SDCL 16-16-18.

3 . We have, however, recently made a second bar examination a condition of readmittance of a suspended attorney. See Matter of the Discipline of Coacher, #15445, argued 11-18-86, judgment suspending attorney issued November 20, 1986.

4 . In Supreme Court Rule 86-33, reprinted in SDCL ch. 16-16 app., we required that the list of subjects to be covered in the bar examination be as follows: (1) on the South Dakota Essay Examination, one or more questions on civil procedure, commercial law, corporations and partnerships, family law, remedies and wills, together with the optional subjects of agency, conflicts of law, debtor-creditor and trusts; (2) on the Multi-State Objective Examination, dealing with the subjects of constitutional law, contracts, criminal law (procedure & substance), evidence, real property and torts; and (3) the subject of legal ethics on the Multi-State Professional Responsibility Examination.