In Re the Discipline of Pier
This text of 472 N.W.2d 916 (In Re the Discipline of Pier) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This is a disciplinary proceeding under the provisions of SDCL ch. 16-19 against Steven L. Pier (Respondent), a member of the State Bar of South Dakota. By formal accusation filed on March 6, 1991, Respondent was accused of expending client funds for his own personal use and benefit from June 23, 1989 to October 25, 1989. This is a violation of the South Dakota Rules of Professional Conduct; in particular the Disciplinary Rules within Rule 1.15;1 and the Disciplinary Rules within Rule 8.4.2
Respondent answered the formal accusation on April 1, 1991. The answer generally admitted the wrongdoing but offered various affirmative defenses to be considered in mitigation of his actions. ,
The Disciplinary Board determined that Respondent was retained as counsel by Olga Anderson (Anderson) to handle the estate of her deceased husband on or about May 25, 1989. On or about June 23, 1989, while acting as attorney for Anderson, Respondent went to the First National Bank [917]*917of Freeman, South Dakota and cashed two certificates of deposit owned by Anderson and her deceased husband. Subsequently, Respondent secured a bank money order in lieu of the before-mentioned certificates in the amount of $46,079.14. Shortly thereafter, Respondent deposited this bank money order into his personal checking account. Respondent used these funds for his own personal use and benefit beginning on June 23, 1989, until October 25, 1989, when all funds had been expended. Respondent was eventually asked about the whereabouts of the funds by Anderson and a banker friend, James Pesek (Pesek). He lied to both of them in the fall of 1989 and in the spring of 1990, stating that the funds were on deposit with the Edward D. Jones Investment Company in Yankton, South Dakota. He further lied to Anderson and Pesek about the location of the funds during the morning of September 17,1990, claiming that there has been some kind of mix-up at the Livestock State Bank. Later that day Respondent admitted that he took the money for his own personal use and benefit. On or about September 21, 1990, Respondent borrowed sufficient funds from his family and reimbursed Anderson $50,760.75 for the money taken plus interest. The Disciplinary Board has recommended Respondent’s disbarment.
We need not give deference to the Board’s recommendation for sanctions. The ultimate decision for discipline of members of the State Bar rests with this Court. Matter of Discipline of Stanton, 446 N.W.2d 33 (S.D.1989); Matter of Discipline of Dana, 415 N.W.2d 818 (S.D.1987).
As we have stated many times, the purpose of disciplinary proceedings is not to punish an attorney but to protect the public from further wrongdoing by an attorney. Matter of Discipline of Kirby, 336 N.W.2d 378 (S.D.1983). Appropriate discipline in any given case necessarily depends upon the seriousness of the misconduct by the attorney and the likelihood of repeated instances of similar misconduct. Id. at 380.
We find, and Respondent admitted, that his conversion of these funds for his own use was willful and knowing. Conversion of client funds is one of the most serious acts of lawyer misconduct. The foundation of an attorney’s relationship with clients and the legal system is trust. Converting a client’s funds violates this fundamental principle of the lawyer-client relationship. Further, it places the lawyer’s personal pecuniary interest above the client’s interests, which the lawyer has undertaken to protect and promote. Therefore, discipline is warranted. We have held that failure to account for a client’s funds is grounds for revocation of an attorney’s license. In re Rude, 221 N.W.2d 43 (S.D.1974). Other jurisdictions state that such misconduct should warrant the most severe discipline— license revocation. See, Committee on Professional Ethics and Conduct v. Piazza, 405 N.W.2d 820 (Iowa 1987); Nebraska State Bar Ass’n. v. Strom, 189 Neb. 146, 201 N.W.2d 391 (1972); Kentucky Bar Ass’n. v. Grogan, 554 S.W.2d 81 (Ky.1977).
An attorney who violates a trust by misappropriating funds of clients strikes at the heart of the lawyer-client relationship. In the present case, Respondent deliberately took a substantial amount of funds belonging to his client, without her knowledge and used it for his own purposes. This conduct is egregious, displaying an unfitness to practice law. Therefore, we determine that Respondent’s misconduct warrants disbarment. Although Respondent admits that he has done wrong, he maintains his misconduct was mitigated by a negative cash flow in a newly formed law practice and financial hardship caused by domestic troubles with his wife. However, as this Court stated in Rude: “Financial problems, however, do not excuse nor do they justify a course of conduct in the handling of a client’s funds that leads to the misallocation or withholding, however temporary, of such funds.”
We are convinced that the public must be protected from future acts of this nature, and, thus, we do not hesitate to rule that disbarment is justified in this case.
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472 N.W.2d 916, 1991 S.D. LEXIS 109, 1991 WL 124464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-discipline-of-pier-sd-1991.