In Re the Discipline of Voorhees

294 N.W.2d 646, 1980 S.D. LEXIS 337

• Court: South Dakota Supreme Court
• Decided: July 9, 1980
• Docket: 12544
• Status: Published

Opinions

MORGAN, Justice.

Merlin Voorhees was admitted to practice before the Bar of this state on July 31, 1969. He practiced law in Onida, South Dakota, until 1972 or 1973 when he sold out his practice and took over the management of a feedlot situated in Onida and denominated the Missouri Slopes Feedlot Inc. (MSF), of which he was one of the initial investors.¹ He was thus engaged when he committed the offense of making and using false documents to obtain excessive payments under a federal drought relief program. He was indicted on three counts under 18 U.S.C. § 1001;² convicted on one and acquitted on two. Such a violation constitutes a felony under federal law, which is defined as a serious crime for disciplinary purposes under SDCL 16-19— 36.³

Upon notification of the conviction this court, pursuant to SDCL 16-19-37⁴ and SDCL 16-19-39,⁵ respectively, suspended Voorhees’ license to practice and referred the matter to the Disciplinary Board for formal proceedings. After the Disciplinary Board filed its findings and recommendation and Voorhees filed his answer through counsel and exhausted his appellate remedies, the matter was brought on for argument before this court. Under the provisions of SDCL 16-19-39 the sole issue to be determined is the extent of the final discipline to be imposed.⁶

The range of discipline authorized by SDCL 16-19-35 goes from public censure, to probationary status, to suspension for a period no longer than three years, to disbarment. The Disciplinary Board has recommended disbarment.

We first examine the factual background of the charge on which Voorhees was convicted. The feedlot which Voorhees left his law practice to manage was a large operation where cattlemen could board and feed out cattle. The feedlot had a capacity of 17,000 to 18,000 head and employed thirteen to twenty-two people.

When the severe drought of 1975-76 hit the area, the Federal Government, through the Agricultural Stabilization Conservation Service (ASCS), set up a hay transportation assistance program commencing on June 17, 1976. The program provided payment to farmers to facilitate the bringing of roughage to South Dakota. Under the program a farmer was paid considerably more for hauling by means of his own or a leased vehicle rather than by commercial hauler at set rates. A December 1976 ASCS ruling required that in order to qualify for the higher payments for a leased vehicle the lease must provide that the farmer-lessee must assume some risk such as employment of drivers, insurance, gas, oil, or maintenance.

In November 1976 Voorhees, as manager of MSF, entered into a lease agreement with a trucker who was a regular commercial hauler on a regular set payment per mile basis. He admitted that after the December 1976 ASCS rule he forged a revision of the lease that would make MSF eligible for the higher payments which he then filed with the ASCS. The trucker denied ever seeing or signing the lease in question.

The response to the Disciplinary Board’s report, filed by Voorhees’ attorney, was in great part an attack upon the government’s farm programs, as though the ill-conceived nature of a program to get money to farmers in depression or drought or in election years was some excuse for bilking the government. Counsel suggests that Voo-rhees was guilty more of naivete, stupidity and lack of perception than dishonesty. The fact is that the jury found him guilty of willfully, knowingly, and unlawfully making and using, and aiding, abetting, counseling, inducing and procuring the making and use of a false writing and document knowing the same to contain materially false, fictitious, and fraudulent statements.

We are guided by the repeated holdings of this court that “[t]he purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose misconduct has proved them unfit to be entrusted with duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing.” In Matter of Walker, 254 N.W.2d 452, 455 (S.D.1977); In re Weisensee, 88 S.D. 544, 224 N.W.2d 830 (1975); In re Rude, 88 S.D. 416, 221 N.W.2d 43 (1974).

As we said in the Matter of Parker, 269 N.W.2d 779, 780 (S.D.1978):

As officers of this court, attorneys are charged with the obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney’s oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude. .

. To determine whether discipline other than disbarment would be appropriate, the circumstances surrounding the conviction will be considered, i. e., whether the conduct involved dishonesty, fraud, deceit, or misrepresentation; . whether the conduct adversely reflects upon the attorney’s integrity, competency, or fitness to practice law.

There can be no question that the making and use of a forged document to obtain greater cash benefits reeks of dishonesty, fraud, deceit, and misrepresentation. Furthermore, the preparation and filing of documents falls in an area so akin to law practice that it casts grave doubt on the perpetrator’s competency or fitness to practice law. In an age where the legal profession is under heavy attack we must have regard for the image of the profession as a whole. A slap on the wrist for the clearly felonious handling of a business act which is cognitive of many acts that a practicing attorney has to perform daily would not lend credibility to the high ethical standards of the profession. Nor can it be suggested that the fact that Voorhees was acting in a purely commercial capacity rather than as a practicing attorney when he perpetrated the offense in any manner lessens the need for grave discipline, for that would be the same as saying that if you cannot make a dishonest buck in the commercial world try the legal profession.

We adopt the recommendation of the Disciplinary Board and determine that a judgment shall forthwith be entered disbarring Merlin Voorhees, revoking his license to practice, and striking his name from the Clerk’s roll of attorneys.

WOLLMAN, C. J., and DUNN and FOSHEIM, JJ., concur. HENDERSON, J., dissents.

1 . The reference in the dissent to a community feedlot appears to be a misnomer. Although locally owned, the feedlot was an organization entered into for profit.

2 . 18 U.S.C. § 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

3 . SDCL 16-19-36 provides, in pertinent part:

The clerk of any court in this state in which an attorney is convicted of a serious crime shall within ten days of said conviction transmit a certificate thereof to the Supreme Court. The term “serious crime” shall include any felony

4 . SDCL 16-19-37 provides, in pertinent part:

If any attorney has been convicted of a serious crime as defined in § 16-19-36, the Supreme Court shall enter an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.

5 . SDCL 16-19-39 provides:

Upon the receipt of a certificate of conviction of an attorney for a serious crime, the Supreme Court shall, in addition to suspending him in accordance with the provisions of § 16-19-37, also refer the matter to the board or the attorney general for the institution of a formal proceeding in which the sole issue to be determined shall be the extent of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded.

6 . See Note 5, supra.