Petition of Draeger

463 N.W.2d 346, 1990 S.D. LEXIS 164, 1990 WL 181722

• Court: South Dakota Supreme Court
• Decided: November 21, 1990
• Docket: 17223
• Status: Published

Opinions

SABERS, Justice.

On January 23, 1985, attorney Richard W. Draeger was convicted of shoplifting. On September 3, 1985, this Court suspended Draeger from the practice of law for three years. On February 9, 1990, Drae-ger petitioned the Disciplinary Board of the South Dakota Bar for reinstatement pursuant to SDCL 16-19-84.¹ Following a hearing, the Board recommended against Drae-ger’s reinstatement. Draeger contests the Board’s recommendation.

Draeger bears the burden of demonstrating to the Board “by clear and convincing evidence that he has the moral qualifications, competency and learning” necessary to the practice of law. SDCL 16-19-84. While we must give “careful consideration” to the Board’s judgment whether Draeger has met his burden, we are not bound to adopt the Board’s judgment. In re Husby, 426 N.W.2d 27, 28 (S.D.1988); SDCL 16-19-22.

We believe that Draeger has demonstrated his moral rehabilitation with clear and convincing evidence undiminished by anything to the contrary in the record. He has presented this Court with eight affidavits from attorneys, his employer and other responsible persons with whom he is involved in community projects attesting the reliability of his character, the progress he has made in overcoming his problems and his moral fitness to resume the practice of law.

We find especially credible the lengthy testimony at the Board hearing of Dr. Donald Burnap, a psychiatrist who has known Draeger for seven years and who treated him professionally for nearly three years following his shoplifting conviction. That testimony makes it clear that Draeger’s theft of twelve record albums in 1985 was not a calculated decision to steal for personal gain but a dysfunctional response to emotional depression and personality disorder. Having helped Draeger to address the root causes of the behavior over some ninety counseling sessions, Dr. Burnap is satisfied that Draeger has assumed responsibility for recognizing the onset of his depression and for taking steps to respond to it constructively. Dr. Burnap testifies that the chances of Draeger’s shoplifting again are “minimal.”

The Board also commissioned Dr. Stephen Manlove to perform an independent evaluation of Draeger. Dr. Manlove’s report was largely consistent with Dr. Bur-nap’s testimony, except that Dr. Manlóve termed Draeger a “recovering Kleptomaniac,” which he characterized as being analogous to a recovering alcoholic.

While Draeger’s learning and competence to practice law have not really been in issue and the record shows some effort on his part to keep his professional knowledge current, it has been five years since he was active as an attorney. Therefore our judgment reinstating Draeger to the practice of law is conditioned on his successful completion of the South Dakota Bar Examination, including the Multistate Bar and the Multistate Professional Responsibility portions. SDCL 16-19-87. Drae-ger’s reinstatement is also conditioned on his payment of the costs of these proceedings and the appropriate State Bar dues. Id.; Husby, 426 N.W.2d at 29; In re Voorhees, 403 N.W.2d 738, 740 (S.D.1987).

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

1 . The record shows that Draeger notified clients of his suspension pursuant to SDCL 16-19-78 and 16-19-79, that he notified opposing counsel in pending cases pursuant to SDCL 16-19-79, that he filed a timely affidavit of compliance with this Court pursuant to SDCL 16-19-80, that he maintained records of his compliance pursuant to SDCL 16-19-81, and that his actions otherwise conformed to the terms of his suspension.