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IN THE MATTER OF THE DISCIPLINE OF MICHAEL P. ORTNER,
As An Attorney At Law.

[2005 SD 83]

ORIGINAL PROCEEDING

GENE N. LEBRUN of
Lynn, Jackson, Shultz & Lebrun
Rapid City, South Dakota

Attorneys for Michael P. Ortner.

ROBERT B. FRIEBERG

Beresford, South Dakota

Attorney for Disciplinary Board.

Argued May 24, 2005
Opinion Filed 6/29/2005

#23548 GILBERTSON, Chief Justice
[¶1.] Following the release of this Court's decision in Reaser v. Reaser, 2004 SD 116, 688 NW2d 429, the Disciplinary Board of the State Bar of South Dakota generated a complaint against Michael P. Ortner. Following its investigation and hearing in the matter, the Disciplinary Board filed findings of fact, conclusions of law, and a formal accusation against Ortner.  This Board recommended that Ortner be publicly censured for his violation of the Rules of Professional Conduct.  Ortner admitted the allegations in the formal accusation that followed.  When an accused attorney admits the allegations, this Court "shall proceed to render such judgment as the case requires."  SDCL 16-19-68.
GENERAL BACKGROUND
[¶2.] Ortner is sixty-three years old.  He graduated from the University of South Dakota with a degree in political science in 1965.  Following graduate work and a fellowship, he worked for the governor of Iowa, was an assistant city manager in Sioux City, Iowa, and was a researcher for the Midwestern Office of the Council of State Government.  He began working for South Dakota's Legislative Research Council in 1970, eventually becoming its director.
[¶3.] In 1976 Ortner entered the University of South Dakota's School of Law.  He was one of fourteen graduating in December 1978 and said that he was at the top of these fourteen.
[¶4.] Since being admitted to the State Bar of South Dakota Ortner has practiced in Hot Springs, South Dakota.  His focus consists mainly of real estate work, estate planning and probate.  In the course of his practice he has represented "numerous clients in divorce and family law areas," although he attempts to avoid divorces involving minor children and never handles contested custody cases.
[¶5.] Ortner has been the subject of three prior complaints before the Disciplinary Board.  Two were dismissed as frivolous.  For the third, in 2001, he received an admonition for a technical, unintentional violation of the Rules of Professional Conduct which govern conflicts of interest.
[¶6.] Throughout his career Ortner has been active in non-profit service organizations, community boards, bar committees and state and county commissions.  His outside interests include fishing and scuba diving.
FACTS
[¶7.] Throughout their marriage David and Jami Reaser lived on David's family ranch where he worked. For twenty years Ortner helped the family with branding.  When David initiated divorce proceedings in 1999 he retained Ortner to represent him.  Jami did not have a lawyer.  Ortner was aware that Jami's mother and stepfather were South Dakota lawyers and he assumed that they were assisting her.
[¶8.] Ortner prepared a stipulation regarding child custody, child support, alimony and property division which David and Jami signed.  Pursuant to this stipulation David received custody of the children and relieved Jami of any child support obligation.  Jami waived alimony.  Ortner was aware of Circuit Judge Kern's policy to require child support in divorce decrees because when he presented the stipulation and decree of divorce to Judge Kern, he specifically "advised her there was something unusual about this particular stipulation for this divorce and that was that there was no provision in it for child support." Judge Kern refused to grant the divorce due to the omission of any provision for child support.
[¶9.] Ortner advised David that whoever did not have primary custody of the children would have to pay child support. Since David was receiving custody, Ortner advised him that he could simply tear up any checks he received for child support.  David discussed the proposal with Jami who, according to Ortner, definitely wanted something in writing.
[¶10.] Ortner revised the stipulation to include a provision for child support:
[Jami] is required to pay child support for the minor children in the total amount of $250.00 per month, except during those summer months when she has the children for visitation. During those summer months, [David] shall pay $250.00 per month for support of the minor children.  Said support shall continue until the younger child graduates from high school or turns 19 years of age, whichever is earlier.
The judgment decreeing dissolution of marriage that Ortner drafted incorporated the stipulation, "it being the intention of this court that all of the terms and conditions of said Stipulation be made an express part of this Decree of Dissolution."
[¶11.] At the time Ortner drafted these documents he also drafted a "Private Contractual Agreement Between Parties" which provided:
It is hereby stipulated and agreed by and between David R. Reaser, the Plaintiff, and Jami D. Reaser, the Defendant, subject to the approval of the above-named Court, that in the event the Court does see fit to grant [David] hereto a dissolution as prayed for in his Complaint, the same shall be upon the terms and conditions as set forth in the Stipulation and Agreement, except that the parties further privately stipulate and agree between themselves as follows:
I.
That [David] agrees that he will not seek to collect the Two Hundred Fifty Dollars ($250.00) per month child support ordered to be paid by [Jami].
II.
[Jami] stipulates and agrees that during those times when she has custody of the minor children for visitation purposes in the summer for one month or longer that she will not seek to collect child support from [David].
III.
Both parties stipulate and agree and contract as set forth above even though the Court itself has ordered payment of child support.  The basis of the agreement for the dissolution of the marriage was that no child support be paid and this agreement carries out that earlier agreement reached by the parties.
[¶12.] On March 29, 1999 Jami came to Ortner's office and signed the revised stipulation and the private contractual agreement.  David signed the documents the next day.  Judge Kern signed the judgment decreeing dissolution of marriage which incorporated the revised stipulation on April 1.  It was filed on April 6, 1999.  At no time did Ortner advise Judge Kern of the private contractual agreement.
[¶13.] In May 2002 Jami moved for a change in custody and sought child support.  Circuit Judge Thomas Trimble heard the motions and learned of the existence of the private contractual agreement.  He denied the motion for a change of custody and advised David that he was free to seek child support from Jami.
[¶14.] In the fall of 2002 David initiated a child support action against Jami.  The child support referee's recommendations that Jami pay current child support and arrearages were adopted by the circuit court. Jami's motions to set aside the interim order of support and eliminate the arrearages were heard by Judge John J. Delaney.  Judge Delaney learned about the private contractual agreement and expressed serious concerns about the deception created by it.  During this proceeding Ortner filed an "Affidavit Regarding Motion to Deny Claim for Arrears" which was dated April 1, 2003.
[¶15.] Ortner's affidavit states:
Comes now Michael Ortner, and for his Affidavit states and affirms as follows:
1.
That Affiant is an attorney in practice in Hot Springs;

2.
That Affiant has been active in a private general practice of law in Hot Springs for over twenty years;

3.
That in the course of his practice Affiant has represented numerous clients in divorce and family law matters;

4.
That in the early part of 1999 he spoke with David Reaser about preparing pleadings for divorce;

5.
That the Stipulation and Divorce Decree were prepared by Affiant following his conversations with Mr. Reaser;

6.
That Mr. Reaser instructed Affiant that the documents were to be prepared to reflect that no ongoing child support would be required to be paid by his ex -wife, now known as Jami Twiss;

7.
That Affiant initially submitted the Stipulation and Decree of Divorce for review by the Court with no requirement for payment of ongoing child support;

8.
That after a conference with the Court the Stipulation and Decree of Divorce were modified to include a child support provision;

9.
That prior to submitting the second Decree to the Court Affiant drafted a document of private agreement between Mr. Reaser and Ms. Twiss;

10.
That under the terms of that private agreement, Ms. Twiss was to have no duty to pay ongoing support despite the language of the Divorce Decree;

11.
That it was Affiant's understanding that one of the reasons the parties

had entered into such an agreement for no payment of support was that Ms. Twiss had agreed not to contest custody of the two minor children, and Ms. Twiss had also agreed not to seek any alimony or other property settlement despite the fact that the couple had been married for over thirteen years;

12.
That after preparing the agreement of non-support, the parties signed it in Affiant's office, [Ms. Twiss] on March 29, 1999 and [Mr. Reaser] on March 30, 1999;

13.
Affiant informed [Ms. Twiss] that even though the private agreement should be binding on the parties themselves it would not be binding upon the Court;

14.
The parties also requested that Affiant retain the original of the signed Private Contractual Agreement in his office where it still remains;

15.
That after the parties entered into this written agreement the Decree of Divorce was subsequently signed by the Circuit Court Judge.


Further Affiant sayeth not.
[¶16.] Judge Delaney filed findings of fact, conclusions of law and an order vacating judgment in regard to child custody, visitation, alimony and property settlement on November 18, 2003.  Judge Delaney did so essentially sua sponte, because of the private contractual agreement and the court's findings of fraud upon the court.[1]
[¶17.] David appealed. In Reaser v. Reaser he contended "that the court erred because the motion to set aside this decree was not made within one year as required by SDCL 15-6-60(b)." Id., 2004 SD 116 at ¶ 15, 688 NW2d at 434.
[¶18.] In Reaser this Court noted that because David did not challenge Judge Delaney's findings that Judge Kern would not have entered the decree had she known of the private contractual agreement, "it does not appear that there is any dispute that this decree was obtained by a fraud upon the court." Id., 2004 SD116 at ¶ 17, 688 NW2d at 435.  The Court noted that SDCL 15-6-60(b) does not set any rigid time limit on a court to set aside a judgment for fraud upon the court.
This type of fraud is different than that associated with fraud upon the parties.
'Fraud upon the court' should, we believe, embrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.  .  .  In addition, it has been said that '[i]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b), .  .  .  it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.'  Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to 'influence' the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud.
Id., 2004 SD 116 at ¶ 19, 688 NW2d at 435 (quoting Gifford v. Bowling, 86 SD 615, 625, 200 NW2d 379, 384 (1972).
[¶19.] In Reaser v. Reaser we examined Ortner's conduct in light of Judge Delaney's findings: Here, under Judge Delaney's findings, the actions of these parties and the attorney are egregious conduct involving corruption of the judicial process itself.  Considering those findings, this fraudulent conduct may have violated a criminal statute, and it certainly violated the Rules of Professional Conduct for attorneys.
* * *
Moreover, under the trial court's findings, Ortner's preparation of, and participation in, the concealment of the private agreement violated the Rules of Professional Conduct. "Because the courts of this state must rely upon the assistance of attorneys to ascertain the truth of matters before them, attorneys must be fair and forthright with the courts."  Matter of Discipline of Mines, 523 NW2d 424, 426 (SD 1994) (citing Matter of Discipline of Schmidt, 491 NW2d 754, 755 (SD 1992)).  Moreover, "the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth.  It requires every attorney to be fully honest and forthright." In re Discipline of Wilka, 2001 SD 148, ¶15, 638 NW2d 245, 249. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Mines, 523 NW2d at 426.
Ortner's conduct appears to violate that duty of candor toward the court.  Rule 3.3 of the
Rules of Professional Conduct provides in relevant part that:
(a)
        A lawyer shall not knowingly:
. . .


(3)         offer evidence that the lawyer knows to be false.  If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal. . . .

(d)
        In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.


Here, the trial court's findings indicate that both Ortner and the parties were dishonest in their representations and disclosures to the original divorce court.  Their participation in, preparation of, and failure to disclose the "private agreement" allowed them to circumvent the original trial court's express direction.  It was egregious conduct that corrupted the judicial process through the involvement of an officer of the court.  This type of fraud upon the court is not subject to the Rule 60(b) one year time limitation. Consequently, Judge Delaney was authorized, upon his own motion, to vacate the relevant portions of the decree despite the fact that it had been in effect for over four years.
Id., 2004 SD 116 at ¶ 19-23, 688 NW2d at 435-436.
[¶20.] This Court's opinion in Reaser v. Reaser was handed down on October 13, 2004.  Six days later, on October 19, 2004, Ortner wrote to Judge Kern:
Dear Judge Kern:
As hollow as it may seem at this late date, I cannot adequately express how deeply I
apologize to you for the way I mishandled the Reaser divorce five and one -half years ago.
My heart and emotions totally got in the way of my brain and legal training.  I had been going to brandings with David Reaser and his father for nearly twenty years at that time, and David was so adamant about not accepting any child support from his wife that I went ahead and prepared the private agreement for them to sign.  I had no intent to defraud the Court or violate any laws.  While trying to help a client I have totally jeopardized twenty-six years of law practice and nearly forty years of public service and service to the public.
You had always treated me with total honesty and fairness and that is what makes me so sick and ashamed about the way I handled this matter.
When this came to light in April 2003, I did an affidavit admitting to everything that had occurred.  Since that date I have not had a decent night of sleep.
In twenty-six years there has been one private reprimand from the Disciplinary Board and two investigations in criminal cases which were found to be frivolous and were sealed.
What I did in this case clearly violated the Rules of Professional Responsibility, and I am ready to accept whatever action is recommended by the Disciplinary Board.
Respectfully submitted,
/s/
MICHAEL P. ORTNER
LAWYER

[¶21.] The Disciplinary Board generated a complaint against Ortner based upon his conduct in Reaser v. Reaser. In its Notice of Hearing the Disciplinary Board informed Ortner that:
The allegations indicate possible violations of the Rules of Professional Conduct, including but not limited to:
Rule 1.7 concerning conflicts of interest;
Rule 3.3 concerning candor;
Rule 8.4(a), (c) and (d) concerning misconduct and violation of SDCL 16-16

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