#25490-GAS

2011 S.D. 17

                             IN THE SUPREME COURT

                                    OF THE

                         STATE OF SOUTH DAKOTA

                                    * * * *

                             IN THE MATTER OF THE

                      DISCIPLINE OF LANCE RUSSELL,

                        AS AN ATTORNEY AT LAW.

                                    * * * *

                             ORIGINAL PROCEEDING

                                    * * * *




ROBERT B. FRIEBERG
Disciplinary Board Counsel
Beresford, South Dakota                       Attorney for Disciplinary
                                              Board.

MICHAEL K. SABERS of
Clayborne, Loos, Strommen
 & Sabers, LLP
Rapid City, South Dakota                      Attorney for Lance Russell.


                                    * * * *




                                              ARGUED JANUARY 10, 2011

                                              OPINION FILED 04/20/11
#25490

SEVERSON, Justice

[¶1.]         This is a disciplinary proceeding against Lance Russell, a member of

the State Bar of South Dakota. The Disciplinary Board of the State Bar

recommended that Russell be publicly censured. The Referee, Retired Justice

Robert A. Miller, also recommended a public censure. In his brief in response to the

Referee’s findings of fact, conclusions of law, and recommendation, Russell asks this

Court to dismiss the Board’s and the Referee’s recommendation. At oral argument,

however, Russell’s counsel told the Court that a “private censure” with conditions

imposed to ensure that the conduct resulting in these proceedings does not reoccur

would be appropriate. 1

                             GENERAL BACKGROUND

[¶2.]         Russell graduated from the University of South Dakota School of Law

in 1999. He passed the South Dakota bar examination and was admitted to

practice law on January 10, 2000.




1.      A “private censure” is not a recognized form of discipline by the Supreme
        Court. A “private reprimand” is an authorized form of discipline for the
        Disciplinary Board. SDCL 16-19-35. Further, “[i]f it is determined after an
        investigation by the board that the complaint is meritorious, but that formal
        disciplinary proceedings are not warranted, the board and the attorney may
        agree in writing to hold the proceedings in abeyance for a definite period,
        provided the attorney throughout the period complies with specified
        reasonable conditions.” SDCL 16-19-60. This provision is inapplicable at the
        current stage of the disciplinary process. Id. The Supreme Court, however,
        can impose conditions if it determines that placement on probationary status
        is the appropriate discipline. SDCL 16-19-35(3).

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[¶3.]        After graduating from law school, Russell clerked for the circuit court

in Deadwood, South Dakota for a year. He then entered the private practice of law

in Hot Springs, South Dakota. In 2000 he was elected State’s Attorney for Fall

River County. Russell was reelected in 2004. In 2008 Russell chose not to seek a

third term. Instead, he ran for and was elected to the South Dakota Legislature,

representing District 30 in the House of Representatives. Russell was reelected to

this position in 2010.

[¶4.]        During the pendency of this disciplinary proceeding, the only one ever

filed against him, Russell completed a LL.M. program in environmental law at the

University of Denver. While Russell told the Disciplinary Board that he would like

to practice in some capacity in the areas of environmental law and natural

resources law, he told this Court that his plans are uncertain until this disciplinary

matter is resolved.

[¶5.]        The focus of this disciplinary proceeding was two-fold. First it

examined Russell’s use of the grand jury to investigate a controversial golf course

expansion project in Hot Springs and Russell’s release of the grand jury transcript

to the public. Second, it examined Russell’s issuance of a press release criticizing

and blaming Judge Jeff Davis for the trial delay in the homicide case of State v. Fast

Horse.

                                   GRAND JURY

[¶6.]        In 2002 the Common Council of Hot Springs entered an agreement

with Steve and Carla Simunek for the construction of an additional nine holes to




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the Hot Springs golf course. 2 The project was fraught with controversy and divided

the community and Common Council.

[¶7.]         In November 2006, Russell was approached by a number of people

including Steven Schjodt, a civil engineer for the Army Corps of Engineers and a

contributor to Russell’s campaigns, and asked to draft a petition to recall Hot

Springs Mayor Carl Oberlitner for misconduct, malfeasance, corruption, oppression,

and gross partiality in the sale of the Carnegie Library and the development of the

new nine holes to the municipal golf course. Russell asked for Schjodt’s input in

drafting the petition and Schjodt suggested revisions.

[¶8.]         By 2007 the South Dakota Department of Legislative Audit had

completed an investigation of the golf course project at the direction of the Attorney

General’s office. No criminal action resulted. The Department of Revenue was in

the midst of auditing the records of the project’s general contractor, and the city of

Hot Springs was in litigation with the general contractor concerning the cost of the

project and sufficiency of the work performed.

[¶9.]         Russell was aware of the investigation, audit, and civil litigation when

a city councilman, Don Patitz, and Schjodt met with Russell and expressed their

dissatisfaction with Mayor Oberlitner’s handling of the golf course issue and what

they believed were billing irregularities by the Simuneks. Patitz and Schjodt were

not satisfied with the other investigations and were adamant that Mayor Oberlitner

and the Simuneks needed to be punished.



2.      See Okerson v. Common Council of Hot Springs, 2009 S.D. 30, 767 N.W.2d
        531.

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[¶10.]         Due in large measure to Patitz’s and Schjodt’s urging, Russell applied

for and received an order calling a grand jury to convene on July 27, 2007, primarily

to investigate the golf course project. At that time, Russell was in his second term

as State’s Attorney and seventh year as a prosecutor.

[¶11.]         During the course of the grand jury proceedings Schjodt testified twice.

Because of Schjodt’s background in dealing with federal construction projects and

his knowledge of construction costs and taxes, Russell considered Schjodt to be “my

expert essentially.” 3

[¶12.]         Throughout the grand jury proceedings Russell regularly consulted

with Schjodt. Schjodt provided Russell with his personal and professional opinions

regarding the scope and quality of the contractor’s work on the golf course. Schjodt

also provided Russell with suggestions as to witnesses, and grand jury strategy.

Further, Schjodt encouraged Russell to continue the investigation as a means to

enhance Russell’s reputation. The Referee found that the extensive communication

between Schjodt and Russell demonstrated “that Schjodt arguably influenced the

direction of the grand jury proceedings.” Russell admitted that he gave Schjodt

information from the grand jury proceedings. Schjodt shared some of this

information, by unsigned letter, with a citizen who did not agree with his viewpoint.

[¶13.]         While the grand jury was impaneled and continuing its investigation of

the golf course project, Judge Davis, the presiding judge in the Seventh Circuit,

began to hear rumors “that what was taking place in the Grand Jury was known on




3.       Russell also consulted with two independent golf course experts.

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the street.” Because of his concern for the integrity of the grand jury process and

the secrecy of it, Judge Davis drove to Hot Springs in April 2008 to meet with

Russell. Judge Davis told Russell:

               You’ve abused your authority as a State’s Attorney. There are
               things on the street that should not be there out of the Grand
               Jury process. I don’t know what all you’ve got going. You’ve got
               30 days to wrap it up because I am pulling your Grand Jury on
               you.

[¶14.]         On May 20, 2008, the grand jury indicted the golf course contractor,

Steven Simunek, and his wife, Carla, as co-defendants. The Simuneks were

charged with seven Class 6 felonies, 4 two Class 5 felonies, 5 and seven Class 1

misdemeanors. 6 Mayor Oberlitner was charged with one Class 2 misdemeanor. 7

[¶15.]         The defendants retained experienced counsel who began discovery and

discussed the cases with Russell. Schjodt continued to advise and consult with

Russell and Russell intended to use Schjodt as an expert at trial. Inexplicably,

Russell did not consider Schjodt’s written documents or his involvement in the




4.       Making a false or fraudulent contractors’ excise tax return in attempting to
         defeat or evade contractors’ excise tax. SDCL 10-46A-8, SDCL 10-46A-
         13.1(1).

5.       Attempted grand theft of public funds by false instrument, SDCL 4-9-5; SDCL
         22-30A-17, or, in the alternative, attempted grand theft. SDCL 22-30A-1,
         SDCL 22-30A-17(1).

6.       Failing to file returns or pay tax, SDCL 10-46A-13, SDCL 10-46A-13.1(2); tax
         evasion by false or fraudulent return. SDCL 10-46-37.

7.       Neglect of duty or misconduct by municipal officer. SDCL 9-14-37.


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proceedings to be exculpatory as impeachment evidence affecting witness credibility

and did not disclose these matters to the defense.8

[¶16.]         After consulting Schjodt, on August 18, 2008, Russell offered to settle

the charges against Steven Simunek (Simunek) on the following terms:

               A. That Simunek plead guilty to any four counts of his choosing;

               B. The remainder of the charges would be dismissed;

               C. Upon Simunek’s plea, the State would dismiss all charges
                  against his spouse;

               D. The State would not resist a request for a suspended
                  imposition of sentence;

               E. The entire grand jury proceedings leading to the indictment of
                  Mr. and Mrs. Simunek including the transcripts and exhibits
                  will be unsealed and filed in the criminal case;

               F. The defendants would to the satisfaction of the Department
                  of Revenue, file or refile sales, use and excise tax returns;
                  and,

               G. The State and defendant reserve the right to
                  aggravate/mitigate at the time of sentencing.

(Emphasis added.)

[¶17.]         Russell also offered to settle the charges against Mayor Oberlitner on

the following terms:

               A. That the defendant waive any and all rights to a speedy trial;

               B. That the defendant obey all laws, etc.;

               C. That the defendant write a letter of apology to the citizens of
                  Hot Springs which must be approved by [Russell] prior to the


8.       See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
         and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
         (1972).

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                offer becoming binding with a publication date in the Hot
                Springs Star after November 4, 2008;

             D. That the defendant agree that the entire grand jury
                proceedings leading to the indictment of defendants Steven
                and Carla Simunek, including the transcripts and exhibits,
                will be unsealed, filed and become a public record; and

             E. That if the defendant fulfills all of the terms the State will on
                December 31, 2008 dismiss with prejudice the charge of
                Neglect of Duty or Misconduct by a Municipal Officer.

(Emphasis added.)

[¶18.]       Russell had never before put a condition in a plea agreement calling

for the public release of grand jury transcripts. He admits that he did not research

the law concerning the restrictions on disclosure of grand jury proceedings. SDCL

23A-5-16 governs restrictions on disclosure of grand jury proceedings. Russell

believed that releasing the grand jury transcripts would inform the public of the

facts of the golf course project and dispel problems within the community of Hot

Springs. Simuneks and Mayor Oberlitner did not testify before the grand jury.

[¶19.]       Simunek accepted and pleaded guilty to four misdemeanors. His

attorney testified he did not contest the provisions on release of the grand jury

proceedings as the terms of the plea agreement were favorable to his client and he

had no authority to release the proceedings in any event. Judge Tice sentenced

Simunek to six months in jail with all but three days suspended and imposed a fine

and costs. All of the charges against Simunek’s wife were dismissed. Mayor

Oberlitner also accepted Russell’s offer and wrote a letter of apology that was

published in the Hot Springs Star.




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[¶20.]       Litigating parties cannot agree to modify state law. But

presumably relying on the plea agreement, on November 18, 2008, Judge Tice

signed an “order for opening grand jury proceedings” that Russell prepared.

This order said:

                    The Court, after being fully advised in the premises,
             hereby
                    ORDERS that the Grand Jury transcript and exhibits
             leading to the Indictments of Carl Oberlitner and Steve
             Simunek shall be considered public records open for public
             inspection exclusively through the Fall River County State’s
             Attorney’s Office; however, any information deemed by the Fall
             River County State’s Attorney to be unrelated to the
             Indictments will not be considered public records and may not
             be disclosed to the public.

Russell did not notify any of the defendants or their counsel that he secured this

order. Russell also did not advise them when he made the transcripts available to

the public and provided copies to the Rapid City Journal and Hot Springs Star

newspapers. The order improperly opened grand jury proceedings beyond any

legitimate needs of a prosecutor contrary to SDCL 23A-5-16 and also improperly

delegated authority to the State’s Attorney.

[¶21.]       Prior to the end of Russell’s term as State’s Attorney, Schjodt directed

Russell to get rid of Schjodt’s notes and emails to Russell because Schjodt did not

want Russell’s successor “going through that stuff and causing me trouble.” Russell

did shred records of the Fall River State’s Attorney’s office including documents

relating to the golf course project. He testified that he received guidance from the

Attorney General’s office.

[¶22.]       In January 2009, Russell was no longer Fall River County’s State’s

Attorney. He was a member of the South Dakota House of Representatives.

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According to Russell several newspaper articles had accused him of abusing his

power as State’s Attorney. He believed that people were intent on destroying him

politically and personally. Russell testified:

             And I tried to defend myself. And the way in which I figured I
             could defend myself, the only way, is with the facts. I had an
             order from a judge that I believed was valid and I put [the grand
             jury transcript] on my website [www.representativerussell.com].
             Should I have in retrospect? No I should not have. It was
             unnecessary. I had gained a conviction. But I was getting beat
             up so badly that I felt I had to do something.

[¶23.]       On February 19, 2009, Judge Davis, the presiding judge who

impaneled the grand jury, signed and filed an “order to seal transcript” which

provided:

                    This matter having come before the Court upon
             information provided to the Court as to the release of the grand
             jury proceedings from Fall River Grand Jury #07-02; the release
             of the grand jury transcript and exhibits is not related to any
             prosecutorial duties as is required by SDCL 23A-5-16; the
             release of the grand jury transcript and exhibits is not related to
             any valid judicial proceeding as is required by SDCL 23A-5-16;
             no grounds exist for the release of the grand jury transcript; the
             prior order of the Court was improperly submitted to the Court
             upon improper grounds; the Court having reviewed SDCL 23A-
             5-16 and the Court finding that the release of the grand jury
             transcript and exhibits as to Fall River Grand Jury #07-02 are
             in violation of said law; the Court being fully informed as to the
             law, facts and circumstances related to the matters relevant
             herein; it is hereby

                    ORDERED, that the Fall River County Clerk of Courts
             shall immediately seal any and all grand jury transcripts and
             exhibits which were produced or are related to any and all
             matters considered by Fall River County Grand Jury #07-02;
             and it is further

                    ORDERED, that the Fall River County State’s Attorney’s
             Office shall not release any grand jury transcripts and exhibits
             which were produced or are related to any and all matters


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             considered by Fall River County Grand Jury #07-02, unless by
             further order of this Court[.]

[¶24.]       The Fall River State’s Attorney who succeeded Russell was able to

retrieve most, but not all, of the grand jury transcripts released by the State’s

Attorney’s office. Certain media refused to return the copies. Russell removed the

transcript from his website.

                                     FAST HORSE

[¶25.]       A high profile homicide case State v. Fast Horse had been pending

since 2006. Russell was the prosecutor and Tim Rensch the defense attorney with

Judge Davis presiding.

[¶26.]       The case had been pending for some time due to: a) an intermediate

appeal to the Supreme Court of an order Judge Davis entered; b) incomplete

discovery; c) incomplete jury questionnaires; and, d) the need to locate a trial site

outside of the small Fall River County courtroom due to the need to call a large

number of prospective jurors.

[¶27.]       Russell sought a trial date to get the Fast Horse case tried before the

end of his term. However, Judge Davis and defense counsel Rensch were not

prepared to try the case in December 2008 because of Russell’s lag in completing

required disclosures to the defense and the lack of a suitable site for the trial until

the beginning of 2009.

[¶28.]       In early December 2008, Russell issued a press release which criticized

Judge Davis and, according to an article posted on the Rapid City Journal’s website,

“implied that [Judge Davis] dragged [his] feet in setting a trial date for accused

murderer Shannon Fast Horse.”

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                                     REFEREE

[¶29.]       In ultimately recommending the public censure of Russell, the Referee

concluded:

             A. [Russell] exercised poor judgment and violated the Rules of
                Professional Conduct Rule 3.8 concerning special
                responsibilities of prosecutors; Rule 4.4(a) concerning respect
                for rights of third persons; Rule 8.2(a) concerning judicial
                officials; and Rule 8.4(a)(d) concerning professional
                misconduct. He used his office as State’s Attorney: (a) to
                further local political aims of his associate and advisor,
                Schjodt and others who shared opposition to the golf course
                project; (b) to enhance and/or defend his own political career;
                and (c) by failing to use his independent professional
                judgment in the conduct of the investigation of the golf
                course project.

             B. [Russell’s] misconduct (1) in publicizing and putting the
                grand jury transcript on his web site and (2) in preparing and
                in issuing the press release criticizing Judge Davis for the
                delay in the trial of the Fast Horse case, standing alone,
                warrant the discipline that this Referee is recommending.

             C. [Russell’s] misconduct is mitigated by the absence of a prior
                disciplinary record, a cooperative attitude toward the Board
                in its proceedings, his relative inexperience in the practice of
                law, and his willingness to concede that his conduct was
                improper and that he made mistakes. [Russell] who intends
                to complete a masters program and principally practice law
                in the areas of environment and natural resources has
                indicated that he has no present intention of again seeking a
                position as a public prosecutor.

                                 STANDARD OF REVIEW

[¶30.]       “Our decisions in disciplinary cases are based upon the record made at

the hearing before the referee, not upon the basis of the report and recommendation

of the [Disciplinary Board] or the Attorney General.” In re Kunkle, 88 S.D. 269, 283,

218 N.W.2d 521, 529 (1974).



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[¶31.]       The findings of the Referee are given careful consideration by this

Court because the Referee had the advantage of encountering the witnesses first

hand. In re Discipline of Laprath, 2003 S.D. 114, ¶ 41, 670 N.W.2d 41, 55. This

Court has said that:

             [W]hile the findings of the referee are not conclusive, we must
             consider them carefully because the referee had the advantage
             of seeing and hearing the witnesses. If the referee’s findings are
             supported by the evidence, they will not be disturbed by the
             Supreme Court.

Matter of Discipline of Dana, 415 N.W.2d 818, 822 (S.D. 1987) (quoting In re

Rensch, 333 N.W.2d 713, 714 (S.D. 1983)).

             On the other hand, we give no particular deference to a referee’s
             recommended sanction. The ultimate decision for discipline of
             members of the State Bar rests with this [C]ourt. In re Hopp,
             376 N.W.2d 816 (S.D. 1985); [In re Willis, 371 N.W.2d 794 (S.D.
             1985)]; SDCL 16-19-22. Therefore, although we may adopt the
             findings of a referee, it does not necessarily follow that we will
             also adopt his recommendations. Rensch, [333 N.W.2d at 714];
             [In re Strange, 366 N.W.2d 495 (S.D. 1985)].

Id.

                                   DUE PROCESS

[¶32.]       “[D]isciplinary proceedings have been termed quasi-criminal in

nature.” Kunkle, 88 S.D. at 280, 218 N.W.2d at 527 (citing In Re Ruffalo, 390 U.S.

544, [551,] 88 S. Ct. 1222, [1226,] 20 L. Ed. 2d 117 (1968)). This Court’s authority to

conduct the proceedings, however, stems from the constitution, S.D. Const. art. V, §

12, statute, SDCL 16-16, and the inherent power of the Court to regulate the

practice of law. Id. This inherent power “must of course be exercised in a manner

that comports with due process.” Id.



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[¶33.]       Russell contends that he was not afforded due process before the

Disciplinary Board. He contends that issues that had not been noticed were central

to the case, he did not receive specification of rule subsections that he allegedly

violated, and the Disciplinary Board Chair was biased.

[¶34.]       Russell contends he had no notice of questions by the Disciplinary

Board concerning Russell’s alleged domestic violence and the delay in bringing the

Fast Horse case to trial. It was Russell, however, who brought these issues to the

Disciplinary Board’s attention. In his response to the complaint, Russell attached

exhibits which included a photocopy of a letter from a group of citizens to Governor

M. Michael Rounds inquiring about the allegations and investigation of alleged

domestic violence as well as photocopies of newspaper articles detailing the

allegations of domestic violence and the delay in bringing Fast Horse to trial.

Russell’s submission to the Disciplinary Board opened the door to questioning him

about the issues. The Disciplinary Board has the power and duty to investigate any

alleged ground for discipline “called to its attention.” SDCL 16-19-29(1).

[¶35.]       Russell also contends that he did not receive specific enough notice of

the rules and their subsections that he allegedly violated. Regardless of whether

disciplinary proceedings are considered civil or quasi-criminal in nature, the

complaint must “adequately inform” the respondent of the nature of the charge

against him. Kunkle, 88 S.D. at 274, 218 N.W.2d at 524.

             Even in criminal cases the charge is sufficient if it enables a
             person of common understanding to know what is intended from
             the language contained therein and if it apprises a defendant
             with reasonable certainty of the accusation against him so that
             he may prepare his defense.


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Id., 88 S.D. at 274-75, 218 N.W.2d at 524.

[¶36.]       Russell received fair notice of what he was facing and was not misled

or prevented from preparing an adequate defense. “[I]t is incumbent on an attorney

to know the disciplinary rules regulating his profession.” Samuel T. Reaves,

Procedural Due Process Violations in Bar Disciplinary Proceedings, 22 J. Legal

Prof. 351, 354 (1998) (quoting State v. Turner 538 P.2d 966, 972 (Kan. 1975)).

[¶37.]       Finally, Russell contends that he was denied due process because the

Board Chair was assigned to the complaint, directed the investigation, and

participated in the hearing and decision making process. See Rules of Procedure of

the Disciplinary Board of the State Bar of South Dakota. SDCL app. 16-19.

[¶38.]       Members of the Disciplinary Board “shall refrain from taking part in

any proceeding in which a judge, similarly situated, would be required to abstain.”

SDCL 16-19-28. There is no suggestion that the Board’s Chair had prior

independent knowledge of Russell’s case and no suggestion that her impartiality

might be questioned. Canon 3(E), Code of Judicial Conduct. SDCL app. 16-2.

Russell requested that Disciplinary Board member Roger Tellinghuisen recuse

himself which he did. Russell made no such request of the Board Chair.

[¶39.]       In Kunkle, the constitutionality of SDCL ch. 16-19 (the disciplinary

process) was challenged as violative of due process because the procedure placed

“the court in the untenable position of being the investigator, the grand jury or

indictor, the prosecutor and the final arbiter and judge in disciplinary actions.” 88

S.D. at 279, 218 N.W.2d at 526. This Court noted:

             We think the procedure condemned in the Murchison case is a
             far cry from our statutory procedures for conducting disciplinary

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             actions. Granted that disciplinary proceedings have been
             termed quasi-criminal in nature, . . . they are sui generis in the
             sense that this court’s authority to conduct them stems from the
             inherent power of the court to regulate the practice of law.
             Although this inherent power must of course be exercised in a
             manner that comports with due process, we must recognize the
             fact that the courts occupy a traditionally unique position vis-à-
             vis the members of the legal profession. This court has the
             responsibility of protecting the public from the unfit, the
             incompetent and the dishonest attorney, and the duty to
             maintain the high ethical standard of the legal profession. This
             court has no interest other than to accomplish that purpose. We
             have no financial interest in the outcome of any disciplinary
             action. This court has no interest in any given disciplinary
             action other than to see that all legitimate complaints are
             adequately investigated and that proper proceedings are
             brought if in the court’s opinion the results of the investigation
             are such as to warrant the filing of a formal complaint. We
             consider our authority to review and weigh the results of a
             preliminary investigation to be as much a shield of protection for
             the attorney who may be accused by those having improper,
             vindictive motives as it is an aid to the court to carry out its
             solemn obligation to protect the public from those few members
             of the bar who by their conduct have demonstrated that they are
             not fit to be members of the profession. In short, we consider the
             authorities cited by respondent to be inapposite and we hold
             that the procedure set forth in SDCL 16-19 does not
             unconstitutionally deprive an accused attorney of his right to
             due process of law.

Id., 88 S.D. at 280-81, 218 N.W.2d at 527-28 (internal citations omitted).

                        THE ROLE OF THE PROSECUTOR

[¶40.]       The United States Supreme Court has explained that a prosecutor “is

the representative not of an ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is as compelling as its obligation to govern at

all; and whose interest, therefore, in a criminal prosecution is not that it shall win a

case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.

Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935).


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[¶41.]         The Minnesota Supreme Court in addressing the role of a prosecutor

has stated:

               We have repeatedly stated that a “prosecutor is a minister of
               justice whose obligation is to guard the rights of the accused as
               well as to enforce the rights of the public.” E.g., State v.
               Cabrera, 700 N.W.2d 469, 475 (Minn. 2005); State v. Salitros,
               499 N.W.2d 815, 817 (Minn. 1993) (quoting I ABA Standards for
               Criminal Justice, The Prosecution Function 3-1.1 and
               Commentary at 3.7 (2d ed. 1979)) (internal quotations omitted).
               The duty of a prosecutor is to see that justice is done on behalf of
               both the victim and defendant. Berger v. United States, 295 U.S.
               78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). Therefore, a
               prosecutor does not “represent” the victim. See id. A prosecutor
               represents the public interest and the sovereign and his goal is
               to see that justice is done. Id. This places a special burden on
               prosecutors because they should prosecute with “earnestness
               and vigor,” but must “refrain from improper methods calculated
               to produce a wrongful conviction.” Id.

State v. Penkaty, 708 N.W.2d 185, 196-197 (Minn. 2006).

[¶42.]         “A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate.” Comment, Rule 3.8, South Dakota Rules of

Professional Conduct. SDCL app. 16-18. Rule 3.8 of the Rules of Professional

Conduct recognizes the special responsibilities of a prosecutor: 9



9.       In State v. Brandenburg, 344 N.W.2d 702, 706 (S.D. 1984), this Court
         recognized the role and responsibilities of a prosecutor under the prior Code
         of Professional Responsibility:

               Ethical Consideration 7-13 of the Code of Professional
               Responsibility set forth in SDCL 16-18, Appx., provides:

               The responsibility of a public prosecutor differs from that of the
               usual advocate; his duty is to seek justice, not merely to convict.
               This special duty exists because: (1) the prosecutor represents
               the sovereign and therefore should use restraint in the
               discretionary exercise of governmental powers, such as in the
               selection of cases to prosecute; (2) during trial the prosecutor is
                                                                (continued . . .)
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             The prosecutor in a criminal case shall:
              (a) refrain from prosecuting a charge that the prosecutor
                  knows is not supported by probable cause;
              (b) make reasonable efforts to assure that the accused has
                  been advised of the right to, and the procedure for
                  obtaining counsel and has been given reasonable
                  opportunity to obtain counsel;
              (c) not seek to obtain from an unrepresented accused a waiver
                  of important pretrial rights, such as the right to a
                  preliminary hearing;
              (d) make timely disclosure to the defense of all evidence or
                  information known to the prosecutor that tends to
                  exculpate the guilt of the accused, and, in connection with
                  sentencing, disclose to the defense and to the tribunal all
                  unprivileged exculpatory information known to the
                  prosecutor, except when the prosecutor is relieved of this
                  responsibility by a protective order of the tribunal;
              (e) not subpoena a lawyer in a grand jury or other criminal
                  proceeding to present evidence relating to the lawyer’s
                  representation of a past or present client unless the
                  prosecutor reasonably believes:
                  (1) the information sought is not protected from disclosure
                       by any applicable privilege;
                  (2) the evidence sought is essential to the successful
                       completion of an ongoing investigation or prosecution;
                       and
                  (3) there is no other feasible alternative to obtain the
                       information;
              (f) except for statements that are necessary to inform the
                  public of the nature and extent of the prosecutor’s action
                  and that serve a legitimate law enforcement purpose,

____________________________
(. . . continued)
               not only an advocate but he also may make decisions normally
               made by an individual client, and those affecting the public
               interest should be fair to all; and, (3) in our system of criminal
               justice the accused is to be given the benefit of all reasonable
               doubts. With respect to evidence and witnesses, the prosecutor
               has responsibilities different from those of a lawyer in private
               practice: the prosecutor should make timely disclosure to the
               defense of available evidence, known to him, that tends to
               negate the guilt of the accused, mitigate the degree of the
               offense, or reduce the punishment. Further, a prosecutor should
               not intentionally avoid pursuit of evidence merely because he
               believes it will damage the prosecutor’s case or aid the accused.

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                  refrain from making extrajudicial comments that have a
                  substantial likelihood of heightening public condemnation
                  of the accused and exercise a reasonable care to prevent
                  investigators, law enforcement personnel, employees of
                  other persons assisting or associated with the prosecutor in
                  a criminal case from making an extrajudicial statement
                  that the prosecutor would be prohibited from making
                  under Rule 3.6 or this Rule.

[¶43.]       In this case it is clear that Russell had a fundamental

misunderstanding of his role as a prosecutor, who he represented as a prosecutor,

and the independent judgment that a prosecutor must exercise. Russell allowed his

personal and political views of the golf course project and the mayor’s handling of

the issue to cloud his independent judgment as a prosecutor. Russell allowed

Schjodt, a political supporter who shared Russell’s views, to influence the decision

to convene the grand jury. Through the course of the grand jury proceeding, Russell

relied on Schjodt for advice on witnesses, evidence, and strategy and shared

information from the grand jury proceedings with him. As the Referee found,

“Schjodt arguably influenced the direction of the grand jury” and Russell admitted

he allowed Schjodt to cross professional lines that he should not have. Russell’s

reliance on Schjodt continued after the grand jury dissolved. Russell considered

him an expert witness, but failed to disclose his involvement in the case to the

defense. Russell even consulted Schjodt on the terms of the plea agreements.

[¶44.]       The United States Supreme Court recently stated:

             Prosecutors have a special “duty to seek justice, not merely to
             convict.” LSBA, Articles of Incorporation, Art. 16, EC 7–13
             (1971); ABA Standards for Criminal Justice 3–1.1(c) (2d ed.
             1980). Among prosecutors' unique ethical obligations is the duty
             to produce Brady evidence to the defense. See e.g., LSBA,
             Articles of Incorporation, Art. 16, EC 7–13 (1971); ABA Model
             Rule of Prof. Conduct 3.8(d) (1984). An attorney who violates

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             his or her ethical obligations is subject to professional discipline,
             including sanctions, suspension, and disbarment. See e.g.,
             LSBA, Articles of Incorporation, Art. 15, §§ 5, 6 (1971); id., Art.
             16, DR 1–102; ABA Model Rule of Prof. Conduct 8.4 (1984)

Connick v. Thompson, __ U.S. __, __, 131 S. Ct. 1350, 1362-63, __ L. Ed. 2d __

(2011). “Prosecutors are not only equipped but are also ethically bound to know

what Brady entails and to perform legal research when they are uncertain.” Id. at

1363.

[¶45.]       In making the release of the grand jury transcript a part of the plea

agreements and in preparing an order for Judge Tice’s signature allowing its

release, Russell admits that he did not research the law. SDCL 23A-5-16 clearly

prohibited its release, and Russell misled the trial court by submitting an order to

an inattentive judge upon improper grounds. Russell’s release of the transcript was

an effort to protect his personal reputation from increasing public criticism.

[¶46.]       Growing public criticism of Russell also spurred his decision to issue a

press release critical of Judge Davis and blaming Judge Davis for the delay in the

Fast Horse case. “A lawyer shall not make a statement that the lawyer knows to be

false or with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of a judge[.]” South Dakota Rules of Professional

Conduct, Rule 8.2.

                            APPROPRIATE DISCIPLINE

[¶47.]       In determining appropriate discipline this Court considers the

seriousness of the misconduct by the attorney, the likelihood of repeated instances

of similar misconduct, and the prior record of the attorney. Laprath, 2003 S.D. 114,

¶ 77, 670 N.W.2d at 64. In addition, “[i]n determining an appropriate discipline,

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this Court reviews the totality of the attorney/client relationship to determine if any

mitigating factors warrant consideration.” In re Discipline of Dorothy, 2000 S.D. 23,

¶ 39, 605 N.W.2d 493, 504. “We take the action necessary to protect the public from

future harm at the hands of an attorney whose conduct is under question.” In re

Discipline of Light, 2000 S.D. 100, ¶ 12, 615 N.W.2d 164, 168.

[¶48.]         Misconduct constitutes grounds for attorney discipline. SDCL 16-19-

33. According to SDCL 16-19-35:

               Misconduct shall be grounds for:
                (1) Disbarment by the Supreme Court;
                (2) Suspension by the Supreme Court for an appropriate fixed
                    period of time, or for an appropriate fixed period of time
                    and an indefinite period concurrently or thereafter to be
                    determined by the condition imposed by the judgment. No
                    suspension shall be ordered for a specific period in excess of
                    three years;
                (3) Placement on a probationary status by the Supreme Court
                    for a stated period, or until further order of the court, with
                    such conditions as the court may specify;
                (4) Public censure by the Supreme Court; or
                (5) Private reprimand by the Disciplinary Board.

(Emphasis added.)

[¶49.]         Although this Court has not adopted the ABA Standards for Imposing

Lawyer Sanctions, we do consult them for guidance. Light, 2000 S.D. 100, ¶ 13, 615

N.W.2d at 168. Rule 9.1 of these standards provides that “[a]fter misconduct has

been established, aggravating and mitigating circumstances may be considered in

deciding what sanction to impose.”10



10.      Aggravating factors include: a) prior disciplinary offenses; b) dishonest or
         selfish motive; c) a pattern of misconduct; d) multiple offenses; e) bad faith
         obstruction of the disciplinary proceeding by intentionally failing to comply
         with rules or orders of the disciplinary agency; f) submission of false evidence,
                                                               (continued . . .)
                                             -20-
#25490

[¶50.]         The Referee concluded that Russell violated the Rules of Professional

Conduct by failing to use his independent judgment in investigating the golf course

project and by using the office of State’s Attorney to enhance and defend his

political career and further Schjodt’s political aims. The Referee concluded that

Russell’s misconduct in publicizing and putting the grand jury transcript on his

website and issuing a press release critical of Judge Davis warranted public

censure.

[¶51.]         In recommending public censure the Referee recognized that Russell’s

misconduct was mitigated by his lack of a prior disciplinary record, his cooperation

with the Disciplinary Board, his relative inexperience in the practice of law, and his


____________________________
(. . . continued)
         false statements, or other deceptive practices during the disciplinary process;
         g) refusal to acknowledge wrongful nature of conduct; h) vulnerability of
         victim; i) substantial experience in the practice of law; j) indifference to
         making restitution; k) illegal conduct, including that involving the use of
         controlled substances. ABA Standards for Imposing Lawyer Sanctions, Rule
         9.22 (1992).

         Mitigating factors include: a) absence of a prior disciplinary record; b)
         absence of dishonest or selfish motive; c) personal or emotional problems; d)
         timely good faith effort to make restitution or to rectify consequences of
         misconduct; e) full and free disclosure to the disciplinary board or cooperative
         attitude toward proceedings; f) inexperience in the practice of law; g)
         character or reputation; (h) physical disability; (i) mental disability or
         chemical dependency including alcoholism or drug abuse when: (1) there is
         medical evidence that the respondent is affected by a chemical dependency or
         mental disability; (2) the chemical dependency or mental disability caused
         the misconduct; (3) the respondent's recovery from the chemical dependency
         or mental disability is demonstrated by a meaningful and sustained period of
         successful rehabilitation; and (4) the recovery arrested the misconduct and
         recurrence of that misconduct is unlikely; (j) delay in disciplinary
         proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m)
         remoteness of prior offenses. ABA Standards for Imposing Lawyer Sanctions,
         Rule 9.32 (1992).

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#25490

willingness to concede that his conduct was improper and he made mistakes. The

Referee (and the Disciplinary Board) recommended that Russell be publicly

censured.

[¶52.]       This Court has considered numerous attorney discipline cases which

have resulted in public censure. See Dorothy, 2000 S.D. 23, ¶ 62, 605 N.W.2d at 512

(Amundson, J., concurring) (listing and analyzing South Dakota public censure

cases.) While none of the cases involved prosecutorial misconduct they are

instructive because this Court balanced misconduct with factors including

admission of wrong doing, cooperation with the Disciplinary Board, a lack of prior

misconduct, and the unlikelihood of recurrence. Id.

[¶53.]       The release of the grand jury transcripts and the press release critical

of Judge Davis was the product of a relatively inexperienced prosecutor who was

caught up in the volatile political environment in Hot Springs and who allowed

himself to be seduced by it. Balanced against this, however, is that Russell

immediately admitted his errors, cooperated with the Disciplinary Board, and

completed an advanced legal degree. In addition, other than this proceeding,

Russell has no other disciplinary record. Accordingly, public censure is appropriate.

[¶54.]       Russell is to pay all costs of this proceeding. SDCL 16-19-70.2.

[¶55.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.




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