In Re the Matter of Discipline of Reynolds

#24932-DG
2009 SD 9

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE DISCIPLINE

OF MICHAEL P. REYNOLDS,

as an Attorney at Law.

* * * *

ORIGINAL PROCEEDING

* * * *

MICHAEL C. LOOS
Clayborne, Loos, Strommen & Sabers, LLP
Rapid City, South Dakota Attorney for respondent.

ROBERT B. FRIEBERG Counsel for disciplinary
Beresford, South Dakota board.

* * * *

ARGUED
August 28, 2008

OPINION FILED 2/11/09
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GILBERTSON, Chief Justice

[¶1.] The Disciplinary Board of the State Bar of South Dakota (Disciplinary

Board) filed a formal accusation against Michael P. Reynolds (Reynolds), a member

of the State Bar of South Dakota. Reynolds failed to answer the formal accusation

within thirty days. SDCL 16-19-68. 1 The Disciplinary Board also filed a petition

for an order temporarily suspending Reynolds from the practice of law. Reynolds

failed to respond to the petition for temporary suspension. SDCL 16-19-35.1 2 .

[¶2.] On July 25, 2008, this Court granted the petition for temporary

suspension and ordered Reynolds to appear before the Court on August 28, 2008, to

show cause why he should not be permanently disbarred from the practice of law.

This Court did not receive any communication from Reynolds until August 22, 2008,

when his attorney filed a notice of appearance.

[¶3.] Two weeks after oral argument before this Court, Reynolds filed a

motion for leave to file a response to findings of fact, conclusions of law and formal

accusation. The Disciplinary Board filed a response. This Court denied the motion.

[¶4.] Accordingly, this Court has proceeded to "render such judgment as the

case requires" SDCL 16-19-68, and has concluded that the appropriate sanction in

this case is a three-year suspension from the practice of law. SDCL 16-19-35(2).

1. SDCL 16-19-68 provides, in part, "The accused attorney shall answer the
formal accusation within thirty days and admit or deny the allegations
therein[.] . . . If the accused attorney admits the allegations or fails to
answer the formal accusation, the court shall proceed to render such
judgment as the case requires."

2. 16-19-35.1 provides, in part, "The respondent attorney shall file with the
Supreme Court, a response within ten days of service and serve a copy of the
response on the board or board counsel." (emphasis added).
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Following the three-year suspension, Reynolds may petition for reinstatement.

SDCL 16-19-83 - 16-19-87.

GENERAL BACKGROUND

[¶5.] Reynolds was raised in Sioux Falls and graduated from Washington

High School in 1980. He graduated from Northwestern University in Chicago,

Illinois, in 1984 with a B.S. in communication studies and a B.A. in political science.

Reynolds attended the University of California at Los Angeles (UCLA) School of

Law and interned for a semester with the chairman of the Federal Communications

Commission. After graduation in 1987 he exclusively practiced commercial

litigation with the Winston and Strawn law firm in Chicago except for a six month

hiatus with another firm, Skadden Arps.

[¶6.] When Reynolds and his wife had their first child in 1990 they began

contemplating returning to their native South Dakota. Before starting his job

search in South Dakota, Reynolds passed the July 1993 South Dakota bar

examination and was admitted to the practice of law in South Dakota on February

22, 1994.

[¶7.] Reynolds began working in the Quinn, Eisland, Day & Barker law firm

on September 22, 1994, and remained with the firm when it became Quinn, Day &

Barker in 1998. In 2001 Wilson, Reynolds & Burke was formed. Throughout this

time Reynolds' practice focused on commercial litigation, primarily partnership,

shareholder and employment disputes. Reynolds maintained between 65 to 80

active files. He worked from 7:00 a.m. to 7:00 p.m., went home until his children

were in bed, and returned to the office until 2:00 a.m.

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[¶8.] In 2006 Reynolds became President and Chief Executive Officer with

Dunbar Enterprises, LLC. He maintained an "of counsel" position with the Barker

Reynolds firm and continued working with two other clients. In 2007 Reynolds'

practice was limited to Dunbar Enterprises, LLC only.

[¶9.] In the course of his practice Reynolds has done a significant amount of

pro bono work. He has been a speaker at State Bar CLEs. He has served on the

boards of the United Way, Black Hills Symphony, Junior Achievement, Black Hills

Community Theatre and the Tatanka Foundation. Reynolds was also the president

of his church council for four years. Reynolds never missed his children's activities.

A.

[¶10.] On June 18, 2001, J.W., who held a management position with the City

of Rapid City, was given the option to resign with a severance package or be

suspended from his duties until the Rushmore Plaza Civic Center Board could meet

to consider the Rapid City Mayor's request that J.W. be terminated from his

position. J.W. chose the former.

[¶11.] Within days of what he considered a "forced resignation," J.W. retained

Reynolds to represent him and wrote to city officials in an attempt to initiate the

city's non-union personnel grievance procedure. The city advised J.W. that

although he was not entitled to the grievance procedure the city would, as a

courtesy, meet with him and his legal counsel to discuss J.W.'s performance

problems and its concerns "regarding those events leading up to your resignation."

[¶12.] By letter dated July 10, 2001, Reynolds advised J.W. that:

we should take the position that since your resignation
was forced, the grievance provisions are triggered. I

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informed you when we talked that this would be a dicey
issue, and one that could be the death-knell of any
potential litigation. However, I think we need to give it
the "old college try."

[¶13.] Reynolds and J.W. did meet with city officials. On August 28, 2001,

the mayor wrote to Reynolds, told Reynolds that he had considered the request to

reinstate J.W., and could not recommend that J.W. be allowed to revoke his

resignation. On August 30, 2001, Reynolds wrote to J.W. and told him to call

Reynolds so they could discuss the "next move."

[¶14.] For the next few months J.W., who had been in almost daily contact

with Reynolds, focused on filing for unemployment insurance and searching for a

new job. He secured a job in Wisconsin and moved on March 29, 2002. The day

before he moved J.W. met with Reynolds and agreed on a contingent fee. According

to J.W., Reynolds agreed to prepare a complaint and forward it to J.W. for review.

[¶15.] For the next two years J.W. attempted to communicate with Reynolds

about the status of his case, the drafting of the complaint, and the statute of

limitations through phone calls, faxes, and frequent e-mails which Reynolds, for the

most part, did not answer. Due to Reynolds' failure to respond the tone of J.W.'s e-

mails became increasingly desperate for information on the status of his case.

[¶16.] On March 4, 2004, almost two years after J.W. moved to Wisconsin,

Reynolds responded to J.W.'s e-mail of the same day. Reynolds told J.W. that he

was in talks with the city and would send a draft complaint at the end of the week.

When that did not happen, J.W. continued to e-mail Reynolds and Reynolds

responded that he was working on the complaint.

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[¶17.] J.W. returned to Rapid City on May 28, 2004, and met in person with

Reynolds who was apologetic, took responsibility for not communicating, and agreed

to prepare a complaint. Reynolds e-mailed the complaint to J.W. on May 31, 2004.

[¶18.] J.W. e-mailed Reynolds on June 1, 2004, expressing his pleasure with

the complaint and asking questions about it. In a series of unanswered e-mails

throughout June 2004, J.W. attempted to find out if the complaint had been filed.

Reynolds ultimately responded on June 23, 2004:

I will respond to no more e-mails of this nature. This is
neither positive nor productive.

I drafted the complaint, I made your changes. Filing is in
the pipeline. I'm peddling as fast as I possibly can.

Perhaps we should find you an attorney that is more
attentive to your needs.

[¶19.] Throughout the rest of 2004 J.W. continued to e-mail and call Reynolds

regarding the status of filing the complaint and whether Reynolds was representing

him. On March 12, 2005, after Reynolds did not respond to any of J.W.'s

communications, J.W. filed a formal complaint with the Disciplinary Board.

[¶20.] At the Disciplinary Board's hearing on September 22, 2005, Reynolds

acknowledged that the complaint had never been filed and that a statute of

limitations had expired. He admitted that his communication with J.W. was poor

and the situation could have been avoided by better communication, honesty about

the viability of J.W.'s claims, and the sending of a disengagement letter. Reynolds

also admitted that during the time of his representation of J.W. he had also

represented the City of Rapid City on two matters. Reynolds recognized the conflict

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and failed to disclose the conflict to either client or receive permission from either to

proceed.

[¶21.] At the Disciplinary Board's hearing Reynolds was unable to articulate

steps he could take to ensure that the situation with J.W. would not be repeated.

Reynolds admitted that his life had no balance; he was overextended with his

demanding legal caseload and "the pressures to produce," his family commitments,

and his outside activities. While he did receive counseling for stress management

and tried to implement what he had learned, he simply did not "have the answers"

to solving his problems.

[¶22.] Following the September 2005 Disciplinary Board hearing, Reynolds,

his law partner, Michael A. Wilson, Disciplinary Board counsel Robert B. Frieberg,

and Disciplinary Board member Thomas J. Nicholson, who was assigned to

Reynolds' case, met in October 2005 to negotiate a Private 60 Agreement pursuant

to SDCL 16-19-60, which provides:

If 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. Upon satisfactory compliance, the board may
thereafter dismiss the proceedings and notify the
complainant and such other persons as the board deems
appropriate. If, after an investigation, the attorney
general finds such action warranted, he shall report his
findings to the Supreme Court and recommend that such
action be taken by the board.

[¶23.] In the Private 60 Agreement Reynolds admitted that he violated Rules

1.3, 1.4, 1.5, 1.7, and 8.4(a)(c) of the South Dakota Rules of Professional Conduct by

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failing to respond to a client's numerous requests regarding the status of a case,

neglecting the client's file and allowing the statute of limitations to expire without

informing the client, and failing to seek permission from clients whose interests

were potentially adverse with respect to an apparent conflict of interest. The

Disciplinary Board and Reynolds agreed that the disciplinary proceeding would be

held in abeyance from December 1, 2005, until November 30, 2008, provided

Reynolds complied with specified reasonable conditions. These conditions included:

• a mental health evaluation to assess whether
Reynolds suffered from a disorder which impaired
his ability to practice law, and treatment, if
necessary;

• a review of all Reynolds' files by Reynolds and
Wilson, disengagement of matters of questionable
merit and cases where there was a disagreement as
to management of the case, fees and expenses as
determined by Wilson, and, approval by Wilson to
accept any new cases for a new or existing client;

• a biweekly review of every case or file by Reynolds
to assure matters were not neglected and clients
were informed;

• various reporting requirements to Wilson and the
Disciplinary Board, and;

• the institution of formal disciplinary proceedings
for a violation of the agreement or other complaints
filed against Reynolds.

[¶24.] Board counsel Frieberg mailed the Private 60 Agreement to Reynolds

for his signature and that of Wilson on November 2, 2006. When Frieberg

telephoned Reynolds three weeks later, Reynolds assured Frieberg that the

agreement was on his desk, and it would get signed and returned. On December 21,

2006, the Disciplinary Board sent Reynolds, by certified mail, a notice of hearing

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"with respect to your failure to respond to the Disciplinary Board concerning your

agreement under SDCL 16-19-60." That same day Wilson signed the Private 60

Agreement and Reynolds mailed it to Frieberg with a handwritten note saying,

"Sorry for the delay; a little miscommunication on this end."

[¶25.] At the January 5, 2006, due process hearing on the matter, the

Disciplinary Board expressed its concern that either Reynolds was not taking the

Private 60 Agreement seriously, or that he was exhibiting the same behavior that

brought him before the Board initially: putting things aside and not getting back to

them. The Board stressed the importance of following the agreement and

scrupulously reporting and communicating his compliance with it to the entities

required by the agreement.

[¶26.] Reynolds apologized to the Disciplinary Board, discussed the steps he

had taken to implement the Private 60 Agreement, and assured the Disciplinary

Board that he understood the seriousness of the agreement. The delay in returning

the signed Private 60 Agreement, Reynolds said, was his inability to meet with his

law partner, Wilson, to secure his signature. Reynolds explained, "So it's not as if I

have tried to ignore this agreement in any way, shape or form. It was more in the

nature of two ships passing in the night, Mike and I were, over the holidays, and I

sincerely apologize."

B.

[¶27.] The Disciplinary Board held a "follow-up" hearing with Reynolds on

June 20, 2006, to discuss amending the Private 60 Agreement. As of April 1, 2006,

Reynolds' law firm had dissolved and Reynolds, with Disciplinary Board knowledge,

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had signed a two-year contract with Dunbar Enterprises, LLC to become its

President and Chief Executive Officer.

[¶28.] Reynolds asked the Disciplinary Board to allow him to maintain an "Of

Counsel" position with the Barker Reynolds Law Firm in order to periodically assist

his former law firm and to use that firm's name on pleadings and correspondence in

litigation involving Dunbar Enterprises. Reynolds also asked the Disciplinary

Board to allow him to continue to work with Epic Outdoor Advertising and the

Sturgis Area Chamber of Commerce and to continue limited pro bono work. His

employer at Dunbar Enterprises, Kevin Costner, had already agreed to this request.

[¶29.] Reynolds told the Disciplinary Board that this arrangement decreased

his caseload from eighty complex cases to a maximum of six pieces of litigation for

three entities with whom he had strong, passionate relationships and for whom he

did "a great job." In fact, Reynolds was office sharing with his client Epic Outdoor

Advertising. Reynolds told the Disciplinary Board that he was now only working

from 8 a.m. to 5 p.m. Monday through Friday for very good compensation. His

stress level was down "300 percent," he lost 40 pounds by daily exercise, and he

recently acted and sang in a community theater production of "Oklahoma."

[¶30.] On July 24, 2006, Reynolds signed the Amended Private 60

Agreement. In it, the Disciplinary Board approved his requests to work for Dunbar

Enterprises, be "Of Counsel" with Barker Reynolds Law Firm, and continue

working with Epic Outdoor Advertising and the Sturgis Area Chamber of

Commerce. The Disciplinary Board and Reynolds also agreed that:

1. [Reynolds] will engage [Mentor] to serve as a
mentor for the principal purpose of monitoring

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[Reynolds'] case load in an effort to ensure
[Reynolds] does not become overburdened and over-
committed;

2. In that regard, [Reynolds] will report to [Mentor]
on a bi-monthly basis and provide [Mentor] with
updated information relating to each matter
currently being pursued by [Reynolds].

3. [Reynolds] will submit periodic reports to the
Secretary of the Board (March 15th, June 15th,
September 15th, December 15th), updating the
Board as to his pending matters and certifying in
writing that he is in compliance with the
aforementioned conditions of this Amended
Agreement, which report shall include [Mentor's]
acknowledgement.

4. [Reynolds] will promptly report to the Secretary of
the Board any disputes with clients, including
claims or demands of clients concerning lack of
communication, lack of diligence, or disagreements
of any nature regarding fees.

C.

[¶31.] On October 4, 2006, Reynolds' client E.G. filed a complaint with the

Disciplinary Board. E.G., who had been a client of Reynolds since 1997, was

concerned that the statute of limitations was going to expire and that Reynolds had

not responded to a myriad of phone calls, voice mail messages, and e-mails that

E.G. sent since Reynolds' firm had dissolved. In addition, Reynolds had never

provided E.G. with a copy of his file. E.G. wrote, "I am at my wits end in trying to

reach Mr. Reynolds."

[¶32.] Reynolds wrote to the Disciplinary Board and informed it that E.G.'s

file was in his former firm's storage facility which he did not have access to. While

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he met with E.G. frequently during his initial representation of E.G., Reynolds

claimed that he did not receive E.G's recent messages.

[¶33.] The Disciplinary Board contacted Reynolds' mentor. [Mentor] wrote to

Reynolds on November 8, 2006:

This letter is in follow up to the voice mail I left at your
office on Friday, November 3. In that message, I asked
you to make arrangements to contact [E.G.] and to set up
a time to meet with him to answer the questions he raised
in his letter to Tom Nicholson dated October 31, 2006. I
also have a copy of the letter [E.G.] wrote to you on
October 31, 2006 suggesting a meeting, and I had asked
that you advise when you were going to meet with him so
that we could meet on Monday or Tuesday, November 6 or
7. To date, I have not heard from you and I really need to
hear from you.

I want to emphasize that Tom Nicholson is quite adamant
that you make arrangements to meet with [E.G.] face to
face and answer the questions he is raising in his
correspondence. I am very concerned that you are putting
yourself in a very difficult situation if you do not get this
done immediately as the Board has stated that is what
they want done. They told me that and I have told you.
You need to get this done and I need to know when you
have a scheduled appointment with [E.G.]. It has to be
done immediately.

[¶34.] On December 13, 2006, the Disciplinary Board informed Reynolds that

it would conduct a due process hearing to "consider whether you have complied with

the terms of the Agreement, particularly with regard to disputes with your clients

and your cooperation with your mentor."

[¶35.] The hearing was January 3, 2007. Pursuant to a subpoena issued by

the Disciplinary Board, Reynolds appeared and produced E.G.'s sizeable file.

Reynolds explained that the day he received the subpoena he found the key to the

storage facility in his desk drawer and retrieved the file. Reynolds had not spoken

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to E.G. or given a copy of the file he retrieved from storage to E.G. because he did

not feel it was appropriate during the pendency of the disciplinary matter.

Reynolds admitted that he received [Mentor's] voice mail telling him to meet with

E.G., but denied receiving [Mentor's] November 8, 2006, letter telling him what

action was necessary. Reynolds also admitted receiving a couple voice mails from

E.G. and said that he tried to call E.G. back. E.G.'s caller ID did not show calls

from Reynolds. Reynolds, who had no administrative staff and travelled often, told

the Disciplinary Board that since the J.W. matter he made it a policy to respond to

all phone calls within forty-eight hours.

[¶36.] Reynolds told the Disciplinary Board that he would do anything to

salvage the situation. When asked by a board member "What's your solution to

this? How do you salvage this?" Reynolds responded, "The only thing I can suggest

is give me another chance." He told the Disciplinary Board that E.G.'s complaint

was devastating to him and he apologized to the Board. He told the Board, "I'm an

Army of one right now doing my best on behalf of my boss and I think he would tell

you I have done a superlative job and I'm a good lawyer." He denied having any

underlying issues with illicit drugs or alcohol and did not think he had "any deep

set psychological issues."

[¶37.] On March 27, 2007, the Disciplinary Board and Reynolds entered into

a Second Amended Private 60 Agreement which was to be effective April 1, 2007 to

March 31, 2010. This agreement provided, in part,

WHEREAS, the Amended Agreement no longer is
appropriate except insofar as [Reynolds] may continue to
maintain his active membership while serving as full-
time President and Chief Executive Officer of Dunbar

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Enterprises, LLC, now therefore this Second Amended
Agreement is entered into pursuant to SDCL 16-19-60:

1. [Reynolds] will not engage in the practice of law on
behalf of any individual person, firm, corporation or entity
of any kind or description other than Dunbar Enterprises,
LLC.

2. [Reynolds] will promptly withdraw from the Barker
Reynolds Law Firm and cause his name and designation
as "of counsel" to be promptly removed from the firm
letterhead.

3. [Reynolds] will notify Epic Media and the Sturgis
Area Chamber of Commerce, together with any other
existing clients, that he is withdrawing as their counsel,
will promptly deliver their files and records to them, and
assist them in securing substitute counsel.

D.

[¶38.] In April 2008 the Disciplinary Board became aware that Reynolds was

appearing as counsel for the Sturgis Area Chamber of Commerce in a case pending

before the United States District Court, Western Division. The Disciplinary Board

wrote to Reynolds on April 2, 2008, and told him that his appearance violated the

Second Amended Private 60 Agreement, and requested that he provide an

explanation by April 16, 2008. Reynolds did not respond. He also did not respond

to an April 18, 2008, letter from the Disciplinary Board seeking a response to the

April 2, 2008, letter and advising Reynolds to reserve June 16, 17, and 18, 2008, for

a due process hearing in Rapid City.

[¶39.] On May 22, 2008, the Disciplinary Board, by certified mail, return

receipt requested, notified Reynolds that it would hold a due process hearing on

June 16, 2008. The return receipt was signed, but not dated. The signature is

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illegible. It also included a Subpoena Duces Tecum commanding Reynolds to

appear and to bring:

All files and records concerning (1) Lisa Bryan
Management v. Tatanka Foundation, Lawrence County,
Fourth Judicial Circuit CIV 06-165 and (2) The Sturgis
Area Chamber of Commerce v. Little Sturgis Rally and
Races for Charity, Inc., US District Court, Western
Division, Case No. 08-5024.

The Disciplinary Board requested the Tatanka Foundation file because it was

aware that Reynolds represented the foundation in a circuit court case in which

Reynolds had failed to respond to discovery requests or appear at hearings after

notice. These failures led to a default judgment against Tatanka in excess of three

quarters of a million dollars.

[¶40.] On June 6, 2008, Reynolds filed a response on behalf of the Sturgis

Area Chamber of Commerce to the defendant's motion to dismiss for lack of

personal jurisdiction in the United States District Court action.

[¶41.] Reynolds failed to appear at the June 16, 2008, due process hearing.

At oral argument before this Court, Reynolds claimed that he did not receive the

notice of hearing. Reynolds was in his office on June 16, 2008, and claimed that he

would have attended the hearing if he had known about it. On July 14, 2008, this

Court received and filed the Disciplinary Board's findings of fact, conclusions of law,

recommendation and formal accusation. The findings of fact noted:

13. [Reynolds] neglects his files, fails to respond to
clients, ignores the Board, refuses mentoring and
guidance when offered, and displays disdain for the
civil justice system, the rules of the legal
profession, and common courtesy, which conduct
brings into question the fairness of the legal
system.

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[¶42.] The Disciplinary Board concluded:

CONCLUSIONS OF LAW

A. [Reynolds] has violated the Rules of Professional
Conduct, Rule 1.3 concerning diligence, Rule 1.4
concerning communication, Rule 1.5 concerning
fees, Rule 1.7 concerning conflict of interest, and
Rule 8.4(a)(c) concerning misconduct.

B. [Reynolds] has failed to reply to inquiries of and
citations to appear before the Disciplinary Board,
see In re Rude, 221 NW2d 43 (SD 1974), Matter of
Discipline of Keith A. Tidball, 503 NW2d 850 (SD
1993), and SDCL § 16-19-54.

C. [Reynolds] has failed to comply with the terms and
conditions of the Agreements voluntarily entered
into with the Disciplinary Board pursuant to SDCL
§ 16-19-60.

D. [Reynolds'] misconduct is aggravated by the
following aggravating circumstances as set forth in
ABA Standards for Imposing Lawyer Sanctions,
American Bar Association, adopted by the House of
Delegates, February 1986 and amended February
1992, Standard 9.2, to-wit:
Prior disciplinary offenses
Dishonest or selfish motive
A pattern of misconduct
Multiple offenses
Bad faith
Obstruction of the disciplinary process by
intentionally failing to comply with
orders of the disciplinary agency
Deceptive practice during the disciplinary
process
Refusal to acknowledge wrongful nature of
conduct
Vulnerability of victims
Substantial experience in the practice of law

[¶43.] The Disciplinary Board recommended that Reynolds be disbarred. It

also filed a petition for temporary suspension.

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[¶44.] Reynolds failed to answer the formal accusation within the thirty days

required by SDCL 16-19-68. 3 Reynolds also failed to file with this Court a response

to the petition for temporary suspension within ten days of service as required by

SDCL 16-19-35.1. This Court granted the petition for temporary suspension on

July 25, 2008, and ordered Reynolds to appear before the Court on August 28, 2008,

to show cause why he should not be disbarred.

E.

[¶45.] Following oral argument before this Court, the Disciplinary Board sent

this Court the memorandum decision filed by Fourth Circuit Court Judge Warren

G. Johnson on September 29, 2008, in Civ. 06-165, Lisa Bryan Management

Company vs. Tatanka Foundation. The Disciplinary Board asked this Court to take

3. Approximately sixty days after being served with the Board's July 2, 2008,
findings of fact, conclusions of law, recommendation, and formal accusation,
thirty days after the time for answering had expired, and almost two weeks
after this Court had concluded the August 28, 2008, disbarment proceeding,
Reynolds untimely moved to answer the Board's findings, conclusions, and
formal accusation. Reynolds failed to file a timely answer even though the
Board's formal accusation specifically advised him that he had "thirty days in
which to admit or deny the allegations of the formal accusation pursuant to
SDCL 16-19-68." That statute provides, "[t]he accused attorney shall answer
the formal accusation within thirty days and admit or deny the allegations
therein. . ." (emphasis added). "The effect of the word 'shall' may be
determined by the balance of the text of the statute or rule." Truman v.
Griese, 2009 SD 8, ¶ 28, __NW2d__ (citing Discover Bank v. Stanley, 2008
SD 111, ¶ 21, 757 NW2d 756, 762) (citations omitted). The only triggering
event to start the 30 days running is the formal accusation by the Board.
Thus, under the definition of "shall" contained in SDCL 2-14-2.1, the time to
answer expires at the end of the 30th day. The only discretion in SDCL 16-
19-68 is that the Court may hear the matter itself or it "may" refer [the]
matter for the taking of testimony and the making of findings and
recommendations. Reynolds identified no legitimate argument how any
attorney could misunderstand these provisions.

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judicial notice of this public record. Reynolds did not object to the Disciplinary

Board's request.

[¶46.] The facts of the Tatanka case, as set forth by Judge Johnson are:

Defendant (Tatanka) is a nonprofit South Dakota
Corporation. Kevin Costner, Santa Barbara County,
California has been its sole member and president since
its incorporation on March 28, 2005. The other original
directors were Timothy E. Hoctor, Ventura County,
California, Lisa Bryan and Michael P. Reynolds. Bryan
was also the company manager and Reynolds was also its
resident agent and corporate counsel.

In early October, 2005, Reynolds fired Bryan for alleged
misappropriation of funds. Bryan retained Sioux Falls
attorney, [Bryan's attorney], who commenced this action
on behalf of Bryan and her management company. The
complaint sought damages for breach of contract, tortuous
interference with the contract, and infliction of emotional
distress. Reynolds' answer [sic] on Tatanka's behalf,
denied her claims and asserted various counterclaims for
fraud, deceit, misrepresentation and breach of fiduciary
duty. Reynolds served the pleading on March 31, 2006.

In early 2006, Reynolds left the Barker Wilson law firm
and began full time employment as chief operating officer
of Dunbar Enterprises, which was headquartered at 403
National Street, No. 1, in Rapid City. Although Reynolds'
contract did not require him to provide legal services to
Dunbar, Costner or Tatanka, he continued to represent
Costner and his corporation in a dissolution proceeding
involving the Midnight Star partnership.

[Bryan's attorney] served various discovery requests,
motions, notices of hearing and other documents to
Reynolds at the Dunbar business address. Reynolds did
not respond to any of the notices and made no further
appearance on behalf of Tatanka. On March 29, 2007,
this Court entered judgment by default against
defendant. An evidentiary hearing was held in July, and
on July 30, 2007, judgment in the total sum of $785,
828.20 was entered in favor of Bryan. The judgment also
provided for joint and several liability of directors,
Costner, Hoctor and Reynolds. [Bryan's Attorney] served

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notice of entry of judgment on Reynolds at his Rapid City
business address. Last October 22nd, a Pennington
County Sheriff's deputy personally served several
executions on Reynolds, which were returned unsatisfied.

Costner fired Reynolds in May, 2008. George Picard
became treasurer, assistant secretary, general manager,
and registered agent of Tatanka. His wife, Debra, was
appointed secretary. Last June, Bryan's present counsel
subpoenaed Mr. Picard for a debtor's examination.

On July 28, 2008, Tatanka moved, pursuant to SDCL §
15-6-60(b), to vacate the default judgment on grounds of
mistake, surprise, and excusable neglect. Directors,
Costner and Hoctor, moved to vacate that portion of the
judgment imposing joint and several liability for Bryan's
damage award. Said motion was granted and by order of
September 11, 2008, the judgment was vacated as to the
individual directors.

[¶47.] At issue in Tatanka was whether a corporate defendant is entitled to

relief from judgment on grounds of inadvertence, excusable neglect, surprise, lack of

notice or mistake where its corporate counsel, Reynolds, answered the complaint

but wholly failed to participate further in the litigation or inform the other officers

and directors of the lawsuit. The trial court, in granting Tatanka's motion to vacate

the judgment noted:

Additionally, the record includes the deposition of Michael
P. Reynolds, taken on August 15, 2008. In said
deposition, Reynolds testified that he told Costner about
the Bryan complaint and that they discussed the various
counterclaims Tatanka would assert. Additionally,
Reynolds denied any recollection of receiving the notices
and other documents mailed to him by [Bryan's attorney].
He did, however, acknowledge that the documents were
sent to the proper addresses.

This Court finds that Reynolds' deposition testimony is
void of credibility. He testified that he informed Costner
of the lawsuit, after he received the summons and
complaint and prior to serving the answer and

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counterclaim. The Court finds it notable; [sic] that
Reynolds' periodic reports to Grigsby, in which he
describes the status and progress of all Costner's various
Deadwood area enterprises, makes absolutely no
reference to this suit. Reynolds' testimony that he
received none of the notices sent by [Bryan's attorney] can
only be viewed as false. The proposition that Reynolds
failed to receive notice from [Bryan's attorney] when
[Bryan's attorney] used the same mailing address as the
Canevas' attorneys in the Midnight Star litigation which
proceeded contemporaneously with the Bryan lawsuit
defies logic.

STANDARD OF REVIEW

[¶48.] This Court gives careful, due consideration to the Disciplinary Board's

findings of fact because the Disciplinary Board had the advantage of seeing and

hearing the witnesses first hand. In re Arendt, 2004 SD 83, 684 NW2d 79. We do

not, however, defer to the Disciplinary Board's recommended sanction. Discipline of

Ortner, 2005 SD 83, 699 NW2d 865. "The final determination for the appropriate

discipline of a member of the State Bar rests firmly with the wisdom of this Court."

Matter of Discipline of Wehde, 517 NW2d 132, 133 (SD 1994).

DISCIPLINARY GOALS

[¶49.] "A certificate of admission to the bar is a pilot's license which

authorizes its possessor to assume full control of important affairs of others and to

guide and safeguard them when, without such assistance, they would be helpless."

In re Egan, 52 SD 394, 402, 218 NW 1, 4 (1928)(quoting In re Kerl, 32 Idaho 737,

188 P 40 (1920). It is also:

a continuing proclamation by the Supreme Court that the
holder is fit to be entrusted with professional and judicial
matters, and to aid in the administration of justice as an
attorney and as an officer of the court. It is the duty of
every recipient of that privilege to conduct himself at all

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times, both professionally and personally, in conformity
with the standards imposed upon members of the bar as
conditions for the privilege to practice law.

SDCL 16-19-31. We take this obligation most seriously.

[¶50.] This Court has an affirmative duty to discipline members of the bar.

SDConst art V, § 12. The attorney disciplinary process is intended to a) protect the

public from further fraudulent, unethical or incompetent activities involving the

lawyer; b) preserve the image and integrity of attorneys, the bar association and the

legal profession as a whole; and, c) deter like conduct by other attorneys. Discipline

of Eicher, 2003 SD 40, 661 NW2d 354. Its purpose is not to punish the attorney.

Petition of Pier, 1997 SD 23, 561 NW2d 297.

The preservation of trust in the legal profession is
essential. Pier, 1997 SD 23 at ¶ 8, 561 NW2d at 299.
Lawyers in the practice of law have a formidable
responsibility to protect their clients' "property, their
freedom, and at times their very lives." Matter of
Chamley, 349 NW2d 56, 58 (SD 1984). "Only by providing
high quality lawyering can the integrity of the legal
profession remain inveterate and the confidence of the
public and the Bar remain strong." Wehde, 517 NW2d at
133.

In re Discipline of Mattson, 2002 SD 112, ¶ 40, 651 NW2d 278, 286.

ANALYSIS

[¶51.] To practice law in South Dakota, an attorney must possess "good moral

character." SDCL 16-16-2. Such a term goes well beyond that of honesty.

Pursuant to SDCL 16-16-2.1 the term includes "honesty, candor, trustworthiness,

diligence, reliability, observance of fiduciary and financial responsibility and respect

for the rights of others and the judicial process." This is a continual and on-going

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obligation. "Each day of an attorney’s life demands that these requirements be met

anew." In re Discipline of Eicher, 2003 SD 40, ¶ 25, 661 NW2d 354, 363.

[¶52.] When Reynolds signed the initial Private 60 Agreement he admitted

that he: a) failed to respond to J.W.'s repeated requests regarding the status of his

file; b) neglected J.W.'s file; c) allowed the statute of limitations to expire without

informing J.W.; and, d) failed to seek permission from J.W. and the City of Rapid

City, clients with an apparent conflict of interest. Reynolds admitted that his

conduct violated the Rules of Professional Conduct:

• Rule 1.3: Diligence
• Rule 1.4: Communication
• Rule 1.5: Fees
• Rule 1.7: Conflict of Interest: Current Clients
• Rule 8.4(a): Misconduct by violating the Rules of
Professional Conduct
• Rule 8.4(c): Misconduct by engaging in conduct
involving dishonesty, fraud, deceit or
misrepresentation.

[¶53.] The Private 60 Agreement allowed Reynolds to continue practicing law

under conditions designed to ensure that the conduct that brought him before the

Disciplinary Board would not be repeated. Unfortunately, this was not the case.

The first red flag was Reynolds' failure to sign the initial Private 60 Agreement in a

timely manner.

[¶54.] The Amended Private 60 Agreement limited Reynolds' practice, added

a mentoring program, and required the self-reporting of client claims of lack of

communication and diligence. Despite this, Reynolds failed to respond to E.W.'s

repeated requests for his file and the status of his case, claiming, in part, that he

did not receive E.W.'s messages. He did not self-report. Reynolds ignored his

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mentor's directives regarding E.W.'s case, again claiming that he did not receive

Mentor's letter. Reynolds only produced E.W.'s file when subpoenaed to do so.

[¶55.] The Disciplinary Board continued to work with Reynolds to "salvage"

his career by entering into a Second Amended Private 60 Agreement in March 2007

that limited Reynolds' practice of law to Dunbar Enterprises, LLC. Reynolds,

however, ignored the agreement and appeared in federal court on behalf of the

Sturgis Area Chamber of Commerce. He did not respond to repeated Disciplinary

Board letters requesting an explanation. He failed to appear at the Disciplinary

Board's due process hearing, again repeating the refrain that he did not receive the

notice.

[¶56.] Reynolds' conduct in the Tatanka lawsuit mirrored his conduct in

J.W.'s and E.W.'s cases and his conduct before the Disciplinary Board. According to

the memorandum decision filed by Judge Johnson, Reynolds did not respond to

notices and did not inform his clients of the status of the case. Reynolds' defense

was that he received none of the notices that were sent.

[¶57.] Reynolds' pattern of non-response continued after the Disciplinary

Board filed its formal accusation and petition for temporary suspension. Reynolds

failed to respond to either within the statutory time frame.

[¶58.] Reynolds' pattern of neglecting his clients' cases resulted in serious

consequences to his clients' legal positions. Reynolds ignored the fundamental

principle that "[a] lawyer shall act with reasonable diligence and promptness in

representing a client." Rule 1.3, South Dakota Rules of Professional Conduct, SDCL

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16-18 Appx. The Comment to Rule 1.3 succinctly analyzes Reynolds' repeated

conduct:

Perhaps no professional shortcoming is more widely
resented than procrastination. A client's interests often
can be adversely affected by the passage of time or the
change of conditions; in extreme instances, as when a
lawyer overlooks a statute of limitations, the client's legal
position may be destroyed. Even when the client's
interests are not affected in substance, however,
unreasonable delay can cause a client needless anxiety
and undermine confidence in the lawyer's
trustworthiness.

[¶59.] In addition to neglecting his clients' legal matters, Reynolds

demonstrated a pattern of failing to communicate with clients regarding the status

of their cases and files. Rule 1.4 of the South Dakota Rules of Professional

Responsibility provides, in part,

(a) A lawyer shall:

(3) keep the client informed about the status of
the matter;

(4) promptly comply with reasonable requests
for information[.]

The Comment to Rule 1.4 explains:

A lawyer's regular communication with clients will
minimize the occasions on which a client will need to
request information concerning the representation. When
a client makes a reasonable request for information,
however, paragraph (a)(4) requires prompt compliance
with the request, or if a prompt response is not feasible,
that the lawyer, or a member of the lawyer's staff,
acknowledge receipt of the request and advise the client
when a response may be expected. Client telephone calls
should be promptly returned or acknowledged.

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Reynolds could have avoided much of this disciplinary proceeding by heeding this

advice.

[¶60.] The pattern of Reynolds' neglect of his clients' legal matters and failure

to communicate with clients extended further. Reynolds repeatedly failed to

respond to Disciplinary Board demands for explanation, response, subpoena, and

hearing, and violated the Private 60 Agreement that the Disciplinary Board and he

agreed to. He ignored his mentor's directives. These failures constitute a violation

of SDCL 16-19-54, and are a separate basis for discipline. Discipline of Tidball, 503

NW2d 850 (SD 1993). We have long admonished:

The members of the [Disciplinary Board] perform a
difficult and all too often thankless task in investigating
charges of professional misconduct against their brother
lawyers. In this instance the members of the [Board]
gave respondent several opportunities to appear before
the [Board] and offer his explanation regarding the
charges that had been made against him, opportunities
that he spurned. We consider respondent's failure to
respond to the communications from the [Disciplinary
Board] to be indicative of his attitude towards the serious
nature of the complaints lodged by (his clients). Lest
anyone consider that the consequences of failing to reply
to the [Disciplinary Board] are singularly visited upon the
respondent, let this opinion be fair notice that similar
inexcusable failures to respond will count heavily in any
subsequent formal disciplinary proceedings brought
against an attorney. He acts at his peril who treats a
communication from the [Disciplinary Board] with the
indifference accorded an unsolicited invitation to join a
book club. (citations omitted).

In re Rude, 88 SD 416, 422-423, 221 NW2d 43, 47.

[¶61.] Reynolds defends much of his inaction to his failure to receive phone

calls, letters, e-mails, and notices. Circuit Judge Johnson found this explanation

"void of credibility" and "false." We find it disingenuous, at best. Reynolds claims of

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nonreceipt were not isolated. Rather, Reynolds claims were a part of his pattern of

conduct to his clients, the Disciplinary Board, his mentor, and ultimately this

Court.

[¶62.] The Disciplinary Board is not conducting a baby-sitting service for

wayward attorneys who have lost their way. It is charged with the protection of the

public. It was Reynolds' obligation and in his self-interest to promptly comply with

all Board notices and directives. He consistently failed to do so. Once again we are

presented with a "blaming others' mentality" which in this case includes, Reynolds'

clients, the Disciplinary Board, the U.S. Postal Service and his attorney mentor,

excuses which we have in the past consistently rejected and continue to do so today.

In re Discipline of Laprath, 2003 SD 114, ¶ 84, 670 NW2d 41, 66-67; Eicher, 2003

SD 40 ¶ 52, 661 NW2d at 370; Matter of Dorothy, 2000 SD 23, ¶¶ 42-47, 605 NW2d

493, 505-507; Application of Widdison, 539 NW2d 671, 678 n15 (SD 1995).

[¶63.] We are not unmindful that Reynolds at one time enjoyed a good

reputation within the bar, provided service to the bar, and served his community

and church. "While this may be relevant in the determination of proper level of

discipline, it can hardly rise to the level of exoneration." In re Discipline of Mattson,

2002 SD 112 at ¶ 54, 651 NW2d at 289. At some point in time, however,

"inexplicable" to the Board counsel Frieberg, Reynolds "became unable, or simply

refused, to properly execute his professional responsibilities in conjunction with the

acceptance and resolution of various cases." Matter of Discipline of Wehde, 517

NW2d at 133. Our observation in Matter of Discipline of Kintz, 315 NW2d 328, 331

(SD 1982) rings true of Reynolds:

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For whatever reason that remains hidden in his psyche,
respondent could not bring himself to perform his
professional obligations to his clients in a timely manner.
Nonetheless, the clients suffered as much as though
respondent had acted out of evil motive. Accordingly, we
must take such action as is necessary to protect the public
from future neglect by respondent.

[¶64.] Our "paramount" constitutional duty remains the protection of the

public. In Tidball we set forth very clearly what guides this Court:

Nevertheless the standard which governs our deliberations is
clear. We are not to balance the potential for rehabilitation
against protection of the public. Our duty to protect the public
is paramount and encouragement for rehabilitation must be
done within that context. [In re]Rude, supra, 221 NW2d [43] at
48. . . . The client suffers as much through the misconduct [of
procrastination] as if the same misconduct had as it source a
calculated evil motive. Matter of Kintz, [315 NW2d 328 SD
1982] supra. To hold otherwise would wreak havoc with the
process of disciplinary proceedings for all too frequently
misconduct by attorneys appears to be attributable at least in
part to the factor [of procrastination]. Walker,[254 NW2d 452
(SD 1977)] supra at 455.

503 NW2d at 856.

APPROPRIATE DISCIPLINE

[¶65.] Our disciplinary options are disbarment, suspension for up to three

years, placement on probationary status, and public censure. SDCL 16-19-35.

Based on this record we cannot, pursuant to our duty under SDCL 16-19-31, certify

as Justices of this Court that Reynolds is "fit to be entrusted with professional and

judicial matters, and to aid in the administration of justice as an attorney and as an

officer of the court." It is the order of this Court that Reynolds be suspended from

the practice of law for three years, effective immediately. See Tidball, supra. While

disbarment could be justified in this case for protection of the public, a lengthy

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suspension will allow a once very competent attorney time to identify to himself his

professional flaws and attempt to cure them. Eicher, 2003 SD 40 at ¶ 54, 661

NW2d at 371. The burden to do so remains upon Reynolds.

[¶66.] We believe the conditions imposed in Disciplinary of Wehde, 517 NW2d

at 134 are appropriate in Reynolds' case:

Before [Reynolds] may apply for readmission to the Bar
he must take, and pass, the Multistate Professional
Responsibility Examination, successfully complete a law
office management course, have a complete psychological
evaluation and submit the results to the Board, and
reimburse the Unified Judicial System and the State Bar
of South Dakota for all reasonable costs and expenses
generated as a result of this proceeding. Additionally,
upon application for readmission to the Bar, [Reynolds]
must successfully demonstrate, to the satisfaction of the
Board, that he is able and willing to execute his
professional responsibilities with the highest punctilio.
Upon readmission, [Reynolds] must agree to file monthly
reports with the Board on the status of all open files for a
period of two years. Failure to meet the suspension
conditions will result in permanent disbarment.

The Disciplinary Board is not precluded from examining allegations which have not

been previously and fully litigated by the Board.

[¶67.] It is so ordered.

[¶68.] ZINTER and MEIERHENRY, Justices, and WILBUR, Circuit Judge

and MILLER, Retired Justice, concur.

[¶69.] WILBUR, Circuit Judge, sitting for KONENKAMP, Justice,

disqualified, and MILLER, Retired Justice, sitting for SABERS, Retired Justice,

disqualified.

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