In Re the Discipline of Tornow

#26430-DG

2013 S.D. 61

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

DISCIPLINE OF R. SHAWN TORNOW,

AS AN ATTORNEY AT LAW.

* * * *

ORIGINAL PROCEEDING

* * * *

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

DARRELL A. JESSE of
Crary, Huff, Ringgenberg,
Hartnett & Storm, P.C.
Dakota Dunes, South Dakota Attorneys for
Respondent.

* * * *

ARGUED MAY 21, 2013

OPINION FILED 08/07/13
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GILBERTSON, Chief Justice

[¶1.] The City Attorney for the City of Sioux Falls, David A. Pfeifle, filed a

complaint with the Disciplinary Board of the State Bar of South Dakota against R.

Shawn Tornow, a member of the State Bar of South Dakota. Tornow appeared at

the Disciplinary Board hearing and waived his right to counsel. Following the

hearing, the Disciplinary Board filed its findings of fact and conclusions of law and

its recommendation that Tornow be publicly censured. This filing constitutes a

formal accusation. SDCL 16-19-67.

[¶2.] Pursuant to SDCL 16-19-68, Tornow answered the formal accusation

and denied the allegations against him. This Court referred the matter to Circuit

Judge Jack R. Von Wald. SDCL 16-19-68. Following a hearing where Tornow

appeared pro se, Referee Von Wald filed findings of fact and conclusions of law and

recommended that the matter be remanded to the Disciplinary Board for a “private

reprimand and admonishment to [Tornow] by the Disciplinary Board.” See SDCL

16-19-35(5). Tornow failed to respond to the Referee’s recommendation. At oral

argument before this Court, however, Tornow asked that the matter be remanded to

the Disciplinary Board for a private reprimand.

GENERAL BACKGROUND

[¶3.] Tornow is forty-nine years old. He has been married for twenty-eight

years and has an adult daughter and two teenage sons. He and his family reside in

Sioux Falls.

[¶4.] Tornow graduated from the University of South Dakota School of Law

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in December 1987. In 1988, he became an Assistant Attorney General and worked

in that office for over five years. After a year and a half as the full-time Deputy

State’s Attorney in Hughes County, Tornow worked for the Department of Social

Services in the Medicaid program.

[¶5.] In 1995, Tornow became the Chief Assistant City Attorney for the City

of Sioux Falls and later became an Assistant City Attorney for Sioux Falls. He was

terminated from the City Attorney’s Office on August 27, 2010. Tornow believes he

was wrongfully discharged, has exercised his civil service appeal rights, see Tornow

v. Sioux Falls Civil Service Bd., 2013 S.D. 20, 827 N.W.2d 852, and served a notice

of intent to bring legal action for damages against the City of Sioux Falls for § 1983

violations.

[¶6.] Tornow is currently in the private practice of law in Sioux Falls. Since

his admission to practice law in South Dakota in 1988, he has had no substantiated

disciplinary complaints.

FACTS

A

[¶7.] While Tornow began his career in the Sioux Falls City Attorney’s office

as the Chief Assistant City Attorney, at the time of the allegations in question he

was a mid-management Assistant City Attorney. Among his responsibilities were

advising city government officers and employees on city matters, enforcing city

codes, prosecuting city ordinance violations, and providing legal counsel to the

City’s Board of Ethics. This board is comprised of citizens of Sioux Falls who are

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appointed by the mayor of Sioux Falls. By city ordinance, Board of Ethics

proceedings are confidential.

[¶8.] In 2010, former Sioux Falls City Council member Kermit Staggers was

running for mayor of Sioux Falls. In a March 31, 2010 e-mail to City Attorney

Robert Amundson, Tornow wrote:

Finally, please note there also is a pending nearly lock-solid
violation by KS [Kermit Staggers] of Charter Sec. 2.05-
prohibition of council members holding other elected office that’s
just come to light. That violation too could/should be
investigated under the authority of the Board of Ethics, if
someone might want to go there by filing or calling for a
complaint/investigation. RST.

[¶9.] On April 8, 2010, two Sioux Falls city employees filed a complaint with

the Board of Ethics alleging that Staggers “possibly used confidential city

information to promote his personal interests as a candidate for Mayor of the City of

Sioux Falls.” The employees were concerned that Staggers used his position on the

City Council to obtain their confidential home addresses.

[¶10.] The Board of Ethics investigated the complaint during April/May 2010

for possible violations of Sioux Falls city ordinance and charter provisions. During

the Board of Ethics’ investigation, Tornow told the board members that Staggers

served as a State Republican Party precinct committeeman while serving on the

City Council and violated a provision of the city charter prohibiting council

members from holding other elected offices.

[¶11.] The Board of Ethics investigated the precinct committeeman issue and

ultimately reprimanded Staggers for it. This issue, however, was not the subject of

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the filed complaint where the Board of Ethics found no ethics violations. The

reprimand resulted in Staggers publicly castigating the Board of Ethics for what he

characterized as a “fishing expedition.” Staggers also repeatedly attempted to

contact the chair of the Board of Ethics to discuss the reprimand. As a result, the

chair of the Board of Ethics asked Tornow to talk to Staggers and explain that the

matter was resolved and there would be no further contact.

[¶12.] Tornow called Staggers at approximately 5:25 p.m. on May 18, 2010.

During the course of the eight-minute conversation, the two discussed whether

Tornow brought up the issue of the precinct committeeman with the Board of

Ethics. Tornow told Staggers, “I didn’t bring anything up.” Tornow suspected that

Staggers might sue the City over the ethics matter and recorded the phone

conversation on the City’s IT system which was routinely used by city officials who

elected to record some phone conversations held in the discharge of their duties.

The conversation was recorded without Staggers’ knowledge.

[¶13.] On June 17, 2010, Staggers e-mailed Tornow at 10:30 a.m., asked to

“obtain a copy of the recording of our 5:30 PM, May 17th telephone conversation,”

and said he would pick it up the next day at the City Attorney’s office. Upon receipt

of Staggers’ request, Tornow e-mailed Sioux Falls Mayor Mike Huether and wrote,

“FYI, I just rec’d a fairly strange e-mail request from Kermit Staggers in regard to

the Board of Ethics most recent dealings with him based on the complaint filed

against him.” Tornow told Mayor Huether that he was in a “quandary how best to

respond, if at all, as Kermit apparently continues to snoop around about the ethics

complaint and the BOE’s (finalized) actions in response.” Tornow asked to meet

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with the mayor to discuss Staggers’ request. Mayor Huether, however, forwarded

Tornow’s e-mail to City Attorney Amundson and Chief Assistant City Attorney Gail

Eiesland, who had succeeded Tornow as Chief Assistant City Attorney.

[¶14.] Amundson e-mailed Tornow at 3:50 p.m. on June 17 and directed him

to forward Staggers’ e-mail to him and Eiesland for review. Tornow did so at 5:57

p.m. on June 17, telling Amundson that, “please keep in mind that there was no

phone call to Staggers on May 17th . . . I called Kermit at approx. 5:25 pm on Tues.,

May 18th.” Tornow told Amundson that he had “a personal copy of the phone call,”

and that the phone call was not a public record “based on the clear and

unambiguous provisions of SDCL 1-27-1.5(12).” Tornow characterized the phone

call as a “non-public phone conversation[ ]” that was “simply kept in an employee’s

personal record(s).” While Tornow had “absolutely nothing to hide in or during my

conversation with Staggers,” he did not want the conversation released for a variety

of reasons.

[¶15.] The next morning, on June 18 at 9:15 a.m., Amundson e-mailed

Tornow and directed him to have the phone call with Staggers transcribed. In an e-

mail response at 11:43 a.m., Tornow told Amundson that, “[m]y personal record of

the Staggers 8 min. phone conversation should not be turned over to KS[.]” He also

informed Amundson that:

As to an audio copy of the May 18th conversation for potential
internal review purposes: it’s an audio file not on the city
system, however, I have a copy at home that I’ll try to get into
file format in order to get to media services and, if so, they
should hopefully be able to transcribe it, if necessary.

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[¶16.] Later on June 18, Amundson directed Eiesland to attempt to obtain a

copy of the recording of the Tornow/Staggers phone conversation. At 4:45 p.m. on

June 18, the City’s Information Technology manager found the recording on the

system’s backup files. The manager believed the recording had been deleted from

the City server between 1:00 a.m. and 2:00 p.m. on June 18, but could not

determine who deleted it.

[¶17.] Staggers e-mailed Tornow again on Monday, June 21 at 9:30 a.m.

saying he stopped to get the recording but nobody at the City Attorney’s office had a

copy. He asked Tornow to leave a copy of the recording at the front desk. At 7:42

p.m. that evening, Tornow e-mailed Staggers saying, “Not sure what you’re

attempting to dig up here—there was/is no such recording,” and suggesting that

Staggers contact the chair of the Board of Ethics. The next afternoon, Staggers

responded, “My understanding was that in accordance with standard operating

procedures important phone calls were taped. Thank you for clarifying the issue

with our phone call.”

[¶18.] The City hired an outside investigator, attorney Cheryle Wiedmeier

Gering, 1 to conduct a workplace investigation of Tornow’s possible dishonesty and

deception in the Staggers matter. 2 In the course of the investigation, Gering asked

Tornow if he raised the precinct committeeman issue with the Board of Ethics:

Mr. Tornow stated that he “may have” in response to an inquiry
from a Board of Ethics Committee member as to what

1. This work was undertaken by Gering prior to her being sworn in as a circuit
judge for the First Judicial Circuit on July 1, 2011.

2. The workplace investigation report, found in Exhibit 5, is a part of the record
before the Disciplinary Board.
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ordinances they needed to be looking at as they reviewed the
ethics complaint involving Mr. Staggers. Mr. Tornow went on to
say that if he did, he may have “overstepped.”

[¶19.] The investigation also revealed that Tornow recorded the May 18, 2010

conversation on his office phone system. After receiving Staggers’ request for a copy

of a May 17th recording of “our 5:30 p.m., May 17th telephone conversation,”

Tornow played back the May 18th conversation and recorded it on his personal

hand-held digital recorder. He then deleted this recording from the City’s phone

system.

[¶20.] The investigator’s report detailed Tornow’s reasons for deleting the

recording:

[Tornow’s] system had a large number of saved messages/
recordings on it (there is a maximum number that can be
saved/recorded); the recording was about a confidential Board of
Ethics (BOE) matter; the recording was not a public record
pursuant to state law (SDCL 1-27-1.5(12)); he believed that Mr.
Staggers would use the mere fact that the conversation had been
recorded against the City Attorney’s Office and the BOE; Mr.
McKnight’s [the chair of the Board of Ethics] strong feelings
expressed to Mr. Tornow that the recording should not be given
to Kermit Staggers (note that Mr. McKnight did not tell Mr.
Tornow to delete the recording); and Mr. Tornow was protecting
his client (the Board of Ethics) and himself by deleting the
recording from the City phone system in the event that a
subpoena request was received for the recording.

[¶21.] The investigator concluded that Tornow knew what conversation

Staggers was asking for, but did not tell Staggers that he had the wrong date:

According to Mr. Tornow, when he told Mr. Staggers there
“was/is no recording,” he was “word-smithing” his response to
Kermit Staggers as Mr. Staggers’ e-mails inquired about a “May
17th” conversation and there is no recording of a May 17th
conversation as there was no conversation between Staggers and
Tornow on that date.

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[¶22.] Shortly after Tornow was relieved of his duties in the City Attorney’s

office, Staggers threatened a lawsuit against the Board of Ethics and the City. The

recording would have been a part of the evidence in that proceeding. The matter

was settled. Staggers also filed a complaint with the State Open Meetings

Commission which found that the Board of Ethics violated state open meetings law

and issued a public reprimand.

B

[¶23.] In March 2009, Tornow’s 20-year-old daughter, Megan, was cited by a

Sioux Falls police officer for a state no seat belt violation and a city speeding in a

school zone violation. Because of Tornow’s position in the City Attorney’s office, the

prosecution was handled by the Minnehaha County State’s Attorney’s office. The

City Attorney’s office had a long-standing practice with the State’s Attorney that

the State’s Attorney would prosecute cases in which the City had a conflict.

[¶24.] Megan was represented by attorney Dan Brendtro. On the eve of trial,

Brendtro called Tornow at home and asked him if there was a joint powers

agreement between the State’s Attorney’s office and the City Attorney’s office that

allowed prosecution in Megan’s case. Tornow told Brendtro that there was no joint

powers agreement allowing the State’s Attorney to prosecute a city citation.

[¶25.] At a June 12, 2009 appearance in magistrate court, Brendtro moved to

dismiss Megan’s case because the State’s Attorney lacked the jurisdiction to

prosecute. The motion was granted without prejudice.

[¶26.] A deputy state’s attorney notified Chief Assistant City Attorney

Eiesland of the dismissal and told her that Brendtro received advice concerning the

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motion from someone in the City Attorney’s office. When questioned by Eiesland,

Brendtro told her that he had spoken with Tornow.

[¶27.] Tornow admitted speaking to Brendtro about the jurisdictional issue

and claimed he was obligated to do so pursuant to Rule 3.3 of the South Dakota

Rules of Professional Conduct. 3

[¶28.] After the dismissal of Megan’s citations, she was recharged with

violations of state law. Following her conviction, Tornow represented her on appeal

to the circuit court. In his appellant’s brief, Tornow alleged that the case was a

“strangely mishandled traffic case” involving “this bungled state prosecution.”

Tornow submitted that the State “improperly filed its June 23d complaint as a

factually retaliatory measure against [Megan Tornow].” Tornow referred to the

“State’s ignorance or obfuscation” of statutory requirements, the “State’s feeble

attempt to cover their mistaken charge,” and the “State’s concocted careless driving

charge.” Tornow also wrote:

Unfortunately, this retaliatory prosecution effort was further
bolstered by Magistrate Sage as a part of his review of the case
when he astonishingly complained and/or criticized on the
record that:

“The more despicable thing to me is we all know who this
is and . . . I think this is pretty despicable on Mr.
Tornow’s part, if that’s the case. It was charged [as] a city
offense to start with and then you end up in state court
and fight it . . . .”

DISCIPLINARY BOARD

[¶29.] In its findings of fact, the Disciplinary Board, in addition to entering

findings on the Staggers and Megan Tornow matters, found:

3. Rule 3.3 deals with a lawyer’s candor toward the tribunal.
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34. [Tornow’s] written responses to the Board deny any rule
violations on his part. He claims Pfeifle’s complaint was
made for the purpose of “. . . bolster[ing] their
discriminatory and pretextual personnel action through
their discharge of my employment.” [Tornow] states
further, “. . . this complaint was submitted as an improper
attempt to bolster the City’s lack of just cause for its
discriminatory and pretextual discriminatory action on
August 27.”

35. [Tornow’s] frequent requests to delay the Board’s
investigation because of [Tornow’s] inability to obtain
evidence necessary to support his reply to the complaint
[were] pretextual.

36. [Tornow’s] misconduct constitutes violations of the Rules
of Professional Conduct and has been prejudicial to the
administration of justice in bringing into question the
fairness of the justice system.

[¶30.] The Disciplinary Board concluded:

A. [Tornow] has violated the Rules of Professional Conduct:
Rule 1.7 concerning conflicts of interest; Rule 3.4
concerning fairness; Rule 4.1 concerning truthfulness;
Rule 4.4 concerning rights of third persons; and Rule 8.4
(a) (c) and (d) concerning professional misconduct.

B. [Tornow’s] misconduct is aggravated by the following:

i. [Tornow’s] dishonest or selfish motive;
ii. [Tornow’s] multiple offenses;
iii. [Tornow’s] deceptive requests for delay in the
Board’s investigation;
iv. [Tornow’s] position as a public official;
v. [Tornow’s] substantial experience in the practice of
law; and
vi. [Tornow’s] failure to fully acknowledge the extent
of his misconduct.

[¶31.] The Disciplinary Board recommended that Tornow be publicly

censured.

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REFEREE

[¶32.] Following the hearing before the Referee, the Disciplinary Board and

Tornow submitted proposed findings of fact and conclusions of law and a

recommendation to the Referee. The Disciplinary Board proposed that the Referee

recommend “[Tornow] be publicly censured.” Tornow proposed that the Referee

recommend, “If any discipline may be necessary to protect the public in this matter

and is not intended to punish [Tornow], this matter should be remanded to the

South Dakota Disciplinary Board for a private and confidential letter of

admonishment to [Tornow].”

[¶33.] In recommending that the matter be remanded to the Disciplinary

Board for a private reprimand and admonishment, the Referee concluded:

1. [Tornow] has violated the Rules of Professional Conduct,
specifically Rule 1.7, dealing with conflicts of interest.
The Rule provides:

(a) Except as provided in paragraph (b), a lawyer shall
not represent a client if their representation
involves a concurrent conflict of interest. A
concurrent conflict of interest exists if . . .

(2) There is significant risk that the representation
of one or more clients will be materially limited
by the lawyer’s responsibilities to another client,
a former client, or a third person or by a
personal interest of the lawyer. (Emphasis
Original.)

2. [Tornow] has violated Rule of Professional Conduct No.
3.4, fairness to opposing party and counsel.

3. [Tornow] has violated Rule of Professional Conduct No.
4.1 concerning truthfulness in statements to others.
Misrepresentations can occur by partially true but
misleading statements or omissions that are the
equivalent of affirmative false statements.

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4. [Tornow] has violated Rule of Professional Conduct No.
8.4 (a), (c) and (d) concerning professional misconduct.

[¶34.] In mitigation, the Referee concluded:

5. [Tornow] has had a legal career of almost 25 years and
has had no substantiated disciplinary complaint prior to
the current complaint.

STANDARD OF REVIEW

[¶35.] The Court gives careful consideration to the findings of the

Disciplinary Board because it has had the opportunity to see and hear the

witnesses. In re Discipline of Reynolds, 2009 S.D. 9, ¶ 48, 762 N.W.2d 341, 352.

However, we do not defer to the Board’s recommended sanction. Id. While this

Court also gives careful consideration to a referee’s findings, it gives no particular

deference to a referee’s recommended sanction. In re Discipline of Russell, 2011

S.D. 17, ¶ 31, 797 N.W.2d 77, 85. “The final determination for the appropriate

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

In re Discipline of Wehde, 517 N.W.2d 132, 133 (S.D. 1994). This is because this

Court is ultimately charged with the obligation to protect the public through the

regulation of the Bar. S.D. Const. art. V, § 12.

DISCIPLINARY GOALS

[¶36.] Attorneys must possess good moral character to practice law in South

Dakota. SDCL 16-16-2. The term good moral character includes, but is not limited

to, the qualities of “honesty, candor, trustworthiness, diligence, reliability,

observance of fiduciary and financial responsibility, and respect for the rights of

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others and for the judicial process.” SDCL 16-16-2.1. Attorneys admitted to the

practice of law have a continual and on-going obligation to meet these requirements

on a daily basis. Reynolds, 2009 S.D. 9, ¶ 51, 762 N.W.2d 341 at 352-53.

[¶37.] An attorney’s certificate of admission to the South Dakota bar

“authorizes its possessor to assume full control of the important affairs of others

and to guide and safeguard them when, without such assistance, they would be

helpless.” In re Egan (Egan II) 52 S.D. 394, 402, 218 N.W. 1, 4 (1928) (quoting In re

Kerl, 32 Idaho 737, 738, 188 P. 40, 41 (1920)). As a condition for the privilege to

practice law, an attorney must act “both professionally and personally, in

conformity with the standards imposed upon members of the bar . . . .” SDCL 16-

19-31.

[¶38.] The Supreme Court has “inherent power to supervise the conduct of

attorneys who are its officers,” SDCL 16-19-20, and the affirmative duty to govern

the discipline of members of the bar. S.D. Const. art. V, § 12. A license to practice

law in South Dakota “is 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[.]” SDCL 16-19-31. These are obligations that this Court

takes “most seriously.” Russell, 2009 S.D. 9, ¶ 49, 762 N.W.2d at 352.

[¶39.] In In re Discipline of Ortner, 2005 S.D. 83, ¶ 27, 699 N.W.2d 865, 874,

we noted:

The purpose of the disciplinary process is to protect the public
from fraudulent, unethical or incompetent practices by
attorneys. Matter of Discipline of Kallenberger, 493 N.W.2d 709
(S.D. 1992). It is also intended to deter like conduct by other
attorneys. In re Discipline of Eicher, 2003 S.D. 40, 661 N.W.2d

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354. The disciplinary process is not conducted to punish the
lawyer. Petition of Pier, 1997 S.D. 23, 561 N.W.2d 297.

The preservation of trust in the legal professional is
essential. Pier, 1997 S.D. 23 at ¶ 8, 561 N.W.2d 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 N.W.2d 56, 58 (S.D. 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
N.W.2d at 133.

In re Discipline of Mattson, 2002 S.D. 112, ¶ 40, 651 N.W.2d 278, 286.

[¶40.] In Ortner, supra, and other disciplinary cases we have noted that the

disciplinary process is not intended to punish the lawyer. This statement had its

genesis in In re Egan (Egan I), 36 S.D. 228, 154 N.W. 521 (1915). This Court

distinguished criminal proceedings and disbarment proceedings:

Statutes, text-writers, and courts speak of certain misconduct of
attorneys as being “grounds for” disbarment. Such use of the
term “grounds for” is misleading and tends to the conclusion
that it is in fact, for the “misconduct” that the attorney is
disbarred. To disbar for an act savors of punishment and would
ally a disbarment proceeding to a criminal proceeding, to which
proceeding a disbarment proceeding has, in fact, no relation. In
only one sense is such use of the term “grounds for” correct, and
that is as stating that the misconduct furnishes the proof of the
wrongdoer’s present unfitness to hold a license as an attorney at
law; but it is such “unfitness” which in every case is the real
“ground for” disbarment. As said by every court in Ex parte
Tyler, 107 Cal, 78, 40 Pac. 33, when speaking of the power to
disbar, the italicizing being ours:

“In the exercise of this power the court deals with the
attorney only as an officer of the court in investigating
charges against him for the purpose of determining
whether, under the proofs, he is a fit person to be allowed
to continue to practice as an attorney and counselor in the
courts under the license which has been granted to him,

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and not for the purpose of judging whether he is guilty of
a crime for which he ought to be convicted and punished.”

Egan I, 36 S.D. at 233, 154 N.W. at 522-523. The Court further noted that:

Our statutes (section 704, P.C.) prescribe that certain things
“are sufficient causes for revocation or suspension,” but such
section certainly does not make it mandatory upon the court to
disbar or suspend an attorney against whom one or more of the
“causes” may be proven, if from the whole evidence the court
should be satisfied that at the time of such disbarment
proceeding the attorney was a person of good moral character
and fitted to remain an attorney; neither does such statute
prescribe the limits beyond which a court is forbidden to go in
investigating the alleged unfitness of an attorney to retain his
license. This distinction must be borne in mind: The law
punishes one for what he does, not for what he is, while an
attorney is disbarred because of what he is as proven, as of
course it only could be proven, by what he has done. It is this
that fundamentally differentiates a disbarment proceeding from
a criminal prosecution, and proves the correctness of the holding
that a disbarment proceeding is purely civil in its nature. State
v. Kirby, 154 N.W. 284, decided at this term. A person is
licensed to practice as an attorney when, in the method
established by law, he has been found to be fitted to serve as
such attorney; he is suspended or disbarred when it is adjudged
that he is unfitted so to serve. The public seeks redress, through
a criminal action, for a wrong done it by one acting as an
attorney at law; it seeks protection from further wrong on the
part of such attorney through the purely civil proceeding
wherein it seeks his disbarment. Proof of misconduct,
punishment for which may be barred by statute, may often,
especially in connection with proof of other misconduct of more
recent date, tend to prove present unfitness or moral
delinquency. It is unnecessary to the materiality of proof of
certain misconduct that such proof, standing alone, would be
insufficient to establish the unfitness of the wrongdoer to be a
licensed attorney; the ultimate question being: Do all the facts
established by the evidence prove to the satisfaction of the court
that the respondent is unfitted to be an attorney at law?

Egan I, 36 S.D. at 233-234, 154 N.W. at 523.

[¶41.] With these principles in mind, we turn to the issues raised in Tornow’s

case.

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LEGAL ANALYSIS

A

[¶42.] Every person who has the privilege to practice law has the

responsibility to strive for being:

A person of unquestionable integrity as he or she deals with the
rights of people before the bar. A practitioner of the legal
profession does not have the liberty to flirt with the idea that
the end justifies the means, or any other rationalization that
would excuse less than complete honesty in the practice of the
profession. Certainly our Rules of Professional Conduct allow no
such flirtation.

In re Discipline of Mines, 523 N.W.2d 424, 427 (S.D. 1994).

[¶43.] In his representation of the Board of Ethics investigating a written

complaint against Staggers, Tornow informed the board that Staggers was a

committee precinctman, told Staggers that he did not bring up this issue to the

board, and admitted to Investigator Gering that he may have overstepped if he did

bring it up. In addition, when Staggers asked for a copy of their May 17th phone

conversation, Tornow said there “was/is no such recording,” knowing that the

conversation took place on May 18th and there was a recording. When his

supervisor, City Attorney Amundson, asked for a transcript of the Staggers phone

conversation, Tornow described it as a “personal record” that was “not on the city

system.” He also told Amundson that the recorded phone conversation was a

“personal copy” of a “non-public phone conversation” that he kept “in an employee’s

personal records.” It is clear, however, that Tornow obtained the recording in his

public capacity and not in a personal capacity outside the scope of his employment.

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[¶44.] Tornow’s repeated parsing of words and terms—“word-smithing” in his

own words—amounts to misrepresentation and is a clear violation of the Rules of

Professional Conduct. It is professional misconduct for a lawyer to violate these

rules and engage in conduct involving dishonesty, fraud, deceit or

misrepresentation. Rule 8.4(a); Rule 8.4(c). When representing a client, “a lawyer

shall not knowingly: (a) make a false statement of material fact or law to a third

person[.]” Rule 4.1. Misrepresentation can occur by “partially true but misleading

statements or omissions that are the equivalent of affirmative false statements.”

Comment, Rule 4.1.

[¶45.] An attorney must be “fully honest and forthright.” In re Discipline of

Wilka, 2001 S.D. 148, ¶ 15, 638 N.W.2d 245, 249. In addition, an attorney has an

obligation to use only truthful means. SDCL 16-18-19. Candor goes beyond telling

a portion of the truth. In re Discipline of Eicher, 2003 S.D. 40, ¶ 34, 661 N.W.2d

354, 365.

B

[¶46.] After Staggers requested a copy of the phone recording, Mayor

Huether forwarded Tornow’s request for guidance to Amundson, and Amundson

began questioning Tornow about the recording, Tornow transferred the recording to

his personal hand-held device and deleted it from the City’s IT system.

[¶47.] This deletion violated a city policy prohibiting an employee copying

data contained on city hardware or software to a portable storage device for

personal use without proper authorization. It also violated Rule 3.4 of the Rules of

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Professional Conduct:

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or
unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value.

This section “applies to evidentiary material generally, including computerized

information.” Id.

Subject to evidentiary privileges, the right of an opposing party,
including the government, to obtain evidence through discovery
or subpoena is an important procedural right. The exercise of
that right can be frustrated if relevant material is altered,
concealed or destroyed.

Comment, Rule 3.4

[¶48.] Tornow’s deletion of the recording from the City’s system after

Staggers’ request clearly indicates that he wanted to evade production of that

recording. More importantly, however, is Tornow’s admission to Investigator

Gering and, later, City Attorney Pfeifle that he was protecting the Board of Ethics

and himself in the event that the recording was subpoenaed. According to Pfeifle:

Beyond the clear violation of the Rules and negative impact on
the judicial system as a whole, Tornow’s actions would have
shattered the public confidence in the CAO [City Attorney’s
Office] almost beyond repair had Tornow’s attempted
destruction of evidence surfaced as part of any litigation
commenced by Staggers.

C

[¶49.] Tornow was aware that the Minnehaha County State’s Attorney’s

office prosecutes City Attorney’s office conflict cases and does so as a professional

courtesy. A few weeks before his daughter was cited for traffic violations by a City

police officer, Tornow was also a part of a City Attorney’s office discussion regarding

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the jurisdictional issue raised by a joint City and Lincoln County prosecution.

Tornow discussed the jurisdictional issue with Brendtro, his daughter’s retained

attorney. As a result, Brendtro moved to dismiss because the state’s attorney

lacked jurisdiction to prosecute. The motion was granted without prejudice.

[¶50.] The Disciplinary Board and the Referee concluded that Tornow’s legal

advice to his daughter’s attorney violated Rule 1.7(a)(2). That rule provides, in

part,

Except as provided by paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:

***

(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer’s
responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.

[¶51.] At oral argument, Tornow’s counsel argued that there was no violation

of this rule because there must be more than one client for a violation. The rule,

however, is not limited to concurrent conflicts of interest between one or more

clients. It includes “another client, a former client or third person or by a personal

interest of the lawyer.” In this case the conflict of interest was between Tornow’s

client, the City of Sioux Falls, and Tornow’s personal interest in his daughter’s case.

[¶52.] “Loyalty and independent judgment are essential elements in a

lawyer’s relationship to a client.” Comment, Rule 1.7. Tornow’s client for

approximately 16 years and during the timeframe of this case was the City of Sioux

Falls. On the eve of his daughter’s trial, however, Tornow allowed his family

relationship to “interfere with both loyalty and independent professional judgment.”

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Comment, Rule 1.7 [11]. Tornow gave legal advice, based on information obtained

in his representation of the City, to his daughter’s attorney who was representing

her on a city charge. By doing so, Tornow violated Rule 1.8(b):

A lawyer shall not use information relating to the
representation of a client to the disadvantage of the client unless
the client gives informed consent, except as permitted or
required by these Rules.

“The attorney is in effect a special agent limited in duty to the vigilant prosecution

and defense of the rights of the client and not to bargain or contract them away.”

Eicher, 2003 S.D. 40, ¶ 32, 661 N.W.2d 354, 365 (quoting NW. Realty Co. v. Perez,

80 S.D. 62, 65, 119 N.W.2d 114, 116 (1963)). Here, Tornow did not have the City’s

permission to divulge City information to Brendtro.

D

[¶53.] Following his daughter’s conviction, Tornow represented her on appeal.

In his brief to the circuit court, Tornow inserted disrespectful and insulting

invectives directed at the magistrate judge and prosecutor.

[¶54.] “It is the duty of an attorney and counselor at law to maintain the

respect due to the courts of justice and judicial officers.” SDCL 16-18-13.

A lawyer’s conduct should conform to the requirements of the
law, both in professional service to clients and in the lawyer’s
business and personal affairs. A lawyer should use the law’s
procedures only for legitimate purposes and not to harass or
intimidate others. A lawyer should demonstrate respect for the
legal system and for those who serve it, including judges, other
lawyers and public officials. While it is a lawyer’s duty, when
necessary, to challenge the rectitude of official action, it is also a
lawyer’s duty to uphold legal process.

Preamble, South Dakota Rules of Professional Conduct. SDCL ch. 16-18, Appx.

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[¶55.] In Credit Management Service v. Wendbourne, 76 S.D. 80, 82, 72

N.W.2d 926, 926-27 (1955), this Court reprimanded an attorney for injecting an

unwarranted attack on the trial judge in the appellant’s brief.

A brief in no case can be used as a vehicle for the conveyance of
hatred, contempt, insult, disrespect or professional discourtesy
of any nature for the court of review, trial judge, or opposing
counsel; invectives are not argument, and have no place in legal
discussion, but tend only to produce prejudice and discord.

The practice of inserting in briefs language which tends to bring
ridicule on the trial judge or jury or which impugns their
motives and conduct, is considered a very reprehensible one and
deserving of the strongest censure, and statements objectionable
in this regard will not be considered.

4 C.J.S., Appeal and Error, § 734 (2007) (footnotes omitted). Tornow’s language in

the appellate brief in his daughter’s case went far beyond acceptable reasoned legal

discourse.

APPROPRIATE DISCIPLINE

[¶56.] The appropriate discipline in a case depends on the seriousness of the

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

misconduct, and the prior record of the attorney. Russell, 2011 S.D. 17, ¶ 47, 797

N.W.2d at 89.

[¶57.] Misconduct is grounds for attorney discipline and includes the willful

violation of any of the duties of an attorney or counselor as prescribed in SDCL

chapter 16-18. SDCL 16-19-33(3). SDCL 16-19-35 provides:

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

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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.)

[¶58.] In this case, the Disciplinary Board recommended that the Supreme

Court publicly censure Tornow. SDCL 16-19-35(4). The referee recommended that

the Court remand the matter to the Disciplinary Board for “a private reprimand

and admonishment” by the Disciplinary Board.

[¶59.] The Referee is recommending a hybrid form of discipline. An

admonishment is not an authorized form of discipline for misconduct. See SDCL 16-

19-35. Rather, it is a finding by the Disciplinary Board that a rule violation

occurred, but there was no harm to a client greater than de minimus. In re

Discipline of Laprath, 2003 S.D. 114, ¶ 8, 670 N.W.2d 41, 46. A private reprimand

is a finding of a serious rule violation resulting in harm to a client, or an

intentional, serious rule violation. Id. If the Disciplinary Board determines that a

private reprimand is warranted and the accused attorney accedes, the Disciplinary

Board’s report to the Supreme Court constitutes a private reprimand, SDCL 16-19-

62, and the matter remains confidential. SDCL 16-19-99. In Tornow’s case,

however, formal disciplinary proceedings were instituted, SDCL 16-19-68, and the

matter became public, SDCL 16-19-99.

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[¶60.] Tornow has practiced law for twenty-five years and has had no

substantiated disciplinary complaints prior to the current complaint. Tornow spent

the early years of his career as a prosecutor in the Attorney General’s office and the

latter sixteen years of his career representing the City of Sioux Falls and

prosecuting violations of its ordinances. As a public sector lawyer and prosecutor,

Tornow was vested with powers that a lawyer in private practice does not have.

Tornow was a minister of justice obligated to guard the rights of the accused,

enforce the rights of the public, and see that justice was done without employing

improper methods. Russell, 2011 S.D. 17, ¶ 41, 797 N.W.2d at 87

[¶61.] Tornow is not a novice to the legal profession. He is a seasoned

attorney in a position of public trust. Tornow misled and made misrepresentations

to those he dealt with in an official capacity. He attempted to conceal a recording

that he knew had evidentiary value to protect himself. He used information

received in the course of his official capacity to work against the interests of his

client which happened to be a public entity. He allowed a family relationship to

interfere with his loyalty to his client and cloud his legal judgment. He wrote an

appellate brief that disparaged a judge and the prosecutor.

[¶62.] These acts were not isolated, foolish, negligent or done in the heat of

trial; they were intentional and numerous. Mattson, 2002 S.D. 112, ¶ 55, 651

N.W.2d 278, 289. With all of the incidents, Tornow had sufficient time to reflect

before engaging in conduct that was personally and professionally offensive and

flagrantly disrespectful. Eicher, 2003 S.D. 40, ¶ 29, 661 N.W.2d 354, 364. While he

has attempted to minimize his conduct and its effects, he failed to use the law’s

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procedures for legitimate purposes and demonstrated a lack of respect for the legal

system and those who serve it. See SDCL 16-18-13; SDCL 16-18-14; Preamble,

South Dakota Rules of Professional Conduct. SDCL 16-18 Appx.

[¶63.] While his removal from the City Attorney’s Office in the short term

could cause one to conclude the risk of such future misconduct is slight, our scope of

review is broader than that--it is for the future protection of the public from all

members of the bar who are tempted to engage in such misconduct. This stems

from our duty to protect the public that not only includes future protection from the

attorney now before us, but extends to each and every member of the Bar in South

Dakota. Sadly we do not write on a clean slate. We have faced this issue all too

frequently where lawyers play fast and loose with the truth and obligation of

candor whether one calls it “word-smithing” or something else. The same can be

said for abuse of the powers that come with the privilege of the practice of law. See

Russell, 2011 S.D. 17, 797 N.W.2d 77; Wilka, 2001 S.D. 148, 638 N.W.2d 245; In re

Discipline of Dorothy, 2000 S.D. 23, 605 N.W.2d 493; In re Discipline of Light, 2000

S.D. 100, 615 N.W.2d 164; In re Discipline of Claggett, 1996 S.D. 21, 544 N.W.2d

878; Mines, 523 N.W.2d 424; In the Discipline of Bihlmeyer, 515 N.W.2d 236, (S.D.

1994); In re Discipline of Taylor, 498 N.W.2d 200 (S.D. 1993); In re Discipline of

Schmidt, 491 N.W.2d 754 (S.D. 1992).

[¶64.] We are not bound by the recommendations of the Disciplinary Board or

the Referee although we give them the careful examination they deserve. Here they

are not the same. In the end we are charged with the exercise of our independent

judgment for the protection of the public.

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[¶65.] Tornow’s conduct in this case, combined with his lack of respect for the

legal system, his attack on a judge who sat on his daughter’s case in which he

participated, and his minimization of his conduct, cannot be overcome by his prior

lack of complaints. While a prior record free of such misconduct is obviously a goal

of any attorney, the ethical requirements of an attorney must be met each day.

“Note that this is a continual and on-going obligation. Each day of an attorney’s life

demands that these requirements be met anew.” Eicher, 2003 S.D. 40 at ¶ 25, 661

N.W.2d at 363, (quoting In re Ogilvie, 2001 S.D. 29, ¶ 56, 623 N.W.2d 55, 67

(Gilbertson, J., dissenting)). The public is not protected from future misconduct by

the unrepentant. Ortner, 2005 S.D. 83, ¶ 27, 699 N.W.2d 865; In re Discipline of

Arendt, 2004 S.D. 83, 684 N.W.2d 79; Eicher, 2003 S.D. 40, 661 N.W.2d 354; Wilka,

2001 S.D. 148, ¶ 13, 638 N.W.2d 245. This conduct falls well short of our mandate

under SDCL 16-19-31 that we as Justices of this Court, certify to the public that

Tornow 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.”

[¶66.] Tornow’s conduct was of a serious professional nature. It is in the best

interests of the public and the legal profession that it warrants his public censure

by this Court. He shall be taxed and required to pay, allowable costs and expenses

as provided by SDCL 16-19-70.2.

[¶67.] SEVERSON and WILBUR, Justices, concur.

[¶68.] KONENKAMP and ZINTER, Justices, concur with a writing.

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KONENKAMP, Justice (concurring specially).

[¶69.] I fully concur with the Court’s conclusions on Tornow’s ethical

violations and his equivocal acknowledgment of responsibility. I also concur with

the discipline the Court imposes. I write to advocate for a consistent and uniform

system for applying disciplinary measures in harmony with our often-stated goals of

(1) protecting the public, (2) deterring like conduct by other attorneys, and (3)

maintaining professional ethics. See In re Discipline of Mattson, 2002 S.D. 112, ¶

39, 651 N.W.2d 278, 286. Such a system already exists: the ABA Standards for

Imposing Lawyer Sanctions. Other states use the ABA Standards or have adapted

them to their particular needs. We have often referred to these Standards in our

previous disciplinary cases but have not endorsed them for consistent use. 4 See,

e.g., In re Discipline of Light, 2000 S.D. 100, ¶ 13, 615 N.W.2d 164, 168 (citing ABA

Standards for Imposing Lawyer Sanctions); In re Discipline of Claggett, 1996 S.D.

21, ¶ 16, 544 N.W.2d 878, 881 (same).

[¶70.] Our constitution requires us to oversee the admission and discipline of

lawyers. S.D. Const. art. V, § 12. As part of this duty, we should impose discipline

evenhandedly and consistently. Otherwise, we “cast doubt on the efficiency and the

basic fairness of all disciplinary systems.” See ABA Standards for Imposing Lawyer

Sanctions, Preface (1991) (in Westlaw as ABA-SILS Preface). If sanctions are too

lenient, future conduct will not be deterred, and the public will lose confidence in

4. See William A. Williams, The Whole is Greater Than the Sum of the Parts:
The Discipline of Benjamin J. Eicher, Attorney at Law, 49 S.D. L. Rev. 373,
395 n.182 (2004) (noting that although in certain cases we have used the
Standards for guidance, we have “not adopted or implemented” them).
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our legal system. If sanctions are too severe, lawyers might be reluctant to report

misconduct, again causing lower public confidence in our system. See id.

[¶71.] To achieve the degree of consistency necessary for fairness to the

public and the bar, along with reliability and trust in our disciplinary process, the

ABA Standards for Imposing Lawyer Sanctions should be used regularly as

discretionary guidelines. 5 At the very least, the Standards provide a helpful listing

of essential considerations. They will aid referees appointed to adjudicate and

recommend discipline to this Court. And, if they are not already being used, the

Standards will assist our Disciplinary Board with its functions, including private

disciplinary actions, which never come before this Court. 6 Furthermore, as an

increasing number of lawyers practice in multiple states, these Standards allow for

consistency in imposing disciplinary sanctions for the same or similar offenses

within and among jurisdictions.

[¶72.] When imposing sanctions for misconduct, the Standards begin by

asking the following questions:

(1) What ethical duty did the lawyer violate? (A duty to a client,
the public, the legal system, or the profession?)
(2) What was the lawyer’s mental state? (Did the lawyer act
intentionally, knowingly, or negligently?)

5. See Sarah A. Hirsch, The Illusive Consistency: A Case for Adopting the ABA
Standards for Imposing Lawyer Sanctions in In re Martin, 40 S.D. L. Rev.
300 (1995).

6. Disciplinary boards in some states use the ABA Standards even when the
courts do not. Levin, The Emperor’s Clothes and Other Tales About the
Standards for Imposing Lawyer Discipline Sanctions, 48 Am. U. L. Rev. 1, 34,
n.157 (1998).
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(3) What was the extent of the actual or potential injury caused
by the lawyer’s misconduct? (Was there a serious or potentially
serious injury?)[.]

ABA-SILS Framework; see also Light, 2000 S.D. 100, ¶ 13, 615 N.W.2d at 168.

[¶73.] We ordinarily start with the notion that the most important ethical

duties are those owed to the client, which are the duties of loyalty, diligence,

competence, and candor. But a lawyer also owes a duty to the general public and

the legal system to abide by the rules in the administration of justice. And a lawyer

owes a duty to the legal profession, related to fees, the practice, and the integrity of

the profession. See ABA-SILS Framework.

[¶74.] In assessing the lawyer’s mental state, the Standards focus on

culpability. What was the lawyer’s conscious objective or purpose in accomplishing

a particular result? The most culpable state is acting with intent, next with

knowledge, and lastly, and least culpable, with negligence. Id.

[¶75.] When assessing the extent of injury, “injury” is defined as “harm to a

client, the public, the legal system, or the profession” from the lawyer’s misconduct.

ABA-SILS Definitions. Injury is measured in reference to the specific duty violated

and examined against the extent of actual or potential harm. There can be serious

injury, injury, or little to no injury. Id.

[¶76.] After answering the first three questions, the Standards then move to

any aggravating or mitigating circumstances in guiding which sanction to impose.

These circumstances relate, not to the offense at issue, but to matters relevant to

fitness to practice law or to matters arising during the disciplinary proceedings.

ABA-SILS Standard 9.1. Aggravating factors include: “(a) prior disciplinary

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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, false statements, or other deceptive practices during the disciplinary

process; (g) refusal to acknowledge the wrongful nature of the conduct; (h)

vulnerability of victim; (i) substantial experience in the practice of law; (j)

indifference to making restitution; and (k) illegal conduct, including that involving

the use of controlled substances.” ABA-SILS Standard 9.2.

[¶77.] Mitigating factors include: “(a) absence of a prior disciplinary record;

(b) absence of a 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 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-SILS Standard 9.3.

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[¶78.] Using the ABA Standards for Imposing Lawyer Sanctions as a

framework can forestall the hazard of merely subjective discipline. As another

court noted, “[o]ur review is often hampered by the absence of a clear explanation of

the reasons for selecting a particular sanction. Reference to the ABA Standards will

lead to well-reasoned decisions that will facilitate meaningful review.” Grievance

Adm’r v. Lopatin, 612 N.W.2d 120, 128 (Mich. 2000). Of course, the Standards will

not answer every question that may arise in a disciplinary proceeding, but their

regular use as guidelines can add a greater measure of uniformity and consistency

to South Dakota’s vital interest in maintaining the highest ethical standards for its

lawyers.

ZINTER, Justice (concurring).

[¶79.] I join the opinion of the Court. I also agree with Justice Konenkamp’s

observation that the ABA Standards for Imposing Lawyer Sanctions provide a

helpful, discretionary framework for analysis in this and other discipline cases.

Although we have not adopted those standards, we have referred to them for

guidance in numerous decisions of this Court. See In re Discipline of Russell, 2011

S.D. 17, ¶ 49, 797 N.W.2d 77, 90; In re Discipline of Janklow, 2006 S.D. 3, ¶ 18, 709

N.W.2d 28, 34-35; In re Discipline of Ortner, 2005 S.D. 83, ¶ 49 n.6, 699 N.W.2d 865,

880 n.6; In re Discipline of Laprath, 2003 S.D. 114, ¶ 86 n.4, 670 N.W.2d 41, 66 n.4;

In re Discipline of Mattson, 2002 S.D. 112, ¶ 57, 651 N.W.2d 278, 290; In re

Discipline of Light, 2000 S.D. 100, ¶ 17, 615 N.W.2d 164, 168-69; In re Pier, 1997

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S.D. 23, ¶ 8, 561 N.W.2d 297, 299; In re Discipline of Claggett, 1996 S.D. 21, ¶ 16,

544 N.W.2d 878, 881.

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