In re the Recommendation of the Board of Bar Examiners for the Conditional Admission of Ogilvie

AMUNDSON, Justice.

[¶ 1.] John C. Ogilvie Jr. petitioned this Court for admission to practice law in the State of South Dakota. This Court grants Petitioner conditional admission.

FACTS

[f 2.] In 1997, Ogilvie graduated from the University of Wyoming School of Law, an ABA accredited law school. That same year, Ogilvie sat for and passed the South Dakota Bar Examination. Prior to admission, however, the Board of Bar Examiners inquired into Ogilvie’s past to determine whether he had the requisite level of character and moral fitness to practice law. Areas of concern included two DUI arrests, him being fired for failing a drug test indicating marijuana use, alleged acts of physical abuse of a girlfriend that resulted in the issuance of two temporary restraining orders, and allegations of interference with a divorce proceeding.

[¶ 3.] The Board conducted two hearings in regard to the initial application, on November 18, 1997, and on June 8, 1998, respectively. Although the Board had concerns about these apparent problems, it nevertheless recommended that Ogilvie be admitted to practice law in South Dakota on a conditional basis for three years. This Court, however, did not accept the Board’s recommendation and denied Ogil-vie’s admission.

[¶ 4.] In 1999, Ogilvie reapplied for admission. The Board, without reservation, believed Ogilvie’s explanations for the somewhat conflicting and sometimes unfounded allegations charged against him. Based on this third hearing before the Board, where he and others testified on his behalf, the Board unanimously agreed to recommend admission to the South Dakota Bar. Because he was unable to practice law in the interim time period between hearings, Ogilvie requested that his bar admission include supervision by a mentoring attorney for a year. The Board incorporated the suggested mentorship condition into its recommendation to this Court.

DECISION

[¶ 5.] Although we are not bound to accept the Board of Bar Examiners’ recommendation, we give it “careful consideration.” Petition of Reutter, 500 N.W.2d 900, 902 (S.D.1993); Petition of Draeger, 463 N.W.2d 346, 347 (S.D.1990); Petition of Husby, 426 N.W.2d 27, 28 (S.D.1988); see also In Re Widdison, 539 N.W.2d 671 (S.D.1995). A second-time applicant must prove good character and moral fitness to the standard of clear and convincing evidence. See SDCL 16-16-2.2; Petition of Trygstad, 435 N.W.2d 723, 724 (S.D.1989), aff'd. on reh’g, 447 N.W.2d 360 (S.D.1989); Petition of Reutter, 500 N.W.2d at 901. “[U]nless we hold denial of [admission] is final and unalterable, a position never taken previously, we must be open to the possibility that [an applicant] can so thoroughly reform that [admission] becomes fair and reasonable.” In Re Pier, 1997 SD 23, ¶ 9, 561 N.W.2d 297, 300.

[¶ 6.] Ogilvie showed to the satisfaction of the Board that he had the requisite moral character to practice law in South Dakota. Ogilvie appeared forthright and candid about the concerns of the Board both in person and through documentation. For example, he listed the two DUI convictions, and the two protection orders placed against him by a former girlfriend on his bar application. A drug and alcohol counselor, Ms. JoSee Suess, examined Ogilvie as to his propensity towards substance abuse. Her expert opinion dispelled any concern the Board had of Ogilvie’s drinking or drug use. Other witnesses, as well as Ogilvie, testified as to the other incidents of concern and his *57character.1 The Board found Ogilvie and the other witnesses to be credible. By the Board’s assessment, the perceptions and explanations of the events by these witnesses dispelled the concerns of the Board.

[¶ 7.] Ogilvie, as required by statute,2 has demonstrated that his “candor in the admission process” has been exemplary; that there was sufficient “evidence of rehabilitation” as offered by Ms. Suess and a Certificate of Completion of a Men’s Domestic Violence Education Class offered at Lutheran Social Services; and that the “reliability of the information concerning the conduct” of his other transgressions had been clearly offset by the overwhelming testimony by him and others. It has also been two years since the last time we reviewed this application. It is important to note that there have been no reports of misconduct over that time. Thus “recency of conduct” should also favor Ogilvie under SDCL 16-16-2.4(b) as the incidents of concern occurred primarily in 1992. The Board carefully considered the factors listed in SDCL 16-16-2.4, and found, in part, in the Board’s Finding of Fact # 14 that “[t]he Board now has no further fingering doubts as to Mr. Ogilvie’s character and fitness to practice law.” There is nothing contrary, in the record, to this finding.

[¶ 8.] In response to the dissenters, this Court should focus its attention on the third hearing rather than placing too much emphasis on the first and second hearing. The dissent of board member Jim Leach torpedoed the conditional admission recommended by a majority of the Board following the second hearing. A majority of this Court followed the recommendation of the Leach dissent when originally considered and denied Ogilvie admission. The order of this Court permitted Ogilvie “to reapply at some future time,” which Ogilvie did. After a third hearing, in accordance with directions of this Court, the Board unanimously recommended conditional admission. The dissenters embrace a position contrary to the Board and again breathe new fife into the Leach dissent by totally disregarding the good and honest efforts put forth by the Board.3 The Board, which is comprised of well-respected persons in the legal community, made its well-reasoned decision to allow Ogilvie conditional admission to practice law in our state.4

*58[¶ 9.] If we are to allow a denied applicant the chance to come before us at a future date, then we should place greater emphasis on the applicants moral character exhibited from the time of denial. Otherwise by allowing applicant’s to reapply at a future date would become no more than an exercise in futility. It is worth repeating that “unless we hold denial of [admission] is final and unalterable, a position never taken previously, we must be open to the possibility that [an applicant] can so thoroughly reform that [admission] becomes fair and reasonable.” In Re Pier, supra. The dissenters would rather, despite our permission for this applicant to reapply to come before us, defeat Ogilvie’s admission based solely on evidence previously considered. The transcript of the third hearing along with the recommendation by the Board supports our decision today.

[¶ 10.] While the standard of review is de novo, we should give some deference to the Board regarding character and credibility. The Board is in a much better position than this Court as we are limited to the cold record in assessing an applicant’s personal traits. See SDCL 1-26-36. There is no question that this applicant is not “squeaky clean.” There is also no question that “squeaky-clean” is not the standard. In light of Ogilvie’s prior indiscretions, the Board found that Ogilvie had the requisite level of good moral character to practice law. I submit that Ogilvie is deserving of the chance to prove the Board right. There is no doubt Ogilvie’s conduct will be viewed as if he was under a microscope throughout this conditional period. After such close diagnostic observation, this Court will again have the opportunity to again consider whether to lift the condition of this admission based on Ogilvie’s showing that such lifting is appropriate.

[¶ 11.] We determine that Ogilvie has carried his burden of proving good moral character as required under SDCL 16 — 16— 2.2. As a part of his admission, however, this Court determines that a three-year mentorship period is in the best interests of Ogilvie and the public. Therefore, this Court adopts the principle of mentorship, but also attaches certain obligations of Og-ilvie. In implementing the mentorship arrangement, it is Ogilvie’s obligation to select a mentor, which must be approved by both the Board of Bar Examiners and this Court. Both Ogilvie and his mentor must report on a quarterly basis to the Board as to Ogilvie’s current status in his practice of law for the next three years. Furthermore, Ogilvie will agree to supply any records regarding chemical dependency assessments requested by the Board during the conditional period. It is incumbent upon Ogilvie to comply with every condition set by this Court. Ogilvie’s conditional admission is subject to revocation if he fails to adhere to any of these conditions.

[¶ 12.] The Court agrees with the Board’s recommendation and Ogilvie is granted admission to practice law in the State of South Dakota with the conditions provided herein.5

[¶ 13.] SABERS, Justice, concurs. [¶ 14.] KONENKAMP, Justice, concurs with a writing. [¶ 15.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

. As character witnesses, Margaret Steinbeck, a sister and circuit court judge in the state of Florida, and Tim Ogilvie, a brother and president of a technology company, testified on John Ogilvie’s behalf.

. Under SDCL 16-16-2.4, in reviewing the relevant conduct identified in § 16-16-2.3 the Board shall consider:

(a) Applicant's age at the time of the conduct;
(b) Recency of conduct;
(c) Reliability of the information concerning the conduct;
(d) Seriousness of the conduct;
(e) Factors underlying the conduct;
(Í) Cumulative effect of conduct or information;
(g) Evidence of rehabilitation; and
(h) Applicant’s candor in the admission process.

. The dissenters fail to recognize that Jim Leach recused himself from participating in the third hearing and final decision. The dissenters cannot claim that Leach would have voted the same way as he did previously. Speculation and conjecture by this Court should not substitute for the actual findings made by those who participated at the hearing. The dissenters aim their frustration at the Board, Ogilvie and Ogilvie’s counsel for their respective conduct at the third hearing. For example, the dissenters widely criticize Ogilvie’s counsel for attempting to have Leach removed from participation in the third hearing. It is noteworthy that Leach himself agreed with Ogilvie’s counsel that he would have also attempted to have someone like himself disqualified and found counsel’s actions reasonable and within the realm of proper decorum. For the dissenters to portray Oglivie's counsel as disingenuous demeans the elementary purpose of retaining counsel — to protect the rights and interests of the client. While this Court is not exalting the virtuosity of the procedures taken by Ogil-vie’s counsel, we are not about to admonish them either.

.It is also important to point out that this Court appoints members to the Board of Bar Examiners. See SDCL 16-16-3. To discredit *58the Board’s hard work, as the dissenters have done, makes it a wonder why one appoints a Board to conduct hearings of this nature.

. By order of this Court, dated October 16, 2000, Mr. Ogilvie, the Board of Bar Examiners and the State Bar were permitted to submit briefs for our consideration. The State Bax declined to participate by not submitting a brief on its behalf.