In Re the Discipline of Dorothy

AMUNDSON, Justice

(concurring).

[¶ 59.] Dorothy has represented himself all through these proceedings. Along the way, this case has generated a blizzard of paper. In Dorothy’s final response he argues that the referee’s decision-making process was flawed. This was, he claims, caused by “two well-established, unconscious, psychological mechanisms of decision making, known as ‘selective perception’ and ‘cognitive dissonance.’ ”19

*512[¶ 60.] Further, Dorothy argues that if he has two attorneys testify that in their opinion there was no conduct by Dorothy which violated any provisions of the Rules of Professional Conduct, the court should abdicate their decision-making authority to these practitioners. Dorothy seems to forget that the final decision on discipline is with this Court and not with any experts. Certainly, expert testimony can be considered, but this Court is not obligated to accept it hook, line, and sinker. After reviewing this voluminous record, I am reminded of a quote attributed to Abraham Lincoln which I heard for the first time back in law school, “A man who represented himself had a fool for a client.” See Taylor v. State, 20 Md.App. 404, 316 A.2d 296, 298 (1974).

[¶ 61.] Dorothy concluded by requesting that this Court “view the facts and documents objectively, without selective perception and without ignoring or giving little weight to facts which cause cognitive dissonance[.]” Counsel can rest assured that this matter has been impartially reviewed with no preconceived thoughts as to what the outcome should be, notwithstanding being the recipient of a guaranteed salary and not having been in the private practice for a number of years. Although Dorothy might not agree with the final decision on discipline, so be it, and he is actually free to chastise the decision, since this Court places no muzzle on a person’s right to express their opinions.

[¶ 62.] This Court has considered numerous attorney discipline cases which have resulted in public censure. In Discipline of Lacey, 283 N.W.2d 250, 250-51 (S.D.1979), attorney Lacey, a well-respected attorney of over fifty years, made remarks about state courts being incompetent and crooked. During his professional career, Lacey was elected to ten terms in the South Dakota House of Representative. Id. at 253. However, Lacey was later diagnosed with muscular dystrophy and, at oral arguments, Lacey’s condition deteriorated to the extent that he was confined to a wheelchair. Id. We found that Lacey was attempting to zealously represent his client, but due to his deteriorating condition from ah incurable disease, Lacey was unable to objectively view the proceeding against him. Id. Lacey, however, steadfastly refused to acknowledge his wrongdoing. Id. Based upon Lacey’s “disavowal of any intention to make similar statements, his long years of active, honorable practice, his service in public office, his deteriorating condition, and his limited ability to engage in the active, day-to-day practice of law,” public censure was appropriate. Id.

[¶ 63.] In Discipline of Theodosen, 303 N.W.2d 104, 105 (S.D.1980), attorney Theodosen exercised undue influence in a will preparation. Theodosen’s conduct in requesting appointment as executor of the will which he infected with his undue influence, willingness to serve as attorney, and his subsequent withdrawal of his appointment request only upon the will being challenged, all gave rise to an appearance of impropriety. Id. at 107. This Court imposed public censure as the proper discipline of Theodosen.

[¶ 64.] Three years later, in Discipline of Rensch, 333 N.W.2d 713, 714 (S.D.1983), attorney Rensch intentionally deceived the court by misrepresenting to a judge about *513his fee arrangement with the indigent client. Rensch’s conduct was found to be a serious breach of professional ethics and prejudicial to the administration of justice; therefore, Rensch was publicly censured. Id. at 716.

[¶ 65.] In Discipline of Kirby, 336 N.W.2d 378, 379 (S.D.1983), Kirby had neglected to represent the heirs of an estate for 3 years and also failed to promptly respond to letters from the disciplinary board. Kirby admitted his mistakes and identified a multitude of personal problems that led to these mistakes. Id. at 380. Based upon all of the circumstances in the case and the fact that there was no showing of financial loss due to the delays, public censure was imposed. Id.

[¶ 66.] In Discipline of Schmidt, 491 N.W.2d 754, 754 (S.D.1992), Schmidt had filed an affidavit to secure his brother the right to participate in a trial in South Dakota, but had falsely stated on the affidavit that his brother had NOT had disciplinary actions filed against him. We found that Schmidt’s omission constituted a misrepresentation to the court and was “essentially a false statement of material fact.” Id. at 755. This Court ultimately found that the proper discipline of Schmidt for his intentional omission was public censure. Id. at 756.

[¶ 67.] This Court, in Discipline of Kallenberger, 493 N.W.2d 709, 710 (S.D.1992), was faced with attorney Kallenberger’s guilty plea for failure to file sales tax returns. Kallenberger had repeatedly filed his returns late. Id. Public censure was imposed because Kallenberger’s repeated conduct of late filings showed an indifference to his legal obligations. Id. at 712. The same year as Kallenberger, this Court heard Discipline of Taylor, 498 N.W.2d 200, 200 (S.D.1993), where an attorney, Taylor, made untrue representations to his clients about the progress of the case through the legal system. In awarding public censure, this Court noted that Taylor had confessed his wrongdoing and had cooperated with the disciplinary board. Id. In addition,' other than this instance, Taylor’s performance “has always been highly professional.” Id. Finally, Taylor had also displayed his willingness to take whatever steps possible to ensure that this would not happen again. Id.

[¶ 68.] In Discipline of Bihlmeyer, 515 N.W.2d 236, 237 (S.D.1994), the disciplinary action arose out of Bihlmeyer’s handling of contingent fees. While Bihlmeyer’s conduct of overcharging was dishonest and prejudicial to the profession, public censure was awarded. Id. at 239. Bihl-meyer had admitted that he made the misrepresentations about the contingent fees, and apologized for his actions. Id. He had also made efforts to rectify his mistakes and had fully compensated his client after his misconduct. Id. In awarding public censure, we noted that although Bihlmeyer’s conduct of rectifying his mistake “does not absolve [him] from discipline, it certainly constitutes conduct on his part to correct his error.” Id.

[¶ 69.] In Discipline of Mines, 523 N.W.2d 424, 425 (S.D.1994), Mines told the circuit judge that he had filed a complaint in federal court which actually had not yet been filed. Upon learning it had not been filed, the attorney did not tell the judge, nor did he try any other means to correct the situation. Id. This Court noted that giving Mines the “benefit of the doubt” that his misstatement to the circuit judge was made in good faith, the fact remains, Mines continued his silence after learning of the non-filing. Id. at 427. Therefore, we found that because deceit did exist, no discipline less severe than a public censure would be considered. Id. at 426. Ultimately, this Court imposed the discipline of public censure after noting that Mines did express regret for his wrongdoing. Id. at 427.

[¶ 70.] Finally, in our most recent public censure case, Discipline of Claggett, 544 N.W.2d 878, 879 (S.D.1996), the guardianship estate’s attorney (Claggett) borrowed funds from the estate and later repaid *514them. In imposing a judgment of public censure, this Court found that a severe sanction was not appropriate because Claggett had no prior misconduct pattern, Claggett intends to refrain from working on future guardianships, Claggett’s misconduct arose from a unique family relationship and the likelihood of its reoccur-rence is unlikely, Claggett has changed his office practice and, finally, Claggett had acknowledged his misconduct and appeared repentant to the Court. Id. at 880.

[¶ 71.] There is no question in my mind that Dorothy is convinced that his spin on the complaints, testimony of various witnesses, and contents of the documentary evidence is one hundred percent accurate. As well, he should be. I must say that I do not view the case in the same light. In preparing written arguments for consideration on appeal, George Kennedy et al., The Writing Book 36 (1984) states “[a]sk yourself the two most important questions: ‘Do I understand this?’ ‘Can I explain it to my reader?’ Don’t be satisfied until the answer to both is yes.” After reviewing Dorothy’s final response in this matter, which contained an assault on how the referee’s gray matter functioned in his decision-making process, I would have to say my answer to question two above would be “no.” Whether or not to impose discipline is to be decided on a case by case basis, but we can review past precedent, set forth above, in deciding whether or not to impose discipline. In my opinion, a public censure in this case is justified and amounts to a minimal imposition rather than a maximum imposition which could be imposed under the options contained in the statute.

. In Dorothy's final response brief to this Court, filed on November 2, 1999, Dorothy stated the following:

28.One could argue, as Mr. Zastrow does, that Judge Severson, Tom Farrell, and Rick Yarnall did not have a full understanding of all the pertinent facts as Judge Von Wald did, and that Judge Von Wald’s opinion is, therefore, more credible than theirs. But, Rory King sat through the testimony of the hearing on the ethical allegations, and had over 40 hours reviewing the facts before they were ever presented to Judge Von Wald. He reached the conclusion that Charles Dorothy violated no ethical provisions in representing the Hoovers or Mr. Flugge.
29. How could two well-trained, experienced, and respected lawyers, who observed the same testimony and reviewed the same Exhibits, come to diametrically opposed opinions?
30. How can reasonable legal minds, applying the same ethical rules to the same facts, come up with opposite conclusions?
31. In the opinion of the author of this Response, part of the reason is the operation of two well-established, unconscious, psychological mechanisms of decision-making, known as "selective perception” and "cognitive dissonance.” [See Scott Plaus, The Psychology of Judgment and Decision Making Chapters 1 and 2 (McGraw-Hill, Inc., 1993)].
32. "Selective perception” is the fact that all decision makers unconsciously identify, interpret, place value on, and even ignore, facts based upon preconceived *511notions that are a result of their own experiences and beliefs, their concepts of themselves and those around them, their concept of the organizations they are part of, and how they relate to those people and organizations. [Psychology § 1].
33. Cognitive dissonance is the fact when a decision-maker receives facts that are inconsistent with his or her pre-conceived notions, he or she subconsciously tries to eliminate the conflict, sometimes to the point of ignoring facts inconsistent with those preconceived notions. [.Psychology § 2].
34. Judge Von Wald is a Circuit Court Judge. He is rightfully proud of being a member of the South Dakota Judiciary. He believes that Judges, as a general rule, have legal skills equal to or superior to private practitioners. Consequently, another Judge's decision is to be given great deference. He believes that Judges have a duty to oversee the activities of lawyers who appear before them, including determination whether the fees á lawyer charges is reasonable from a Judge's prospective. He believes the Disciplinary Board is an extension of the Judicial Branch that he is a member of, and that their decisions should be given great deference. For him to conclude that Judge Srstka made various decisions that kept Mr. Flugge at risk of litigation expenses if he did not settle a questionable claim, and that those decisions caused Mr. Flugge to take out his frustration and anger on his attorney, Mr. Dorothy, was not consistent with his preconceived notions of how another member of the bench would handle litigation, or how clients react to Judges' decisions. For him to conclude that Judge Tucker had irregularly handled Dorothy Law Firm’s collection action against the Hoovers, and that such handling caused Judge Tucker to reach a conclusion that was not consistent with the documentary evidence he admitted into evidence (i.e. he had placed undue emphasis on the oral testimony of the Hoovers when the documentary evidence he admitted into evidence revealed that these oral statements were inconsistent with prior sworn statements of the Hoovers) was not consistent with his preconceived notions of how Judges handle their cases. To accept the fact that the Disciplinary Board had based its decision in considerable part on the validity of Judge Tucker’s findings and opinions, and there was serious question as to the validity of those findings and opinions, was inconsistent with his preconceived notions of the validity of Judge’s decisions and the Disciplinary Board's right to rely on such decisions. To have accepted these facts would have caused significant cognitive dissonance. So, the facts Judge Von Wald’s mind focused on and gave weight to were those that were consistent with his preconceived notions and that eliminated cognitive dissonance. He could not empathize with Mr. Dorothy because, as a Judge, he could not imagine being told he would not receive a month's salary because of the outcome of a matter he handled, which is what the Hoovers did to Mr. Dorothy. (Emphasis added).
35. Rory King is an attorney. He is rightfully proud of being a private practitioner. He believes that private practitioners, as a general rule, have legal skills equal to or superior to those of Judges. He does not receive a salary from the judicial branch of the government. He receives his income by being paid by a variety of private citizens and private businesses who retain him to represent them. He operates in the business world of private contracts, where there is a wide variety of types and quality of legal services rendered depending upon what the client wants and will pay for. He does not operate in the structured governmental world of statutes, rules, regulations, and guaranteed salaries, until he handles litigation. As an experienced trial lawyer, he is acutely aware that Judges and trial lawyers are human and often unintentionally make mistakes as they perform their respective tasks in good faith. As an attorney who represents attorneys accused of legal malpractice, he is acutely aware that clients, disgruntled by the decisions of Judges and Juries, accuse their attorneys of a wide variety of wrongdoing when the decision of the Judge or Jury is adverse to them. His mind focused on those facts which establish that both Mr. Flugge and the Hoovers were very demanding clients who decided to punish their lawyer when they did not get the decision they wanted from the judges handling their cases, even though they were intimately involved in the handling of their legal matters and had authorized and approved all of the attorney’s actions in the matters. And, they were willing to make false statements under oath to accomplish their objectives of punishing their lawyer. (Emphasis added).
36. On page 21, The Psychology of Judgment and Decision Making, concluding its discussion on selective perception, states:
Consequently, before making an important judgment or decision, it often pays to pause and ask a few key questions: Am I motivated to see things a certain way? *512What expectations did I bring into the situation? Would I see things differently without these expectations and motives? Have I consulted with others who don’t share my expectations and motives? By asking such questions, decision makers can expose many of the cognitive and motivational factors that lead to biases in perception.
37. To declare that the testimony of respected and experienced lawyers familiar with facts of the dispute are unnecessary and inadmissible in disciplinary proceedings regarding attorneys would prevent the Referee and this Court from having the insight of other attorneys' views or perspectives so, as decision makers, the Referee and this Court can attempt to overcome any preconceived notions and be as open minded and objective in their decision making as possible.