SEVERSON, Justice.
[¶ 1.] This is a disciplinary proceeding against Lance Russell, a member of the State Bar of South Dakota. The Disciplinary Board of the State Bar recommended that Russell be publicly censured. The Referee, Retired Justice Robert A. Miller, also recommended a public censure. In his brief in response to the Referee's findings of fact, conclusions of law, and recommendation, Russell asks this Court to dismiss the Board's and the Referee's recommendation. At oral argument, however, Russell's counsel told the Court that a "private censure" with conditions imposed to ensure that the conduct resulting in these proceedings does not reoccur would be appropriate.
[¶ 2.] Russell graduated from the University of South Dakota School of Law in 1999. He passed the South Dakota bar examination and was admitted to practice law on January 10, 2000.
[¶ 3.] After graduating from law school, Russell clerked for the circuit court in Deadwood, South Dakota for a year. He then entered the private practice of law in Hot Springs, South Dakota. In 2000 he was elected State's Attorney for Fall River County. Russell was reelected in 2004. In 2008 Russell chose not to seek a third term. Instead, he ran for and was elected to the South Dakota Legislature, representing District 30 in the House of Representatives. Russell was reelected to this position in 2010.
[¶ 4.] During the pendency of this disciplinary proceeding, the only one ever filed against him, Russell completed a LL.M. program in environmental law at the University of Denver. While Russell told the Disciplinary Board that he would like to practice in some capacity in the areas of environmental law and natural resources law, he told this Court that his plans are uncertain until this disciplinary matter is resolved.
[¶ 5.] The focus of this disciplinary proceeding was two-fold. First it examined Russell's use of the grand jury to investigate a controversial golf course expansion project in Hot Springs and Russell's release of the grand jury transcript to the public. Second, it examined Russell's issuance of a press release criticizing and blaming Judge Jeff Davis for the trial delay in the homicide case of State v. Fast Horse.
[¶ 6.] In 2002 the Common Council of Hot Springs entered an agreement with Steve and Carla Simunek for the construction of an additional nine holes to the Hot Springs golf course.
[¶ 7.] In November 2006, Russell was approached by a number of people including Steven Schjodt, a civil engineer for the Army Corps of Engineers and a contributor to Russell's campaigns, and asked to draft a petition to recall Hot Springs Mayor Carl Oberlitner for misconduct, malfeasance, corruption, oppression, and gross partiality in the sale of the Carnegie Library and the development of the new nine holes to the municipal golf course. Russell asked for Schjodt's input in drafting the petition and Schjodt suggested revisions.
[¶ 8.] By 2007 the South Dakota Department of Legislative Audit had completed an investigation of the golf course project at the direction of the Attorney General's office. No criminal action resulted. The Department of Revenue was in the midst of auditing the records of the project's general contractor, and the city of Hot Springs was in litigation with the general contractor concerning the cost of the project and sufficiency of the work performed.
[¶ 10.] Due in large measure to Patitz's and Schjodt's urging, Russell applied for and received an order calling a grand jury to convene on July 27, 2007, primarily to investigate the golf course project. At that time, Russell was in his second term as State's Attorney and seventh year as a prosecutor.
[¶ 11.] During the course of the grand jury proceedings Schjodt testified twice. Because of Schjodt's background in dealing with federal construction projects and his knowledge of construction costs and taxes, Russell considered Schjodt to be "my expert essentially."
[¶ 12.] Throughout the grand jury proceedings Russell regularly consulted with Schjodt. Schjodt provided Russell with his personal and professional opinions regarding the scope and quality of the contractor's work on the golf course. Schjodt also provided Russell with suggestions as to witnesses, and grand jury strategy. Further, Schjodt encouraged Russell to continue the investigation as a means to enhance Russell's reputation. The Referee found that the extensive communication between Schjodt and Russell demonstrated "that Schjodt arguably influenced the direction of the grand jury proceedings." Russell admitted that he gave Schjodt information from the grand jury proceedings. Schjodt shared some of this information, by unsigned letter, with a citizen who did not agree with his viewpoint.
[¶ 13.] While the grand jury was impaneled and continuing its investigation of the golf course project, Judge Davis, the presiding judge in the Seventh Circuit, began to hear rumors "that what was taking place in the Grand Jury was known on the street." Because of his concern for the integrity of the grand jury process and the secrecy of it, Judge Davis drove to Hot Springs in April 2008 to meet with Russell. Judge Davis told Russell:
[¶ 14.] On May 20, 2008, the grand jury indicted the golf course contractor, Steven Simunek, and his wife, Carla, as co-defendants. The Simuneks were charged with seven Class 6 felonies,
[¶ 16.] After consulting Schjodt, on August 18, 2008, Russell offered to settle the charges against Steven Simunek (Simunek) on the following terms:
(Emphasis added.)
[¶ 17.] Russell also offered to settle the charges against Mayor Oberlitner on the following terms:
(Emphasis added.)
[¶ 18.] Russell had never before put a condition in a plea agreement calling for the public release of grand jury transcripts. He admits that he did not research the law concerning the restrictions on disclosure of grand jury proceedings. SDCL 23A-5-16 governs restrictions on disclosure of grand jury proceedings. Russell believed that releasing the grand jury transcripts would inform the public of the facts of the golf course project and dispel problems within the community of Hot Springs. Simuneks and Mayor Oberlitner did not testify before the grand jury.
[¶ 19.] Simunek accepted and pleaded guilty to four misdemeanors. His attorney testified he did not contest the provisions on release of the grand jury proceedings
[¶ 20.] Litigating parties cannot agree to modify state law. But presumably relying on the plea agreement, on November 18, 2008, Judge Tice signed an "order for opening grand jury proceedings" that Russell prepared. This order said:
Russell did not notify any of the defendants or their counsel that he secured this order. Russell also did not advise them when he made the transcripts available to the public and provided copies to the Rapid City Journal and Hot Springs Star newspapers. The order improperly opened grand jury proceedings beyond any legitimate needs of a prosecutor contrary to SDCL 23A-5-16 and also improperly delegated authority to the State's Attorney.
[¶ 21.] Prior to the end of Russell's term as State's Attorney, Schjodt directed Russell to get rid of Schjodt's notes and emails to Russell because Schjodt did not want Russell's successor "going through that stuff and causing me trouble." Russell did shred records of the Fall River State's Attorney's office including documents relating to the golf course project. He testified that he received guidance from the Attorney General's office.
[¶ 22.] In January 2009, Russell was no longer Fall River County's State's Attorney. He was a member of the South Dakota House of Representatives. According to Russell several newspaper articles had accused him of abusing his power as State's Attorney. He believed that people were intent on destroying him politically and personally. Russell testified:
[¶ 23.] On February 19, 2009, Judge Davis, the presiding judge who impaneled the grand jury, signed and filed an "order to seal transcript" which provided:
[¶ 24.] The Fall River State's Attorney who succeeded Russell was able to retrieve most, but not all, of the grand jury transcripts released by the State's Attorney's office. Certain media refused to return the copies. Russell removed the transcript from his website.
[¶ 25.] A high profile homicide case State v. Fast Horse had been pending since 2006. Russell was the prosecutor and Tim Rensch the defense attorney with Judge Davis presiding.
[¶ 26.] The case had been pending for some time due to: a) an intermediate appeal to the Supreme Court of an order Judge Davis entered; b) incomplete discovery; c) incomplete jury questionnaires; and, d) the need to locate a trial site outside of the small Fall River County courtroom due to the need to call a large number of prospective jurors.
[¶ 27.] Russell sought a trial date to get the Fast Horse case tried before the end of his term. However, Judge Davis and defense counsel Rensch were not prepared to try the case in December 2008 because of Russell's lag in completing required disclosures to the defense and the lack of a suitable site for the trial until the beginning of 2009.
[¶ 28.] In early December 2008, Russell issued a press release which criticized Judge Davis and, according to an article posted on the Rapid City Journal's website, "implied that [Judge Davis] dragged [his] feet in setting a trial date for accused murderer Shannon Fast Horse."
[¶ 29.] In ultimately recommending the public censure of Russell, the Referee concluded:
[¶ 30.] "Our decisions in disciplinary cases are based upon the record made at the hearing before the referee, not upon the basis of the report and recommendation of the [Disciplinary Board] or the Attorney General." In re Kunkle, 88 S.D. 269, 283, 218 N.W.2d 521, 529 (1974).
[¶ 31.] The findings of the Referee are given careful consideration by this Court because the Referee had the advantage of encountering the witnesses first hand. In re Discipline of Laprath, 2003 S.D. 114, ¶ 41, 670 N.W.2d 41, 55. This Court has said that:
Matter of Discipline of Dana, 415 N.W.2d 818, 822 (S.D.1987) (quoting In re Rensch, 333 N.W.2d 713, 714 (S.D.1983)).
Id.
[¶ 32.] "[D]isciplinary proceedings have been termed quasi-criminal in nature." Kunkle, 88 S.D. at 280, 218 N.W.2d at 527 (citing In Re Ruffalo, 390 U.S. 544, [551,] 88 S.Ct. 1222, [1226,] 20 L.Ed.2d 117 (1968)). This Court's authority to conduct the proceedings, however, stems from the constitution, S.D. Const. art. V, § 12, statute, SDCL 16-16, and the inherent power of the Court to regulate the practice of law. Id. This inherent power "must of course be exercised in a manner that comports with due process." Id.
[¶ 33.] Russell contends that he was not afforded due process before the Disciplinary Board. He contends that issues that had not been noticed were central to the case, he did not receive specification of rule subsections that he allegedly violated, and the Disciplinary Board Chair was biased.
[¶ 34.] Russell contends he had no notice of questions by the Disciplinary Board concerning Russell's alleged domestic violence and the delay in bringing the Fast Horse case to trial. It was Russell, however, who brought these issues to the Disciplinary
[¶ 35.] Russell also contends that he did not receive specific enough notice of the rules and their subsections that he allegedly violated. Regardless of whether disciplinary proceedings are considered civil or quasi-criminal in nature, the complaint must "adequately inform" the respondent of the nature of the charge against him. Kunkle, 88 S.D. at 274, 218 N.W.2d at 524.
Id., 88 S.D. at 274-75, 218 N.W.2d at 524.
[¶ 36.] Russell received fair notice of what he was facing and was not misled or prevented from preparing an adequate defense. "[I]t is incumbent on an attorney to know the disciplinary rules regulating his profession." Samuel T. Reaves, Procedural Due Process Violations in Bar Disciplinary Proceedings, 22 J. Legal Prof. 351, 354 (1998) (quoting State v. Turner, 217 Kan. 574, 538 P.2d 966, 972 (1975)).
[¶ 37.] Finally, Russell contends that he was denied due process because the Board Chair was assigned to the complaint, directed the investigation, and participated in the hearing and decision making process. See Rules of Procedure of the Disciplinary Board of the State Bar of South Dakota. SDCL app. 16-19.
[¶ 38.] Members of the Disciplinary Board "shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain." SDCL 16-19-28. There is no suggestion that the Board's Chair had prior independent knowledge of Russell's case and no suggestion that her impartiality might be questioned. Canon 3(E), Code of Judicial Conduct. SDCL app. 16-2. Russell requested that Disciplinary Board member Roger Tellinghuisen recuse himself which he did. Russell made no such request of the Board Chair.
[¶ 39.] In Kunkle, the constitutionality of SDCL ch. 16-19 (the disciplinary process) was challenged as violative of due process because the procedure placed "the court in the untenable position of being the investigator, the grand jury or indictor, the prosecutor and the final arbiter and judge in disciplinary actions." 88 S.D. at 279, 218 N.W.2d at 526. This Court noted:
Id., 88 S.D. at 280-81, 218 N.W.2d at 527-28 (internal citations omitted).
[¶ 40.] The United States Supreme Court has explained that a prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
[¶ 41.] The Minnesota Supreme Court in addressing the role of a prosecutor has stated:
State v. Penkaty, 708 N.W.2d 185, 196-197 (Minn.2006).
[¶ 42.] "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Comment, Rule 3.8, South Dakota Rules of Professional Conduct. SDCL app. 16-18. Rule 3.8 of the Rules of Professional Conduct recognizes the special responsibilities of a prosecutor:
[¶ 43.] In this case it is clear that Russell had a fundamental misunderstanding of his role as a prosecutor, who he represented as a prosecutor, and the independent judgment that a prosecutor must exercise. Russell allowed his personal and political views of the golf course project
[¶ 44.] The United States Supreme Court recently stated:
Connick v. Thompson, ___ U.S. ___, ___, 131 S.Ct. 1350, 1362-63, ___ L.Ed.2d ___ (2011). "Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain." Id. at 1363.
[¶ 45.] In making the release of the grand jury transcript a part of the plea agreements and in preparing an order for Judge Tice's signature allowing its release, Russell admits that he did not research the law. SDCL 23A-5-16 clearly prohibited its release, and Russell misled the trial court by submitting an order to an inattentive judge upon improper grounds. Russell's release of the transcript was an effort to protect his personal reputation from increasing public criticism.
[¶ 46.] Growing public criticism of Russell also spurred his decision to issue a press release critical of Judge Davis and blaming Judge Davis for the delay in the Fast Horse case. "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge[.]" South Dakota Rules of Professional Conduct, Rule 8.2.
[¶ 47.] In determining appropriate discipline this Court considers the seriousness of the misconduct by the attorney, the likelihood of repeated instances of similar misconduct, and the prior record of the attorney. Laprath, 2003 S.D. 114, ¶ 77, 670 N.W.2d at 64. In addition, "[i]n determining an appropriate discipline, this Court reviews the totality of the attorney/client relationship to determine if any mitigating factors warrant consideration." In re Discipline of Dorothy, 2000 S.D. 23, ¶ 39, 605 N.W.2d 493, 504. "We take the action necessary to protect the public from future harm at the hands of an attorney whose conduct is under question." In re Discipline of Light, 2000 S.D. 100, ¶ 12, 615 N.W.2d 164, 168.
Misconduct shall be grounds for:
(Emphasis added.)
[¶ 49.] Although this Court has not adopted the ABA Standards for Imposing Lawyer Sanctions, we do consult them for guidance. Light, 2000 S.D. 100, ¶ 13, 615 N.W.2d at 168. Rule 9.1 of these standards provides that "[a]fter misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose."
[¶ 50.] The Referee concluded that Russell violated the Rules of Professional Conduct by failing to use his independent judgment in investigating the golf course project and by using the office of State's Attorney to enhance and defend his political career and further Schjodt's political aims. The Referee concluded that Russell's misconduct in publicizing and putting the grand jury transcript on his website and issuing a press release critical of Judge Davis warranted public censure.
[¶ 51.] In recommending public censure the Referee recognized that Russell's misconduct was mitigated by his lack of a prior disciplinary record, his cooperation with the Disciplinary Board, his relative inexperience in the practice of law, and his willingness to concede that his conduct was improper and he made mistakes. The Referee (and the Disciplinary Board) recommended
[¶ 52.] This Court has considered numerous attorney discipline cases which have resulted in public censure. See Dorothy, 2000 S.D. 23, ¶ 62, 605 N.W.2d at 512 (Amundson, J., concurring) (listing and analyzing South Dakota public censure cases.) While none of the cases involved prosecutorial misconduct they are instructive because this Court balanced misconduct with factors including admission of wrong doing, cooperation with the Disciplinary Board, a lack of prior misconduct, and the unlikelihood of recurrence. Id.
[¶ 53.] The release of the grand jury transcripts and the press release critical of Judge Davis was the product of a relatively inexperienced prosecutor who was caught up in the volatile political environment in Hot Springs and who allowed himself to be seduced by it. Balanced against this, however, is that Russell immediately admitted his errors, cooperated with the Disciplinary Board, and completed an advanced legal degree. In addition, other than this proceeding, Russell has no other disciplinary record. Accordingly, public censure is appropriate.
[¶ 54.] Russell is to pay all costs of this proceeding. SDCL 16-19-70.2.
[¶ 55.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.
Mitigating factors include: a) absence of a prior disciplinary record; b) absence of dishonest or selfish motive; c) personal or emotional problems; d) timely good faith effort to make restitution or to rectify consequences of misconduct; e) full and free disclosure to the disciplinary board or cooperative attitude toward proceedings; f) inexperience in the practice of law; g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses. ABA Standards for Imposing Lawyer Sanctions, Rule 9.32 (1992).
