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In re Discipline of Ortner

Supreme Court of South Dakota
699 N.W.2d 865 (S.D. 2005)


Facts

David Reaser retained family friend and attorney Michael Ortner (defendant) to file a petition for divorce from his wife, Jami Reaser, who was not represented by counsel. Ortner prepared a property-settlement and child-custody agreement, which provided that David would receive custody of the children and relieved Jamie from paying child support. Jami waived the receipt of alimony. Ortner presented the proposed agreement for review by Judge Kern, who refused to grant the divorce unless the payment of child support was addressed in the agreement. Thereafter, Ortner revised the agreement, requiring Jami to pay $250 per month in child support. David and Jami signed the revised agreement, and Ortner presented the documents for Judge Kern’s review and approval. Concurrently and unbeknownst to Judge Kern, Ortner drafted a private agreement signed by David and Jami stipulating that, regardless of the court order requiring Jami to pay child support, she was not obligated to do so and David would simply tear up any checks he received. Later that year, David filed a child-support action against Jami. At a hearing on David’s motion, a different judge learned of the private agreement, vacated the settlement agreement based on Ortner’s fraud committed upon the court, and referred Ortner’s conduct to the Disciplinary Board of the State Bar of South Dakota (the Board). The Board investigated Ortner’s actions, concluded that he had merely violated several rules of professional conduct, and recommended that he be censured for his violation. The Board’s recommendation was reviewed by the Supreme Court of South Dakota.

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Holding and Reasoning (Gilbertson, C.J.)

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