February 2009

Topic:
The goal of the lawyer disciplinary process is to protect the public and it is not the duty of a licensing Court to engage in psychological analysis as to why a lawyer has engaged in acts of neglect, but rather to remove that lawyer from practice where warranted.

This is the story of a stressed out over-achiever named Michael P. Reynolds. Reynolds grew up in Sioux Falls, South Dakota, and left home to fly high in the big time, only to return and crash into the prairie. Reynolds graduated from Northwestern University in 1984 with degrees in Communications and Political Science. He later attended UCLA Law School. While there, he gained a prestigious internship with the Chairman of the FCC. In 1987, he was licensed in Illinois and began his legal career with the powerful Chicago firm of Winston & Strawn and later worked for another Chicago giant, Skadden Arps.

He missed The Mount Rushmore State, however, and returned home in the 1990’s. In 1994, he was admitted to practice law in South Dakota and began working for the Rapid City firm of Quinn, Eisland, Day & Barker. While there, he concentrated his practice in commercial litigation and maintained between 65 and 80 active files. He worked from 7 am to 7 pm, tucked in the kids each evening, and returned to the office until 2 am.

In 2006, Reynolds became President and CEO of Dunbar Enterprises, LLC, a non-profit organized by the actor, Kevin Costner. By 2007, his practice was limited to Dunbar Enterprises exclusively. Reynolds was also a community leader. He sat on the boards of the United Way, the Black Hills Symphony and several other civic organizations. He was also a member of his church council. He took pride in never missing his children’s activities.

Reynolds’ pursuit of perfection hit its first speed bump in 2001 when the city of Rapid City fired a client of Reynolds’ from a management position he held there. Reynolds’ neglected the client’s grievance procedure with the city. Reynolds’ did not respond to the client’s inquiries regarding the status of a complaint that needed to be filed. The complaint was never filed and the statute of limitations expired. The client filed a grievance with the Disciplinary Board in 2005. At the hearing, Reynolds acknowledged that he was over-extended and felt “the pressures to produce.” Reynolds said his life had no balance. He was overwhelmed by his demanding caseload, his family commitments and his outside activities. The Disciplinary Board, Reynolds, and one of his law partners, negotiated a “Private 60 Agreement” pursuant to SDLC 16-19-60, wherein he acknowledged his misconduct agreed to conditions that he would have to meet to have the disciplinary proceedings dismissed. In the agreement, he admitted that he failed to respond to a client’s numerous requests for information on the status of a case, neglected a client’s file, and allowed a statute of limitations to toll. He also admitted that he failed to seek permission from clients whose interests were potentially adverse, since he had represented the city of Rapid City on two matters. The conditions of the agreement included a mental health evaluation, and periodic reviews of all of Reynolds’ files by Reynolds and his law partner. Disciplinary proceedings would resume if other complaints were filed against Reynolds or if he violated the terms of the agreement.

In April, 2006, Reynolds law firm dissolved. Reynolds informed the Board. Also in April, 2006, Reynolds signed a contract to become President and CEO of Dunbar Enterprises, LLC. In June 2006, the Disciplinary Board met to amend the Private 60 Agreement. Reynolds asked the Board to allow him to maintain an “Of Counsel” position with the newly formed Barker Reynolds Law Firm in order to periodically assist the firm and so that he could use the firm’s letterhead on pleadings for Dunbar Enterprises. Reynolds also asked if he could continue to represent the Sturgis Area Chamber of Commerce and a commercial client. His employer, Kevin Costner, had already agreed that Reynolds could do so. The Board allowed it.  Reynolds told the Board that he had decreased his caseload from 80 complex cases to a maximum of six litigation matters. He said he was now only working from 9 am to 5 pm. Further, he had lost 40 pounds and had taken up acting in order to relax. He was even starring in a community theater production of “Oklahoma.” (He apparently was cast as Will Parker, the long-suffering fiancé of Ado Annie). Reynolds asserted that he was a new man and represented that his stress level was “down 300%.” In July, 2006, Reynolds signed the amended agreement.

In October, 2006 another client of Reynolds’ filed a complaint against him concerning issues of neglect and poor communication. In January, 2007 the Board held a hearing to determine if Reynolds had kept to the conditions of the Private 60 Agreement. Reynolds denied any psychological problems. When asked by a Board member how he could salvage the situation, Reynolds said, “The only thing I can suggest is give me another chance.” He referred to himself as an “army of one” with no support staff. The Board relented. In March, 2007, the Private 60 Agreement was amended for a second time. It limited Reynolds’ practice to one client, Dunbar Enterprises. He was ordered to withdraw as counsel for all other clients and cease his “Of Counsel” association with his firm.

He was good for about a year. In April 2008, he violated the amended agreement by representing the Sturgis Area Chamber of Commerce. Learning of the situation, the Disciplinary Board sought to have him disbarred. His agonies were not yet at an end. In May 2008, he lost his job. Kevin Costner fired him as President, CEO, and also legal counsel for Dunbar Enterprises after it was revealed that Reynolds had neglected the non-profit in a lawsuit filed by a former employee who Reynolds had fired for allegedly misappropriating funds. Reynolds also failed to make court appearances in representing the organization in a partnership dissolution proceeding and apparently failed to notify Costner of that lawsuit’s existence. This latter neglect led to a default judgment for the opposing party in the litigation. Fortunately, Costner succeeded in later having the default judgment vacated.

After reviewing all of these facts, the South Dakota Supreme Court held that Reynolds failed to meet professional standards and was not diligent, failed to communicate with clients, and engaged in a conflict of interest. Further, the Court believed that he had engaged in misconduct involving fraud, deceit, dishonesty or misrepresentation. The Court opined that the goal of the Private 60 Agreement was to allow him to practice law while ensuring that the conduct that brought him before the Board would not be repeated. The Court found it unfortunate that reformation and rehabilitation of Reynolds’ behavior did not occur. Despite the limitation of Reynolds’ workload, and his participation in a mentoring program, the misconduct continued. The Court ran out of patience.

It saw a pattern in the nature of Reynolds’ misconduct including repeated failures to comply with instructions of the Disciplinary Board. “He acts with peril who treats a communication from the Disciplinary Board with the indifference accorded an unsolicited invitation to join a book club.” The Court found Reynolds’ excuses for failing to respond to Board phone calls, letters, emails and notices “disingenuous, at best.” Notably, the Court held:

The Disciplinary Board is not conducting a baby-sitting service for wayward attorneys who have lost their way. It is charged with the protection of the public.

The Court said that Reynolds liked to blame others instead of taking responsibility for his actions. It took into consideration that, at one time, he was a highly respected lawyer and member of his community and church. Such factors, however hardly rose to the level of exoneration. The Court was mystified that, at some point in time, Reynolds became unable to, or simply refused to, perform his professional duties. It opined that the reason for Reynolds’ behavior was hidden in his psyche, and that the Court’s first obligation was to protect the public and not to engage in psychological analysis. The Court suspended him for three years with conditions including that he must take and pass the MPRE, take a law office management course, and complete a psychological examination before any possibility of reinstatement.

The case is Discipline of Michael P. Reynolds , 2009 SD 9, 2009 WL. 33648 (South Dakota, February 11, 2009).

- RICHARD S. THOMAS, COUNSEL, ILLINOIS ARDC -