## Facts

- Michael P. Ortner, a South Dakota attorney, represented a husband in an uncontested divorce; the wife was unrepresented.
- Ortner drafted and presented a divorce settlement giving the husband custody and providing no child support; the trial judge refused to approve the decree without a child-support provision.
- Ortner revised the settlement to require the wife to pay $250 per month in child support; the parties signed it, and the court approved the decree.
- At the same time, Ortner drafted a separate private “side agreement,” not disclosed to the court, stating that the wife had no real obligation to pay child support and that the husband would destroy any checks.
- The husband later sought to enforce child support; during enforcement proceedings, the side agreement surfaced, and the divorce settlement was vacated for fraud on the court.
- The matter was referred to the state disciplinary authorities; Ortner admitted the misconduct charged in a formal accusation.
- The Disciplinary Board found violations of professional duties of candor and honesty and recommended public censure.

## Issues

1. Whether an attorney violates professional conduct rules by drafting and concealing a private agreement intended to nullify a court-ordered child-support obligation.
2. What sanction is appropriate given the misconduct, the effect on the judicial process, and mitigating and aggravating factors.

## Decision

- The Supreme Court of South Dakota accepted the Disciplinary Board’s findings that Ortner’s conduct constituted fraud on the court and violated duties of candor and honesty.
- The court adopted the Board’s recommended sanction and imposed public censure.
- The court emphasized that the undisclosed side agreement made the child-support provision in the decree a sham and materially deceived the tribunal.
- The court considered mitigation, including Ortner’s admission of wrongdoing, character evidence, and limited prior discipline, and concluded censure adequately protected the public, courts, and the profession.

## Legal Principles

- Lawyers, as officers of the court, must act with candor toward tribunals and may not participate in or conceal arrangements that mislead a court.
- Assisting clients in creating undisclosed agreements that contradict a court order constitutes fraud on the court and professional misconduct.
- Attorney discipline is imposed to protect the public, the courts, and the legal profession, not primarily to punish the lawyer.
- In selecting a sanction, the court weighs the seriousness of the deception and harm to the judicial process against mitigating factors such as acceptance of responsibility and prior disciplinary history.

## Conclusion

The court publicly censured Ortner for drafting and concealing a private agreement intended to defeat a court-approved child-support order, holding that such concealment violates core duties of honesty and candor and constitutes fraud on the court, while concluding that substantial mitigation justified censure rather than suspension.


In re Discipline of Ortner, 699 N.W.2d 865 (S.D. 2005)