IN RE: the DISCIPLINE OF Rose Ann WENDELL (2021)

JUDGMENT OF PUBLIC CENSURE

On July 6, 2021, the Disciplinary Board of the State Bar of South Dakota, pursuant to the provisions of SDCL 16-19-67, filed its findings of fact, conclusions of law, recommendation, and formal accusation against respondent Rose Ann Wendell. No response was served and filed thereto.

The Court having thoroughly considered the Board's findings of fact, conclusions of law and recommendation, and adopted the same into the record and having determined that public censure is an appropriate discipline to be imposed upon Respondent for violating Rules 1.7 and 3.3 of the Rules of Professional Conduct, and SDCL 26A-8A-18, now, therefore, it is

ORDERED that Rose Ann Wendell be and she is hereby publicly censured pursuant to SDCL 16-19-35(4) and the findings of fact, conclusions of law and recommendation are hereby adopted into this judgment.

IT IS FURTHER ORDERED that the Judgment of Public Censure and the attached Disciplinary Board's findings of fact, conclusions of law, recommendation, and formal accusation be published in the State Bar Newsletter and Northwest Reporter.

IT IS FURTHER ORDERED that Rose Ann Wendell shall on or before October 5, 2021, pay to the State Bar of South Dakota $2,432.06 as reimbursement of the itemized expenses allowed under SDCL 16-19-70.2, proof of said payments to be filed with the Clerk of this Court on or before November 4, 2021.

Attachment

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

In the Matter of the Discipline of ROSE ANN WENDELL As an attorney at law

FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION AND FORMAL ACCUSATION

SDCL § 16-19-67

Case No. 29695

A complaint was filed with the Disciplinary Board of the State Bar of South Dakota, hereinafter “Board”, against Rose Ann Wendell, attorney at law, hereinafter “Respondent”, by Attorney Dana Hanna and an investigation was conducted by the Board.

Pursuant to Notice of Hearing, the matter was heard by the Board on June 15, 2021, at Sioux Falls, South Dakota. The Board was represented by its counsel, Thomas H. Frieberg and Robert B. Frieberg of Frieberg, Nelson & Ask, LLP, Beresford, South Dakota. Respondent appeared without counsel.

Pursuant to SDCL § 16-19-67 the Board submits the following Findings of Fact, Conclusions and Recommendation and Formal Accusation.

FINDINGS OF FACT

1.  Respondent is a winter 1999 graduate of the University of South Dakota Knutson School of Law and was admitted to the South Dakota Bar in 2000. Respondent is married and has two adult children.

2.  Prior to attending law school, Respondent worked for 5 to 6 years as a child protection worker for the South Dakota Department of Social Services, hereinafter “DSS”.

3.  Respondent is a sole practitioner in Pierre, South Dakota.

4.  Respondent's practice is primarily focused on family law, including court appointments in Abuse and Neglect cases.

5.  In 2018, Respondent was appointed to represent CC, a minor child and the victim of abuse and neglect by his parents. The action was venued in Mellette County.

6.  CC's younger brother CC-W was also alleged to be an abused and neglected child in a separate proceeding in Hughes County.

7.  CC and CC-W were placed in foster care by DSS with JA and LA and continued in their care throughout the relevant portion of the proceedings.

8.  The mother and father's parental rights were terminated as to CC on September 7, 2018 and as to CC-W on September 11, 2019.

9.  Eventually, CC and CC-W's cases were joined and Respondent was appointed as attorney for CC-W in addition to her representation of CC.

10. CC and CC-W are both Indian children as defined in the Indian Child Welfare Act (“ICWA”) and members of the Rosebud Sioux Tribe.

11. Respondent is familiar with and often deals with abused and neglected children who are identified as Indian children which requires compliance with the provisions of ICWA.

12. During the search for permanent placement for the children, the foster parents JA and LA consistently expressed an interest in adopting the children.

13. CC and CC-W had family members who were interested in providing foster care for the children, but the family members had not been approved by DSS.

14. On February 26, 2020, the foster parents advised a DSS worker that they had hired Respondent to represent them in seeking an adoption of the minor children.

15. Respondent indicated that it is common practice for attorneys appointed to represent minor children to represent the adoptive parents in a later adoption proceeding.

16. Respondent also indicated that DSS often reimburses adoptive parents for legal fees associated with the adoptions.

17. On March 25, 2020, Respondent sent JA and LA a fee agreement for providing services to complete the adoption of CC and CC-W and requesting a $2,500.00 retainer and JA and LA executed the fee agreement.

18. On March 25, 2020, Respondent received and deposited into her client trust account a retainer from JA and LA in the amount of $2,500.00 for the adoption proceedings.

19. Respondent made file notes and began the process of getting information together to assist JA and LA in getting approved for the adoption of CC and CC-W.

20. On June 15, 2020, a hearing was held with regard to the status of the placement of CC and CC-W. At that hearing, JA and LA were represented by Attorney Stacy Hegge.

21. On June 30, 2020, Respondent refunded JA and LA $1,767.81. Respondent charged JA and LA $687.50 plus sales tax for her services.

22. At the June 15, 2020 hearing, Respondent objected to the removal of the children from JA and LA and indicated that she was in favor of a placement outside of a family placement as required, if appropriate, under ICWA.

23. At the June 15, 2020 hearing, Respondent did not disclose her representation of JA and LA.

24. On November 24, 2020, a Motions Hearing was held before Circuit Court Judge Margo Northrup.

25. Among the various motions to be heard on November 24, 2020, was a Motion to Disqualify Respondent as attorney for CC and CC-W based upon a conflict of interest. The Motion to Disqualify was filed by Attorney Dana Hanna as attorney for the Rosebud Sioux Tribe and was based upon DSS notes from February 26, 2020 wherein Respondent's representation of JA and LA was mentioned.

26. Prior to the November 24, 2020 hearing, Respondent did not review her records relating to the representation of JA and LA and the alleged conflict of interest.

27. At the November 24, 2020 hearing, Respondent indicated that she did not believe that there was a retention agreement between herself and JA and LA.

28. At the November 24, 2020 hearing, rather than require an evidentiary hearing on the Motion to Disqualify Respondent, Respondent withdrew from further representation of CC and CC-W.

29. As of the June 15, 2021 hearing before the Board, Respondent had not contacted Judge Northrup to advise her that she had been incorrect when she stated that she had not been retained by JA and LA.

30. Respondent had not refunded any further monies to JA and LA as of the date of her June 15, 2021 hearing before the Board. JA and LA were refunded the balance of their $2,500.00 retainer after the Board hearing.

31. Respondent provides a valuable service to the Court system as an attorney willing to represent minor children in difficult abuse and neglect cases.

32. Respondent has a lengthy history of complaints filed with the Board which includes seven complaints which were dismissed and expunged without a finding of a rule violation, four dismissals where the Respondent was cautioned for her conduct and three admonitions which reflected elevated concerns by the Board about Respondent's conduct.

33. At the June 15, 2021 hearing before the Board, Respondent acknowledged that she violated Rule 1.7 of the Rules of Professional Conduct in representing JA and LA while acting as counsel for CC and CC-W.

34. At the June 15, 2021 hearing before the Board, Respondent acknowledged that she violated Rule 3.3 of the Rules of Professional Conduct when she failed to correct a false statement made in a hearing before Judge Northrup.

35. At the June 15, 2021 hearing before the Board, Respondent acknowledged that she violated SDCL 26-8A-18 which prohibits an attorney for a child in an abuse and neglect case from acting as attorney for any other party involved in the judicial proceedings.

CONCLUSIONS OF LAW

1. Respondent received due and proper notice of the proceedings against her and the Board has jurisdiction to initiate formal proceedings against the Respondent.

2. Respondent, while well intentioned, violated Rule 1.7 of the Rules of Professional Conduct in that she represented JA and LA while at the same time representing the minor children CC and CC-W.

3. Respondent violated Rule 3.3 of the Rules of Professional Conduct when she made a false statement to the Court and failed to timely correct a false statement of material fact previously made to the tribunal. Specifically, Respondent represented to the Court that she had not been retained by JA and LA when in fact she had. Respondent failed to correct the misstatement to the Court.

4. Respondent violated SDCL 26-8A-18 by representing JA and LA in proceedings in which she had been appointed to and was currently representing CC and CC-W.

5. Respondent's actions reflect a lack of understanding of her obligations under the Rules of Professional Conduct.

6. Respondent's history of disciplinary complaints reflects a lack of understanding of her obligations under the Rules of Professional Conduct.

RECOMMENDATION

The Disciplinary Board recommends:

1. Respondent be publicly censured by the Supreme Court as allowed under SDCL 16-19-35(4).

2. Respondent be required to reimburse the State Bar of South Dakota for expenses incurred by the Board as allowed under SDCL 16-19-70.2.

3. Pursuant to SDCL § 16-19-67(3), Respondent has thirty days in which to admit or deny the allegations of the formal accusations set forth above. If Respondent admits the allegations or fails to answer, the Supreme Court may proceed to render judgment.

4. If Respondent denies the allegations, the matter may be referred to a Referee pursuant to SDCL § 16-19-67(4) or tried by the Supreme Court which may thereafter determine and impose such discipline as it deems appropriate.

Dated this 6th day of July, 2021.

/s/ Julie M. Dvorak

Julie M. Dvorak

Chairperson, Disciplinary Board

Steven R. Jensen, Chief Justice

PARTICIPATING: Chief Justice Steven R. Jensen and Justices Janine M. Kern, Mark E. Salter, Patricia J. DeVaney and Scott P. Myren.