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In re Strong
Supreme Court of Montana
August 1, 2013
IN THE MATTER OF PENELOPE STRONG, An Attorney at Law, Respondent
ODC File No. 12-296
Jon G. Moog Deputy Disciplinary Counsel
Upon leave of the Commission on Practice, the Office of Disciplinary Counsel for the State of Montana (ODC) hereby charges Penelope Strong with professional misconduct as follows:
1. Penelope Strong, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 1994, at which time she took the oath required for admission, wherein she agreed to abide by the Rules of Professional Conduct, the Disciplinary Rules adopted by the Supreme Court, and the highest standards of honesty, justice, and morality, including, but not limited to, those outlined in parts 3 and 4 of Chapter 61, Title 37, Montana Code Annotated.
2. The Montana Supreme Court has approved and adopted the Montana Rules of Professional Conduct (MRPC), governing the ethical conduct of attorneys licensed to practice in the State of Montana, which Rules were in effect at all times mentioned in this Complaint.
3. ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations as if fully restated in this Count One.
4. On April 21, 2010, Brenda Bernard (Bernard) retained Respondent to pursue post-conviction relief for her son, Robert Caplette, Jr. (Caplette), who had been convicted of aggravated sexual abuse in federal court.
5. Bernard provided Respondent with a $ 15, 000 retainer.
6. Caplette had been found guilty by a jury in November 2008 and was sentenced by U.S. District Court Judge Sam Haddon (Judge Haddon) on February 23, 2010, to 210 months of incarceration followed by lifetime supervision. At trial, Caplette was represented by attorney Jason Holden.
7. Caplette's conviction was affirmed by the Ninth Circuit Court of Appeals, wherein he was represented by attorney Chad Wright.
8. On February 15, 2011, Respondent filed a pleading entitled "Petition for Writ of Habeas Corpus" (Petition) alleging that attorneys Holden and Wright had provided Caplette with ineffective assistance of counsel as grounds for relief from his conviction.
9. By Order dated June 21, 2011, Judge Haddon dismissed a number of Respondent's claims but required the government to file a response to six remaining claims.
10.By Order dated April 2, 2012, Judge Haddon struck from the record three unsigned expert and factual declarations that Respondent had mistakenly lodged in lieu of signed declaration in support of the Petition. Judge Haddon also dismissed four of the six remaining claims.
11.The two remaining claims involved an allegedly undisclosed statement made by the victim to the Army's Criminal Investigation Division. By Order filed April 2, 2012, Judge Haddon ordered Respondent to either subpoena this statement or advise the court if no statement was obtained, with a deadline of May 29, 2012. Respondent failed to respond to either of Judge Haddon's alternative directives.
12.Based on Respondent's failure to carry the case forward, Judge Haddon dismissed the remaining post-conviction claims by Order dated July 24, 2012. He also denied a certificate of appealability. This Order was affirmed on appeal by the Ninth Circuit Court of Appeals on November 8, 2012.
13.On September 17, 2012, Respondent sent Caplette a letter advising him that she was withdrawing from his post-conviction matter and would request substitute counsel be appointed for him.
14.In November 2012, Respondent sent Bernard a letter advising that she had failed to take certain actions to protect Caplette's post-conviction proceeding and was referring the matter to her malpractice insurer.
15.Respondent has partially refunded the fee and intends to refund the remainder despite her substantial amount of work on the case.
16.By filing the unsigned declarations that were stricken from the record and failing to either subpoena the victim's statement or properly advise Judge Haddon as directed, the Respondent provided incompetent representation to Caplette in violation of Rule 1.1, MRPC.
17.By filing the unsigned declarations that were stricken from the record and failing to either subpoena the victim's statement or properly advise Judge Haddon as directed, the Respondent failed to diligently represent Caplette in violation of Rule 1.3, MRPC.
18.ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations and paragraphs 3 through 15 of Count One as if fully restated in this Count Two.
19.Respondent's failure to respond to Judge Haddon's directive filed April 2, 2012, to either subpoena the victim's statement or notify the court that the statement had not been obtained by May 29, 2012, violated Rule 3.4(c), MRPC, as she knowingly disobeyed an obligation owed to a tribunal.
WHEREFORE, the Office of Disciplinary Counsel prays:
1. That a Citation be issued to the Respondent, to which shall be attached a copy of the complaint, requiring Respondent, within twenty (20) days after service thereof, to file a written answer to the complaint;
2. That a formal hearing be had on the allegations of this complaint before an Adjudicatory Panel of the Commission;
3. That the Adjudicatory Panel of the Commission make a report of its findings and recommendations after a formal hearing to the Montana Supreme Court, and, in the event the Adjudicatory Panel finds the facts warrant disciplinary action and recommends discipline, that the Commission also recommend the nature and extent of appropriate disciplinary action; and,
4. For such other and further relief as deemed necessary and proper.
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