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In re Whalen

Supreme Court of Montana

October 15, 2013

IN THE MATTER OF TIMOTHY J. WHALEN, an Attorney at Law, Respondent

ORDER OF DISCIPLINE

On March 7, 2011, a formal disciplinary complaint was filed against Montana attorney Timothy J. Whalen. The disciplinary complaint, which is based upon Whalen's 2011 convictions of negligent vehicular assault and criminal endangerment, may be reviewed by any interested persons in the office of the Clerk of this Court. In March of 2011, this Court also entered an order indefinitely suspending Whalen from the practice of law in Montana, based upon his criminal convictions.

Whalen did not file an answer to the disciplinary complaint. At his request, the disciplinary hearing before the Commission on Practice was continued until all appeals of his criminal convictions were completed.

The Commission held a hearing on the complaint on July 13, 2013, at which hearing Whalen was present and testified on his own behalf On August 12, 2013, the Commission submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for discipline. Whalen filed objections thereto, and the Office of Disciplinary Counsel (ODC) filed a brief in response to those objections.

The Commission has concluded that Whalen's failure to file an answer to the disciplinary complaint constituted a default under the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). Further, the Commission noted that this Court has concluded the criminal offenses of which Whalen has been convicted are offenses that affect his ability to practice law. As a result, the only issue remaining for the Commission pursuant to MRLDE 23C was the extent of the final discipline to be imposed. Based on the allegations of the complaint and the evidence produced at the hearing, the Commission recommends that Whalen be disbarred from the practice of law in Montana.

In his written objections, Whalen argues that the hearing on the disciplinary complaint was premature because his appeals of his criminal convictions are not yet completed. He also argues that the punishment of disbarment is extreme under the circumstances. However, our review confirms that the Commission and ODC are correct that the direct appeal process has been completed as to Whalen's criminal convictions. In addition, we agree with the Commission that the severity of Whalen's misconduct is sufficient to warrant disbarment.

Based upon the foregoing,

IT IS HEREBY ORDERED:
1.The Commission's Findings of Fact, Conclusions of Law, and Recommendation are ACCEPTED and ADOPTED.
2. Timothy J. Whalen is hereby disbarred from the practice of law in Montana.

The Clerk of this Court is directed to serve a copy of this Order of Discipline upon Timothy J. Whalen at his last known address and to provide copies to Disciplinary Counsel; the Office Administrator for the Commission on Practice; the Clerks of all the District Courts of the state of Montana; each district court judge in the state of Montana; the Clerk of the Federal District Court for the District of Montana; the Clerk of the Circuit Court of Appeals of the Ninth Circuit; and the Executive Director of the State Bar of Montana.


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