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In re Neuhardt

Supreme Court of Montana

October 24, 2013

IN THE MATTER OF SOLOMON S. NEUHARDT, An Attorney at Law, Respondent. ODC File No. 13-077

COMPLAINT

The Office of Disciplinary Counsel for the State of Montana ("ODC") hereby charges Solomon S. Neuhardt with professional misconduct as follows;

General Allegations

1. Solomon S. Neuhardt, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 2001, at which time he took the oath required for admission, wherein he 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.

Count One

3. ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations as if fully restated in this Count One.

4. Respondent was defense counsel of record in State of Montana v. April Trewhella, Yellowstone County District Court Cause No. DC 12-0502, Judge Gregory Todd presiding, wherein his client, hereinafter Trewhella, was charged with DUI and Criminal Endangerment for conduct committed on or about August 20, 2012.

5. The charged criminal conduct against Trewhella concerned her driving while impaired and crashing her vehicle into a house on August 20, 2012, at approximately 1:48 a.m.

6. Respondent was also counsel of record for Trewhella in a civil action seeking reinstatement of her driver's license which had been suspended for her failure to provide the requested breath or blood sample within the DUI investigation on or about August 20, 2012. Judge Ingrid Gustafson presided over this matter, which was styled April Trewhella v. State of Montana, Department of Justice Driver Improvement Bureau, Cause No. DV 12-1027.

7. In the criminal matter, DC 12-0502, Respondent lodged a motion, supporting brief, and reply brief seeking dismissal of the case for failure to state a claim, a purely civil theory of relief.

8. The grounds for the dismissal motion were based on allegations of outrageous government conduct and prosecutorial misconduct based on the alleged failure of a Billings police officer to arrest Trewhella earlier in the evening on April 19, 2012, for her disorderly conduct or potential DUI as she had been detained for drunken conduct at the Billings airport. Rather than arrest her for that conduct, the officer drove her home and instructed her to stay put.

9. While patrolling the area after midnight, the officer observed Trewhella attempting to enter her vehicle and advised her not to drive. A short time later while en route to another call, the officer heard a radio advisement of an impaired female crashing her vehicle into a house. That impaired female was Trewhella.

10. Respondent's dismissal argument was based on the premise that but for the officer's failure to arrest Trewhella earlier in the evening, her later criminal conduct would not have occurred.

11. After briefing, Judge Todd denied the dismissal motion with a vociferous challenge to the non-existent factual and legal bases for the requested relief on December 4, 2012.

12. Thereafter, Trewhella entered into a plea agreement with the prosecution and plead guilty as charged on December 18, 2012, with sentencing set for March 5, 2013.

13. Respondent's motion to dismiss and supporting briefs were without merit and frivolous as he was attempting to pursue civil remedies and assert federal civil rights violations within a criminal case.

14. In violation of Rule 1.1, MRPC, Respondent failed to act competently in representing Trewhella in the criminal matter.

15. In violation of Rule 3.1(a), MRPC, Respondent asserted an issue in the proceeding without first determining through diligent investigation that there was a bona fide basis in law and fact for the dismissal motion.

16. In violation of Rule 3.1 (a), MRPC, Respondent asserted an issue for the purpose of delay or the advancement of nonmeritorious claims.

Count Two

17. ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations and paragraphs 4 through 13 of Count One as if fully restated in this Count Two.

18. In advancing his motion to dismiss, Respondent also asserted that Criminal Endangerment was a results-orientated crime that required the defendant have specific knowledge that a risk of crashing into the house was posed by her conduct, and that her voluntary intoxication was a defense to forming that knowledge or intent.

19. However, there is ample controlling authority contrary to Respondent's assertions in these regards, which authority should have precluded the frivolous motion.

20. In violation of Rule 3.3(a), MRPC, Respondent provided a false statement of law to Judge Todd and failed to disclose the legal authority known by Respondent to be directly adverse to his position within the motion to dismiss.

Count Three

21. ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations and paragraphs 4 through 13 of Count One as if fully restated in this Count Three.

22. On January 9, 2013, Judge Gustafson held a hearing on Respondent's civil petition for the reinstatement of Trewhella's suspended driver's license.

23. Respondent appeared without his client, and Judge Gustafson dismissed the petition based on failure to present any evidence and Trewhella's guilty plea to the DUI on December 18, 2012.

24. Thereafter, Respondent attempted to negotiate the reinstatement of Trewhella's driver's license with the prosecutor without success, as the prosecutor advised the criminal court could not overrule the automatic license suspension for Trewhella's testing refusal.

25. Undeterred, Respondent appeared before Judge Todd at his law and motion docket on January 22, 2013, to verbally move for a probationary driver's license. The prosecutor objected and Judge Todd ruled that a written motion and briefing was required prior to the court's consideration.

26. Upon written motion and briefing, Judge Todd denied the request for a probationary license as frivolous, as the criminal court was powerless to grant a probationary license based on Montana law and Judge Gustafson's dismissal of the civil petition for reinstatement.

27. Upon information and belief, Trewhella's driver's license suspension had been stayed by the civil proceedings, and she faced a minimum six-month automatic suspension beginning at the dismissal of those proceedings on January 9, 2013.

28. Moreover, a criminal court can only recommend that the Driver Improvement Bureau grant a defendant a probationary license despite a DUI conviction at sentencing, which was not set to occur until March 5, 2013, in Trewhella's matter.

29. In violation of Rule 1.1, MRPC, Respondent failed to act competently in pursuing the civil reinstatement of Trewhella's suspended driver's license or the criminal court's recommendation for a probationary license.

30. In violation of Rule 3.1(a), MRPC, Respondent asserted an issue in the criminal proceeding without first determining through diligent investigation that there was a bona fide basis in law and fact for the granting of a probationary license.

31. In violation of Rule 3.1 (a), MRPC, Respondent asserted an issue for the purpose of delay or the advancement of nonmeritorious claims by pursing a probationary license for Trewhella despite procedural and legal bars.

32. In violation of Rule 3.3(a), MRPC, Respondent provided a false statement of law to Judge Todd and failed to disclose the legal authority known by Respondent to be directly adverse to his position within the motion for a probationary license before the criminal court.

Count Four

33.ODC re-alleges and incorporates paragraphs 1 through 2 of the General Allegations, paragraphs 4 through 13 of Count One, paragraphs 18 through 20 of Count Two, and paragraphs 22 through 32 as if fully restated in this Count Three.

34. Respondent's conduct in representing Trewhella in the criminal and civil matters violated Rule 8.4(d), MRPC, as it caused prejudice to the administration of justice in the form of wasted court and prosecution resources on frivolous motions that should not have been filed.

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 deemed necessary and proper.


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