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In re Johnson

Supreme Court of Montana

November 27, 2013

IN THE MATTER OF ROY W. JOHNSON, JR., An Attorney at Law, Respondent.

ODC File No. 13-224

COMPLAINT

By request of a Review Panel of the Commission on Practice, the Office of Disciplinary Counsel for the State of Montana (ODC), hereby charges Roy W. Johnson, Jr., with professional misconduct as follows:

General Allegations

1. Roy W. Johnson, Jr., hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 1979, 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.

3. This Complaint concerns two ethics grievances received by ODC and docketed as File Nos. 12-034 and 12-119, and Respondent's repeated failure to fully respond to ODC's lawful demands for information in response to those grievances or provide justification for his nonresponse.

4. Upon hearing on July 17, 2013, in response to an Order to Show Cause issued pursuant to Rule 24, Montana Rules for Lawyer Disciplinary Enforcement (MRLDE), a Review Panel of the Commission on Practice authorized the filing of a formal Complaint concerning Respondent's failure to fully respond as demanded or provide justification for his nonresponse. The Commission's Order was filed November 21, 2013.

5. To preserve the underlying allegations within the individual grievances, ODC has docketed the alleged Counts within this Complaint as ODC File No. 13-224.

COUNT ONE

6. ODC realleges and incorporates paragraphs 1 through 5 of the General Allegations as if fully restated in this Count One.

7. Raymond and Cherlyn Lafinier (the Larmiers) lodged an ethics grievance against Respondent, which ODC docketed as File No. 12-034.

8. The Lafiniers had retained Respondent to defend their foster care license from revocation and to pursue adoption of their foster children.

9. In investigating the grievance, ODC requested the Respondent provide a copy of his signed fee agreement and his complete billing records for the case by letter dated October 3, 2012. Respondent failed to respond.

10. Receiving no response to the October 3, 2012, request, ODC sent another demand for production of the documentation within seven days on October 22, 2012, by first class and certified mail. Respondent signed for receipt of this demand on October 23, 2017.

11. By fax sent October 28, 2012, Respondent requested an additional 10 days to produce the documentation.

12. Respondent failed to produce the documentation within 10 days as pledged.

13. By demand dated December 5, 2012, ODC again requested the documentation by first class and certified mail and reminded Respondent of his ethical obligation to respond. Respondent signed for receipt of this demand on December 7, 2012, but failed to respond.

14. Between December 5, 2012, and the Order to Show Cause hearing on July 17, 2013, Respondent did not contact ODC concerning the repeated demands for production of this documentation.

15. To date, Respondent has yet to comply with the repeated demands for production of the requested documentation and he has not advised ODC in written response to the demands that such documentation could not be located.

16. Rule 8.1(b), MRPC, precludes an attorney from failing to respond to a lawful demand for information from a disciplinary authority.

17. Rule 8A(6), MRLDE, provides that it is grounds for discipline for an attorney to fail to promptly and fully respond to an inquiry from ODC or fail to justify such refusal or nonresponse.

18. Respondent violated Rules 8.1(b), MRPC, by his failure to either timely produce the requested documentation or advise ODC that such documents were not recoverable or even in existence.

COUNT TWO

19. ODC re-alleges and incorporates paragraphs 1 through 5 of the General Allegations as if fully restated in this Count Two.

20. Jeff Waymire (Waymire) lodged an ethics grievance against Respondent, which ODC docketed as File No. 12-119.

21. Waymire had retained Respondent to defend a DUI charge.

22. In responding to the grievance, Respondent provided a copy of the court file by letter dated June 24, 2012.

23. In investigating the grievance further, ODC requested the Respondent provide copies of: 1) his fee agreement with Waymire; 2) his trust account ledger accounting for the retainer; 3) his trust account bank statement; and, 4) his complete client file, all by letter dated November 26, 2012. Respondent failed to respond to this demand.

24. By letter dated December 21, 2012, and sent by first class and certified mail, ODC repeated the demand for the requested documentation and reminded Respondent of his ethical obligation to respond. The certified mail was returned to ODC as unclaimed, but the first class mailing was not returned. Respondent failed to respond to this demand.

25. By letter dated February 12, 2013, and again sent by first class and certified mail, ODC repeated the demand for the requested documentation and reminded Respondent of his ethical obligation to respond. Respondent signed for receipt of this demand on February 13, 2013, but failed to respond yet again.

26. Between February 12, 2013, and the Order to Show Cause hearing on July 17, 2013, Respondent did not contact ODC concerning the repeated demands for production of the requested documentation.

27. To date, Respondent has yet to comply with the repeated demands for production of the requested documentation and he has not advised ODC in written response to the demands that such documentation could not be located.

28. Rule 8.1(b), MRPC, precludes an attorney from failing to respond to a lawful demand for information from a disciplinary authority.

29. Rule 8A(6), MRLDE, provides that it is grounds for discipline for an attorney to fail to promptly and fully respond to an inquiry from ODC or fail to justify such refusal or nonresponse.

30. Respondent violated Rules 8.1(b), MRPC, by his failure to either timely produce the requested documentation or advise ODC that such documents were not recoverable or even in existence.

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 that may be deemed necessary and proper.


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