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In re Tennant

Supreme Court of Montana

March 21, 2017

IN THE MATTER OF DAVID G. TENNANT, An Attorney at Law, Respondent.

          Submitted: March 7, 2017

         APPEAL FROM: Commission on Practice of the Supreme Court of the State of Montana ODC File No. 15-145

          For Appellant: Jon G. Moog, Deputy Disciplinary Counsel, Helena, Montana

          For Appellee: David G. Tennant, self-represented, Kalispell, Montana

          OPINION AND ORDER

          Beth Baker Justice

         ¶1 These consolidated proceedings include two formal disciplinary complaints filed against Montana attorney David G. Tennant. The complaints, which arise from Tennant's debt collection practices against clients and former clients, will be referenced in this Opinion and Order as the Ray complaint (our Cause No. PR 16-0233) and the Harshman complaint (our Cause No. PR 16-0435). The disciplinary complaints may be reviewed by any interested persons in the office of the Clerk of this Court.

         BACKGROUND

         ¶2 Beginning in 2011, Tennant represented John Ray in Ray's dissolution of marriage. The next year, following entry of the decree of dissolution, Tennant filed an attorney's lien relative to his representation of Ray in that case. Tennant later obtained a judgment against Ray for services rendered both in the dissolution and in a related contempt matter. Tennant was granted default judgment in the amount of $34, 045.18, after which he obtained a writ of execution on two lots owned by Ray. Vintage Vines, a business of which Tennant is a fifty percent owner and the registered agent, was the successful bidder on the property at a sheriff's sale.

         ¶3 Tennant represented Richard and Debbie Harshman in an action for eviction of tenants from, and possession of, real property in Hungry Horse, Montana. The Harshmans obtained a default judgment against their tenants for damages to the property, including attorney fees of $3, 063.54. When he was unable to collect the attorney fees through execution on the tenants and the Harshmans did not pay their bill to Tennant's firm, Tennant filed an attorney's lien on the property. He later filed a complaint against the Harshmans alleging breach of contract, account stated, and foreclosure of the attorney's lien, in which action he was granted a default judgment of $8, 148.68. Tennant assigned the judgment to a collection agency, which obtained a writ of execution on the Harshmans' property. A sheriff's sale was held, at which the collection agency was the successful bidder. The Harshmans later redeemed their property.

         ¶4 Both Ray and the Harshmans filed complaints against Tennant with the Office of Disciplinary Counsel (ODC), and ODC filed formal disciplinary complaints in both matters. On August 31, 2016, Tennant filed conditional admissions and an affidavit of consent to discipline in these consolidated proceedings, pursuant to Rule 26, Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). ODC objected to Tennant's conditional admissions. On October 20, 2016, the Commission on Practice held a hearing on the complaints and to consider Tennant's conditional admissions. Tennant was present with counsel and testified on his own behalf.

         ¶5 On January 5, 2017, the Commission submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for Discipline. The Commission rejected Tennant's conditional admissions. Based on the allegations of the complaints and the evidence produced at the hearing, the Commission concluded that Tennant violated multiple provisions of the Montana Rules of Professional Conduct (MRPC) in relation to the Ray complaint. The Commission concluded that Tennant violated Rule 1.7, MRPC, by representing concurrent clients with conflicting interests. It concluded that he violated Rule 1.8(a), MRPC, by acquiring an ownership interest in a current client's property when he foreclosed on his firm's attorney's lien on Ray's property, and that he violated Rule 1.8(b) by not obtaining his client's informed consent to foreclose on the attorney's lien. The Commission concluded that ODC failed to carry its burden of proving by clear and convincing evidence any MRPC violations alleged in the Harshman complaint.

         ¶6 The Commission recommends that, as a result of his violations of the Montana Rules of Professional Conduct, Tennant be disciplined by public censure by this Court. The Commission further recommends that Tennant recoup the value of the judgment he entered against Ray from the sale of one of the lots acquired from Ray, and that the other lot be quitclaimed back to Ray, with copies of the transfer paperwork provided to ODC. The Commission recommends that, in the future, Tennant be required to provide to clients and former clients copies of any attorney's liens he or his firm files against them. In addition, the Commission recommends that, for a period of three years, Tennant be required to provide to ODC copies of any attorney's liens filed by him or his firm, copies of all complaints filed by him or his firm and served against former clients for unpaid fees, and copies of judgments or assignments of judgments obtained by him or his firm against former clients.

         ¶7 ODC has filed written objections to the Commission's findings, conclusions, and recommendation, and Tennant has filed a response.

         STANDARD ...


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