IN THE MATTER OF DAVE S. FREEDMAN, An Attorney at Law, Respondent.
Michael W. Cotter Chief Disciplinary Counsel.
leave of the Commission on Practice granted on January 11,
2018, the Office of Disciplinary Counsel for the State of
Montana ("ODC") hereby charges David S. Freedman
with professional misconduct as follows:
David S. Freedman, hereinafter referred to as
"Respondent, " was admitted to the practice of law
in the State of Montana in 2009, at which time he took the
oath required for admission agreeing 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 those outlined in parts 3 and 4 of
Chapter 61, Title 37, Montana Code Annotated.
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.
Respondent, on behalf of Brian John Temple
("Temple"), filed a 42 USC §1983 lawsuit
against Helena police officer Peter Joseph Callahan, the City
of Helena and St. Peter's Hospital in the Lewis and Clark
County District Court in May 2013. The case was removed to
the United States District Court for the District of Montana,
and captioned Temple v. Callahan, City of Helena and St.
Peter's Hospital, Case No. 15-CV-46-SEH. The case
was assigned to the Honorable Sam E. Haddon, U.S. District
Court Judge. At all times pertinent hereto, Respondent was
counsel of record for Temple in this case.
February 11, 2016, Respondent filed a Motion to Withdraw as
Temple's attorney. (Doc. 33). By Order, on February 17,
2016, that motion was denied for failure to comply with Rules
7.1 and 83.3(a) and (b) of the Local Rules of U.S. District
Court. Specifically, Respondent failed to state whether
Temple objected to the Motion to Withdraw (Rule 7.1) and/or
notice of substitution must be signed by both the outgoing
and incoming attorney (Rule 83.3) and/or if leaving a party
without an attorney for any period of time the lawyer can
withdraw only by leave of court (Rule 83.4). (Doc. 7).
February and March of 2016, Temple wrote two letters to the
Honorable Sam E. Haddon claiming that his lawyer, the
Respondent, was not communicating with him, and would not
take his calls. (Doc. 8 and 9).
Respondent continued to represent Temple. Respondent attended
Temple's deposition taken by the defendants on May 25,
2016, and Respondent also filed pleadings in opposition to
the Defendants' motions for summary judgment (Doc. 18,
20, 21, 23, 24, 26 and 27).
October 20, 2016, a hearing on the Defendants' motions
for summary judgment was convened. Respondent appeared at the
hearing. The Court entered an order granting the
defendants' motions. Judgment was entered in favor of the
defendants and against Temple on October 20, 2016. (Doc.
November 17, 2016, Temple told the Respondent that he wanted
to appeal the order granting summary judgment to the Ninth
Circuit Court of Appeals. This conversation was memorialized
in a letter. The Notice of Appeal was due on or before
November 21, 2016. The Respondent failed to file the Notice
of Appeal on behalf of Temple. He incorrectly argued that he
was prohibited from engaging in a "limited scope
Temple filed a pro se Notice of Appeal on November
28, 2016, and he filed a Motion for Extension of Time to File
a Notice of Appeal on December 12, 2016. On March 1, 2017,
the Ninth Circuit remanded the matter to the District Court
for the limited purpose of allowing Judge Haddon to rule on
Temple's December 12, 2016 Motion for Extension of Time
to File a Notice of Appeal.
Court set a hearing for April 5, 2017 on the Ninth
Circuit's remand order. Respondent and the other
attorneys received notice of this hearing. Respondent failed
to appear, and the Court issued an Order to Show Cause,
directing Respondent to personally appear to show cause why
he should not be held in contempt, sanctioned or otherwise
respond for his failure to appear at the April 5 hearing.
(Doc. 130). The Show Cause hearing and the hearing on
Temple's Motion for Extension of Time to File a Notice of
Appeal were simultaneously scheduled for April 10, 2017.
Respondent appeared at the Show Cause hearing. Judge Haddon
pointed out to Respondent that he was before the Court
because he: 1) violated an order to appear before the Court
(on April 5); 2) failed to follow established procedures in
order to withdraw from a case (pursuant to L.R. 7.1 and
83.3); and 3) knew of the appeal deadline and his
client's wish to file an appeal, yet failed to timely do
Respondent knew about the Court's ruling of and judgment
of October 20, 2016. He knew that as an attorney, it was his
responsibility to protect his client's interest.
Respondent knew that his client, Temple, wanted to appeal the
Court's adverse ruling, because he talked with Temple on
the phone on November 17, 2016 and confirmed the November 21
filing deadline by letter ...