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In re Freedman

Supreme Court of Montana

January 17, 2018

IN THE MATTER OF DAVE S. FREEDMAN, An Attorney at Law, Respondent.

          Michael W. Cotter Chief Disciplinary Counsel.

          COMPLAINT

         Upon 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:

         General Allegations

         1. 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.

         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. 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.

         4. On 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).

         5. In 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).

         6. 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).

         7. On 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. 111).

         8. On 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 representation."

          9. 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.

         10. The 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 so.

         11. The 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 ...


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