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In re Bjornson

Supreme Court of Montana

February 7, 2018

IN THE MATTER OF DAVID H. BJORNSON, An Attorney at Law, Respondent. Count Number Offense M.C.A.§ Fine & Fees Description Amount

          Michael W. Cotter Chief Disciplinary Counsel.

          COMPLAINT

         The Office of Disciplinary Counsel for the State of Montana ("ODC") hereby charges David H. Bjornson with professional misconduct as follows:

         1. David H. Bjornson, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 1993, 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 it all times mentioned in this Complaint.

          3. By Order filed February 6, 2018 (attached hereto as Exhibit A), the Montana Supreme Court, pursuant to Rule 23B, RLDE (2011), determined that the felony DUI offense of which Respondent has been convicted affects Respondent's ability to practice law. As such, the Supreme Court ordered that Respondent be suspended pending disposition of disciplinary proceedings. The Court granted Respondent a seven-day period to file a statement of pleading demonstrating good cause to set aside or modify the interim suspension pending disciplinary proceedings, to which ODC would have seven days to respond. The Court directed ODC to file a formal complaint against Respondent predicated upon his criminal conviction.

         4. Respondent was charged by Information with one count of Driving Under the Influence of Alcohol, 4th or Subsequent Offense, a felony, in violation of§ 61-9-401 (1)(a), MCA.

         5. On November 7, 2017, as part of a plea bargain agreement, Respondent pled guilty to the charge and a Pre-Sentence Investigation Report was ordered.

         6. On January 2, 2018, the Court sentenced Respondent to certain terms and conditions, including, but not limited to, the following:

a) commitment to the Department of Corrections for a period of five (5) years, all suspended;
b) continued participation in and graduation from the Fourth Judicial District Co-Occurring Treatment Court;
c) payment of fine and fees in the amount of $5, 230, as well as supervision fees for the term of supervision; and
d) participation in an aftercare treatment program for the entirety of the probationary period. See Judgment, attached hereto as Exhibit B.

         7. Pursuant to Rule 8A(3), RLDE, conduct which results in conviction of a criminal offense is a ground for discipline.

         8. Pursuant to Rule 8.4(b), MRPC, it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]"

         9. Pursuant to Rule 23C, RLDE, the sole issue to be determined in the formal disciplinary proceedings herein "shall be the extent of the final discipline to be imposed."

         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 as deemed necessary and proper.

         ORDER

         On January 2, 2018, Montana attorney David H. Bjornson was convicted, pursuant to a plea bargain agreement, of felony driving while under the influence of alcohol. Rule 23B of the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE) calls for a lawyer's "immediate suspension" from the practice of law pending formal complaint proceedings if this Court determines that the lawyer "was found guilty of a criminal offense that affects the lawyer's ability to practice law." The Office of Disciplinary Counsel (ODC) has asked this Court to determine, pursuant to Rule 23B of the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE), whether Bjornson should be immediately suspended from the practice of law pending formal disciplinary complaint proceedings.

         The Court's practice has been to invoke interim suspension under Rule 23 when, as here, a lawyer has been convicted of a felony offense. Likewise, we conclude that Bjornson's conviction of felony DUI affects his ability to practice law.

         Rule 23B also provides that the Court "may in the interest of justice set aside or modify the interim suspension." We deem it appropriate herein to grant Bjornson seven days in which to file a statement or pleading demonstrating that there is good cause, if any he has, to set aside or modify the interim suspension pending ...


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