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In re Miller

Supreme Court of Montana

March 12, 2018

IN THE MATTER OF BRIAN J. MILLER, An Attorney at Law, Respondent.

         COMPLAINT MRPC 2.1, 5.2, 3.1, 3.2, 3.4, 8.2(a)

          Michael W. Cotter Chief Disciplinary Counsel Office of Disciplinary Counsel.

         The Office of Disciplinary Counsel for the State of Montana ("ODC"), hereby charges Brian J. Miller with professional misconduct as follows:

         General Allegations and Background

         1. Brian J. Miller, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 2007, 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 Montana 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. At all times relevant, Respondent was a member of the Morrison, Motl and Sherwood law firm, now known as the Morrison, Sherwood, Wilson and Deola law firm (hereinafter "MSWD") located in Helena, Montana.

         4. Billie Redding ("Redding") is an elderly Montanan who sold her family ranch in 2004 and was advised by her accountants at Anderson ZurMuehlen & Co., P.C. ("AZ"), to invest the proceeds in a company that subsequently went bankrupt in 2008.

         5. Richard "Mike" Layne ("Layne") entered into a contingency fee agreement with Redding to pursue her claims against AZ and other individuals. Redding's claims arose from AZ's alleged misconduct in advising her to obtain tenancy-in-common ("TIC") shares of properties owned by DBSI, Inc. ("DBSI"). Redding incurred significant financial damages when DBSI became insolvent. AZ similarly advised at least six other clients.

          6. Layne is an Oregon attorney. Layne entered into an agreement with Linda Deola ("Deola"), a member of MS WD, to have her assist him in pursuing Redding's and others' claims in Montana and to share attorney fees.

         7. On July 27, 2009, MSWD filed a lawsuit on Redding's behalf against AZ and others in Montana First Judicial District Court, Lewis and Clark County, Cause No. ADV 09-649.

         8. After the lawsuit was filed, Deola and MSWD acquired five other clients who also had claims against AZ. Deola was the sole attorney for each of her other five clients. Since Deola and Layne agreed to share any contingent fee in Redding's case, her prospective contingent fee in her newer five clients' cases would be higher than the fee she would recover in Redding's case.

         9. Deola and MSWD filed lawsuits against AZ on behalf of her five newer clients alleging damages relating to their TIC investments.

         10. New York Marine and General Insurance Company ("NYM") is an insurance carrier that issued professional liability insurance policies to AZ. There were two applicable claims-made ...


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