Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rules for Lawyer Disciplinary Enforcement

Supreme Court of Montana

March 20, 2018

RULES FOR LAWYER DISCIPLINARY ENFORCEMENT

         I. STRUCTURE AND SCOPE

         RULE 1. COMPREHENSIVE LAWYER REGULATION SYSTEM

         The Court hereby establishes a comprehensive lawyer discipline and disability system, consisting of an Office of Disciplinary Counsel and a Commission on Practice. The Office of Disciplinary Counsel shall perform central intake functions and shall process, investigate, and prosecute those complaints against lawyers which are within the disciplinary jurisdiction of the Court. The Commission on Practice, which shall be divided into Review and Adjudicatory Panels, shall hear and decide complaints and in appropriate cases, shall make recommendations to the Court for discipline. Prosecutorial and adjudicatory functions shall be separated and managed to secure responsiveness, efficiency, and fairness.

         RULE 2. THE COMMISSION ON PRACTICE OF THE SUPREME COURT OF THE STATE OF MONTANA

         A Appointment.

         The Court shall appoint a fourteen-member commission to be known as "The Commission on Practice of the Supreme Court of the State of Montana, " hereinafter referred to as the "Commission, " which shall consist of nine practicing lawyers, who shall be residents of the State of Montana and licensed and admitted to practice in the state of Montana, and five nonlawyers. One of said lawyers shall be appointed from each of the areas hereinafter defined. One lawyer member shall be at large and may be appointed from any area set forth below. The nonlawyer members of the Commission shall be appointed at large, but they shall be residents of the state of Montana. The term of office of all members of the Commission shall be four years. The persons serving on the Commission on the effective date of these Rules shall continue to serve on the Commission for the remainder of the terms for which they were appointed, unless their membership on the Commission is terminated as hereinafter provided

         The areas from which the lawyer members of the Commission shall be appointed shall be comprised of the various judicial districts of the state of Montana, and are to be designated as follows:

Area A, comprising the Eleventh and Nineteenth Judicial Districts;
Area B, comprising the Fourth, Twentieth, and Twenty-first Judicial Districts;
Area C, comprising the Second, Third, and Fifth Judicial Districts;
Area D, comprising the Eighth and Ninth Judicial Districts;
Area E, comprising the Seventh, Tenth, Twelfth, Fourteenth, Fifteenth, Sixteenth, and Seventeenth Judicial Districts;
Area F, comprising the First Judicial District;
Area G, comprising the Sixth and Eighteenth Judicial Districts; and Area H, comprising the Thirteenth and Twenty-second Judicial Districts.

         Except for the at-large lawyer member, appointments to the Commission of the lawyer members shall be made by the Supreme Court from a list of three practicing lawyers in each Area having the three highest number of votes in an election by the Area members of the State Bar of Montana. The time, place, and method of such election shall be in accordance with the orders of this Court. In the event that said election is not held in any Area as ordered, the Supreme Court shall appoint a member from that Area to serve on the Commission.

         The nonlawyer members and the at-large lawyer member of the Commission shall not be subject to the election procedure, but shall be appointed by the Court.

         In the event of a vacancy in the Commission, a successor shall be appointed by the Supreme Court for the unexpired term of the member whose office is vacated. Members of the Commission may terminate their membership at their pleasure, and their membership may be terminated by the Court at its pleasure.

         B. Election of Officers.

         The members of the Commission shall annually elect lawyer members as chairperson, vice chairperson, and executive secretary. T he chairperson, and in the absence of the chairperson, the vice chairperson, shall preside at meetings of the Commission except that in the conduct of disciplinary hearings the chairperson may appoint another lawyer member of the Commission to act as presiding officer.

         A presiding officer shall have all of the powers of the chairperson in any case in which he or she has been appointed.

         C. Quorum.

         Eight members of the Commission shall constitute a quorum when the Commission is acting as a whole. T he act of a majority of the members present at a meeting at which a quorum is present shall be the act of the Commission.

         D. Meetings.

         Members of the Commission shall meet at times and places designated by the chairperson or, in the absence of the chairperson, by the vice chairperson, who shall determine the agenda for the meetings. N otice of any such meeting shall be given by mail or by telephone not less than seven calendar days in advance of the time for such meeting, except in cases of emergency or urgency requiring, in the judgment of the person calling the meeting, a shorter time of notice. Also, the Supreme Court may call a meeting of the members to be held at a time and place ordered by the Court. Notice of such meeting shall be given as above provided. The minutes of any meeting of the Commission shall state the form and time of notice of meeting given to the members.

         E. Executive Committee.

         The chairperson, vice chairperson, and executive secretary of the Commission shall constitute the executive committee. The principal function of the executive committee shall be to attend to administrative matters during the interval between meetings of the Commission. The executive committee shall have such other duties and authority as the Commission shall determine from time to time.

         F. Compensation and Expenses.

         Members of the Commission shall receive no compensation for their services, but may be reimbursed for travel and other expenses incidental to the performance of their duties.

         G. Powers and Duties of the Commission.

         The Commission shall exercise the following powers and duties:

(1) Adopt rules or policies providing for the time and place of meetings, and such other procedural rules not in conflict with these rules, as may be necessary to expedite the conduct of its business;
(2) Periodically review the operation of the lawyer disciplinary system with the Supreme Court;
(3) Establish Review Panels pursuant to Rule 3;
(4) Establish Adjudicatory Panels pursuant to Rule 4; (5)Appoint and supervise any Commission staff;
(6) Assure that a Review Panel member who sits on a particular case does not also sit on an Adjudicatory Panel for that case;
(7) Maintain all permanent records of disciplinary matters and proceedings;
(8) Exercise such other authority and perform such other duties as are provided in these Rules, or that may be required in order to carry out the provisions of these Rules; and
(9) Operate subject to budgetary limitations imposed by the Court.

         RULE 3. REVIEW PANELS: COMPOSITION; POWERS & DUTIES; QUORUM

         A. Composition.

         The Chairperson of the Commission shall appoint one or more Review Panels of five members each, at least two of whom shall be nonlawyers; shall designate a Chairperson for each Review Panel; and shall realign the membership of Review Panels from time to time.

         B. Powers and Duties.

         A Review Panel shall:

         (1) Review Disciplinary Counsel's request to file a formal complaint, together with the complaint, the response from the lawyer against whom the complaint was made and any reply from the complainant together with other relevant documents and Disciplinary Counsel's intake summary, investigative report, and recommendations;

         (2) Refer complaint to Disciplinary Counsel for any further investigation, if needed to determine whether a formal complaint is appropriate;

         (3) Approve Disciplinary Counsel's request to file a formal complaint when the facts appear to warrant disciplinary action or transfer to disability/inactive status or reject the request to file a formal complaint if discipline does not appear to be warranted;

         (4) Hear and determine requests for review pursuant to Rule 10C(3) and for reconsideration pursuant to Rule 14;

         (5) Authorize the stay of disciplinary proceedings for good cause shown pursuant to Rule 28;

         (6) Conduct show cause hearings when a lawyer has refused to respond to inquiries from the Office of Disciplinary Counsel or the Commission; and

         (7) Notify parties of action by a Review Panel.

         C. Quorum.

         Three members of a Review Panel, at least two of whom are lawyers, shall constitute a quorum; however, any act of the Review Panel shall require the vote of three members.

         RULE 4. ADJUDICATORY PANELS: COMPOSITION; POWERS & DUTIES; QUORUM

         A. Composition.

         The Chairperson of the Commission shall appoint one or more Adjudicatory Panels of nine members each, at least three of whom shall be nonlawyers; shall designate a Chairperson for each Adjudicatory Panel; and shall realign the membership of Adjudicatory Panels from time to time.

         B. Powers and Duties.

         Adjudicatory Panels shall, in accordance with the specific procedures and provisions of these Rules:

(1) Hold hearings on formal complaints and complaints for interim suspension filed by Disciplinary Counsel;
(2) After hearing, make findings of fact, conclusions of law, and recommendations to the Court for discipline or other disposition of formal complaints;
(3) Hear and determine preliminary and procedural matters incidental to the exercise of its powers and duties;
(4) Administer admonitions; (5)Hear and determine requests for reconsideration pursuant to Rule 14; (6)Administer oaths, provide for discovery, and exercise its subpoena power pursuant to Rule 19; (7)Authorize the stay of a disciplinary proceeding for good cause shown pursuant to Rule 28;
(8) Hold show cause hearings when a lawyer has refused to respond or cooperate with the Office of Disciplinary Counsel, a Review Panel, or an Adjudicatory Panel pursuant to Rule 24;
(9) Conduct proceedings relative to disability and transfer to inactive status pursuant to Rule 28;
(10) Hold hearings on petitions for reinstatement and make recommendations for their disposition to the Supreme Court pursuant to Rule 29;
(11) Hold hearings and make recommendations to the Court concerning assessment of the costs of proceedings, investigations, and audits pursuant to Rule 9; and
(12) Approve Disciplinary Counsel's request to file a formal complaint when the facts appear to warrant disciplinary action or transfer to disability/inactive status.

         C. Quorum.

         Five members of an Adjudicatory Panel, at least three of whom are lawyers, shall constitute a quorum; however, any act of the Adjudicatory Panel shall require the vote of three members.

         RULE 5. OFFICE OF DISCIPLINARY COUNSEL

         A. Appointment.

         The Court shall appoint a lawyer to serve as Chief Disciplinary Counsel and may appoint such Deputy Disciplinary Counsels as they deem necessary. Disciplinary Counsel shall not engage in private practice; shall be admitted to practice in Montana at the time of appointment or within a reasonable time thereafter as determined by the Court; and shall maintain offices in Helena, Montana, in facilities designated by the Court.

         B. Powers and Duties.

         Disciplinary Counsel shall perform all prosecutorial functions and shall have the following powers and duties:

         (1) Supervise Office of Disciplinary Counsel (Office) staff in performing central intake functions;

         (2) Evaluate all information coming to the attention of the Office to determine whether it is within the disciplinary jurisdiction of the Court;

         (3) Investigate all information coming to the attention of the Office which, if true, would be grounds for discipline or transfer to disability/inactive status;

         (4) Investigate all facts pertaining to petitions for reinstatement or readmission; (5) Dismiss a complaint that Disciplinary Counsel determines does not warrant disciplinary action;

         (6) In addition to dismissing the complaint, Disciplinary Counsel may issue a letter of caution or take other corrective action when Disciplinary Counsel deems it appropriate;

         (7) Request leave to file a formal complaint when Disciplinary Counsel determines that disciplinary action is warranted;

         (8) Prosecute before Review Panels, Adjudicatory Panels, and the Court, discipline, interim suspension, reinstatement, and readmission proceedings, and proceedings for transfer to or from disability/inactive status;

         (9) Employ and supervise Office staff needed for the performance of prosecutorial functions and, when circumstances necessitate their use, appoint and supervise special investigators and volunteer special counsel;

         (10) Notify promptly the complainant and the lawyer that an investigation is to be initiated by Disciplinary Counsel or, where Disciplinary Counsel dismisses, provide a concise written statement of the facts and reasons a matter has been dismissed;

         (11) Develop written guidelines for determining which matters fail to allege facts that would constitute grounds for disciplinary action;

         (12) Request the Clerk of the Supreme Court to notify each jurisdiction in which a lawyer is admitted of a transfer to or from disability/inactive status, reinstatement, readmission, or any public discipline imposed in this state;

         (13) Whenever costs have been assessed against a lawyer by the Supreme Court, assemble and serve on the lawyer an itemized list of the costs of proceedings, investigations, and audits;

         (14) Seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction;

         (15) Forward a certified copy of the judgment of conviction to the disciplinary office in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of a serious crime (as hereinafter defined) in this state;

         (16) Maintain permanent records of discipline and disability matters and compile statistics to aid in the administration of the system;

         (17) Prepare an annual budget for the Office and submit it to the Board of Trustees of the State Bar of Montana for review;

         (18) Make reasonable and necessary expenditures pursuant to the reviewed budget to perform the duties of the Office;

         (19) Supervise and direct Office staff and operations;

         (20) Prepare and submit to the Court recommendations concerning the annual assessment of Bar members; and

         (21) Make recommendations to the Court about the lawyer regulation system.

         C. Prohibited Activities.

         Disciplinary Counsel shall not have authority to render advisory ethics opinions, either orally or in writing, or to impose any form of discipline on a lawyer.

         RULE 6. COSTS AND EXPENSES; FISCAL REVIEWS AND AUDITS

         A. Office of Disciplinary Counsel.

         The costs and expenses of the Office of Disciplinary Counsel shall be paid from an annual assessment of active members of the State Bar of Montana and of nonmembers admitted to practice under the Montana State Bar pro hac vice rules. The Supreme Court shall determine the amount of the annual member assessment.

         B. Commission on Practice.

         The costs and expenses of the Commission shall be paid from legislatively-appropriated public funds.

         C. Fiscal Reviews and Audits.

         The Court may direct fiscal reviews and audits of the components of the lawyer regulation system.

         RULE 7. JURISDICTION

         A. Any lawyer who is a member of the State Bar of Montana is subject to the disciplinary jurisdiction of the Supreme Court of Montana, regardless of where the lawyer's conduct occurs.

         B. Any lawyer specially admitted by a Montana court for a particular proceeding, appearing by pleading or otherwise in any judicial or administrative proceeding in Montana, or otherwise engaging in the practice of law in Montana, is subject to the disciplinary jurisdiction of the Supreme Court of Montana, for conduct pertaining to his or her practice of law in Montana.

         C. If a lawyer resigns as a member of the State Bar of Montana, or the lawyer's special admission or appearance in any judicial proceeding in Montana has terminated, the lawyer remains subject to disciplinary proceedings for conduct occurring prior to the effective date of the resignation or termination.

         D. The grounds for disciplinary jurisdiction enumerated herein are in addition to those set forth in Rule 8.5, Montana Rules of Professional Conduct.

         RULE 8. GROUNDS FOR DISCIPLINE

         A. Reasons for Discipline.

         Discipline may be imposed for any of the following reasons:

         (1) Acts or omissions by a lawyer, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct or the disciplinary rules adopted from time to time by the Supreme Court.

         (2) Any act committed by an attorney contrary to the highest standards of honesty, justice, or morality, including but not limited to those outlined in Title 37, chapter 61, parts 3 and 4, MCA, whether committed in such attorney's capacity as an attorney or otherwise.

         (3) Conduct which results in conviction of a criminal offense.

         (4) Conduct which results in lawyer discipline in another jurisdiction. (5)Violation of the terms of any discipline or disciplinary order.

         (6) Failure to promptly and fully respond to an inquiry from Disciplinary Counsel, an investigator, or the Commission, or failure to justify such refusal or nonresponse.

         (7) Willful contempt of court and failure to purge the contempt.

         B. Relationship to C riminal Proceedings.

         Acquittal of a charge of crime, plea bargain, conviction of a lesser crime, or dismissal of a charge of crime after deferred imposition of sentence shall not constitute a bar to lawyer discipline for that act, nor shall conviction in a criminal proceeding be a condition precedent to the institution of disciplinary proceedings for that act.

         RULE 9. DISCIPLINE AND SANCTIONS

         A. Forms of Discipline.

         Discipline may take one or more of the following forms:

         (1) Disbarment. "Disbarment" means the unconditional termination of any privilege to practice law in this State and, when applied to any attorney not admitted to practice law in this State, means the unconditional exclusion from the admission to or the exercise of any privilege to practice law in this State.

         (2) Suspension from the practice of law for a definite period of time or for an indefinite period of time with a fixed minimum term. "Suspension" means the temporary or indefinite termination of the privilege to practice law in this State and, when applied to any attorney not admitted to practice law in this State, means the temporary or indefinite exclusion from the admission to or the exercise of any privilege to practice law in this State.

         (3) Public censure.

         (4) Admonition administered by an Adjudicatory Panel of the Commission.

         (5) Probation.

         (6) Requirement of restitution to persons financially injured. (7)Reimbursement to the Lawyers' Fund for Client Protection.

         (8) Assessment of the cost of proceedings, investigations, and audits. Whenever costs of proceedings are assessed by the Supreme Court as part of the discipline imposed upon a lawyer, the Disciplinary Counsel shall assemble and serve upon the lawyer an itemized list of those costs. The lawyer shall then have ten days thereafter in which to file written objections with the Commission on Practice and, if so desired, request a hearing before an Adjudicatory Panel on whether the amount of such costs is reasonable and necessary. An Adjudicatory Panel shall thereafter recommend ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.