IN THE MATTER OF GENET McCANN, An Attorney at Law, -Respondent.
NUNC PRO TUNC ORDER
October 26, 2016, a formal disciplinary complaint was filed
in this matter against Montana attorney Genet McCann. The
disciplinary complaint may be reviewed by any interested
persons in the office of the Clerk of this Court.
Commission on Practice held a hearing on the complaint on
March 23, 2018. McCann received notice of the 9:00 a.m.
hearing-which had been rescheduled from a previous date-and
sent her brother as a representative. McCann's brother
informed the Commission that she had been up late the night
before working on a preliminary injunction in federal court,
was on her way, and would be there "probably . . . about
1 o'clock." The Commission began the hearing as
scheduled in McCann's absence. The Office of Disciplinary
Counsel (ODC) called and examined five witnesses. The
Commissioners also questioned several of the witnesses.
McCann did not appear before the hearing concluded.
March 29, 2018, the Commission submitted to this Court its
Findings of Fact, Conclusions of Law, and Recommendation for
discipline. McCann filed written objections, and the ODC
filed a reply.
complaint in this matter arises from Genet McCann's
involvement in guardianship and conservatorship proceedings
concerning her mother. The Commission concluded, based on the
allegations of the complaint and the evidence produced at the
hearing, that McCann's representation of her brother
Timothy in those proceedings was directly adverse to
McCann's representation of her mother in the probate of
her father's estate because there was a significant risk
that McCann's simultaneous representation of her mother
and Timothy would be materially limited by McCann's
responsibilities to each client. The Commission found that
Timothy's interests and the interests of McCann's
mother, relative to the estate of McCann's father, were
in actual or potential conflict. It concluded that McCann
thereby violated Rule 1.7 of the Montana Rules of
Professional Conduct. The Commission found that McCann had
made unrelenting attacks on the services and integrity of her
mother's court-appointed guardian and of the
court-appointed co-conservator of her father's estate
that were demeaning, baseless, and unwarranted. It found
further that McCann made insulting, scurrilous, libelous, and
outrageous accusations against the presiding judge in the
guardianship and conservatorship proceedings that had no
factual support. It concluded that representations and
statements McCann made in her filings with the court were
false, misleading, and uncivil, and constitute violations of
M. R. Pro. Cond. 3.1, 3.3, 8.2, 8.4(c) and 8.4(d).
Commission recommends that, as a result of these violations
of the Montana Rules of Professional Conduct, McCann be
disbarred from the practice of law in Montana. The Commission
provided the following rationale for its recommendation:
Genet McCann, in her conduct before the district court and
before this Commission, has consistently demonstrated that
she lacks the judgment, analytical ability, professionalism,
temperament and/or competency to practice law. A license to
practice law is a true privilege. It is an opportunity to
perform good, laudatory service. It is also in the hands of
some attorneys a means by which to torment and inflict
terrible, unnecessary emotional heartache and financial
expense on persons whose only offense is to be opposite that
attorney's position. That attorney is a scourge upon the
public and the legal profession. Such is the case with Genet
McCann. She is truly the poster child of not just a vexatious
litigant, but a vexatious lawyer, unwilling or unable to see
the outrageous nature of her conduct, both in the district
court and in these disciplinary proceedings.
Ms. McCann had numerous opportunities to correct or at least
mitigate her conduct. In each instance, she took the approach
of escalating the dispute by engaging in unprofessional
name-calling, accusatory statements of bias, and relying on a
hodgepodge of groundless claims and unsupportable theories
that failed to articulate a coherent legal position. Simply
put, in the view of the Commission, she is neither fit nor
worthy to practice law. Protection of the public, the courts
and the profession dictate that her ability to practice law
be terminated. Disbarment is an extreme disciplinary result.
McCann's conduct warrants it.
objections to the Commission's findings, conclusions, and
recommendations, McCann argues that: (1) the Commission erred
by admitting and considering in her disciplinary proceedings
underlying court orders and other documents from the
guardianship and conservatorship action; (2) the
Commission's and ODC's discovery abuses prevented her
from developing and putting on a defense; (3) the
Commission's orders excluding witnesses were improper;
(4) District Court orders entered by Judge James Manley in
the underlying case were void; and (5) Judge Manley and
attorney Doug Wold testified falsely before the Commission,
and Commission Vice Chair Tracy Axelberg concealed the truth
regarding Doug Wold. McCann argues that the Commission
proceeded unfairly against her and acted purely to protect a
district judge and "an influential bar member, "
and that its findings and recommendations should be reversed.
Court reviews de novo the Commission's findings of fact,
conclusions of law, and recommendations. In re
Neuhardt, 2014 MT 88, ¶ 16, 374 Mont. 379, 321 P.3d
833 (citing In re Potts, 2007 MT 81, ¶ 32, 336
Mont. 517, 158 P.3d 418). We review matters of trial
administration for abuse of discretion. In re
Neuhardt, ¶ 16. "Further, despite our duty to
weigh the evidence, 'we remain reluctant to reverse the
decision of the Commission when its findings rest on
testimonial evidence. We recognize that the Commission stands
in a better position to evaluate conflicting statements after
observing the character of the witnesses and their
statements.'" Neuhardt, ¶ 16 (quoting
Potts, ¶ 32).
McCann's considerable objections take issue with the
conduct of the Commission's hearing, the evidence
presented, and the credibility of the witness testimony.
McCann, however, chose not to attend the hearing because she
was-according to her brother-"up late" preparing
federal court filings, which turned out to be an attempt to
terminate the Commission proceedings. McCann complains that
hearing chairman Tracy . Axelberg "coached" ODC to
expedite the presentation of its evidence so that the
Commission could foreclose her ability to present evidence.
This claim is specious; had McCann wanted a voice in the
hearing or the opportunity to present evidence, she had an
obligation to show up on time. Chairman Axelberg indicated at
the hearing that he had issued roughly forty subpoenas at
McCann's request. She had ample opportunity to defend the
complaint against her. We conclude that, by absenting herself
from the hearing, McCann failed to preserve any objections to
the conduct of the proceedings or the testimony and evidence
presented. It is well-settled that we will not fault a
tribunal for failing to correct an error where the appealing
party made no motion or objection to bring the error to the
tribunal's attention. Horn v. Bull River Country
Store Props., 2012 MT 245, ¶ 41, 366 Mont. 491, 288
P.3d 218. "Appeals can only be taken on the record made,
not on the record which should have been made."
State v. Lewis, 2007 MT 16, ¶ 13, 335 Mont.
331, 151 P.3d 883 (quoting State v. Totterdell, 135
Mont. 56, 61, 336 P.2d 696, 699 (1959)).
also takes issue with the discovery process leading up to the
March 23 hearing. ODC responds that it provided its
investigative file to her and responded to her discovery
requests, raising objections where appropriate, and that the
Adjudicatory Panel Chair made rulings as disputes arose. ODC
points out that McCann did not seek assistance from the Chair
to resolve additional disputes or file a motion to compel.
Discovery rulings are a matter of discretion, and we are
satisfied upon review of the record that McCann was not
denied the opportunity for fair discovery, nor has she
established abuse of the Commission's discretion in
precluding late-disclosed witnesses. Having chosen not to
attend the hearing at the scheduled time, McCann did not
preserve the record with an offer of proof as to any
allegedly improperly excluded evidence. M. R. Evid.
merits, we are not persuaded by McCann's argument that
the Commission erred by admitting records from the underlying
court proceeding. McCann cites Matter of Towe, No.
PR 99-332, Or. (Mont. Apr. 25, 2000). In that matter, this
Court vacated the Commission's determination that
findings from a federal administrative proceeding are deemed
prima facie established and created a rebuttable presumption.
We held in Towe that the Commission's ruling
effectively shifted the burden of proof to the respondent
attorney, contrary to the Rules for Lawyer Disciplinary
Enforcement (MRLDE). Under those Rules, the Office of
Disciplinary Counsel must prove the facts necessary to
constitute the charge by clear and convincing evidence.
did not hold that the Commission cannot take judicial notice
of orders or other documents filed in court proceedings.
Indeed, Rule 12(D)(3), MRLDE, contemplates the application of
the Montana Rules of Evidence in the Commission's
hearings. Montana Rule of Evidence 202(d)(2) requires a court
to take judicial notice of law "when requested by a
party and supplied with the necessary information." The
rule defines "law" to include "official acts
of the . . .judicial departments of this . . . state[.]"
M. R. Evid. 202(b)(4).
the Commission admitted documents from the underlying court
action but also took testimony from participants in that
action, including the presiding judge, regarding McCann's
conduct. McCann waived her right to cross-examine those
witnesses by failing to appear for the contested hearing. In
objecting to the Commission's findings, McCann, too, has
submitted numerous documents from the guardianship and
conservatorship proceeding in support of her position before
this Court. Upon review of the record, we conclude that the
Commission did not apply an impermissible presumption when it
admitted documents from the underlying court proceeding, that
it properly held ODC ...