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In re McCann

Supreme Court of Montana

June 6, 2018

IN THE MATTER OF GENET McCANN, An Attorney at Law, -Respondent.

          NUNC PRO TUNC ORDER

         On 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.

         The 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.

         On 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.

         The 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).

         The 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.

         In her 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.

         This 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).

         Many of 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)).

         McCann 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. 103(a)(2).

         On the 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.

         Towe 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).

         Here, 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 ...


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