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In re Wallace

Supreme Court of Montana

October 30, 2018

IN THE MATTER OF TERRY A. WALLACE, An Attorney at Law, Respondent.

          ORDER OF DISCIPLINE

         In April 2017, the Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint against Montana attorney Terry A. Wallace relating to his conduct in a lawsuit he filed in 2012 on behalf of Karrie Lynn Serrania. The case originated in Missoula County Justice Court until it was eventually dismissed when Serrania filed counterclaims beyond the jurisdictional limit of Justice Court. In 2012, Wallace commenced litigation on behalf of Serrania before the Hon. Ed McLean of the Fourth Judicial District Court, Missoula County.

         The records related to this proceeding are replete with incidents of professional misconduct against Wallace. Following months of litigation, the District Court entered judgment and sanctions against Wallace for failure to attend a May 2013 pretrial conference and his "blatant lack of candor and... disrespectful conduct toward the Court[, ] ... the legal process[, ] and ... egregious abuses of the legal rights" of his adversaries. On appeal, we affirmed the court's decision except for one portion of the sanctions in our April 28, 2015 and January 2, 2018 Opinions. Serrania v. LPH, Inc., 2018 MT 3N, ¶ 6, 391 Mont. 536, 410 P.3d 953; Serrania v. LPH, Inc., 2015 MT 113, ¶ 38, 397 Mont. 17, 347 P.3d 1237.

         On July 25, 2017, Wallace filed a motion for M. R. Civ. P. 11 sanctions against Deputy Disciplinary Counsel Jon G. Moog, alleging that the ODC's complaint was principally filed to interfere with, conflict with, and harass him in the appeal. We denied the motion for sanctions on August 8, 2017, for Wallace's failure to establish sufficient grounds for sanctions pursuant to M. R. Civ. P. 11(c)(2).

         The Commission on Practice (Commission) held a hearing on the ODC's complaint on August 27, 2018, and subsequently submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for the discipline of Wallace on September 18, 2018. The Commission concluded that Wallace violated the Montana Rules of Professional Conduct on multiple occasions: (1) failing to attend the May 2013 pretrial conference and submit a stipulated scheduling order as required by the District Court, thus disobeying an obligation under the rules of a tribunal pursuant to M. R. Pro. Cond. 3.4(c); (2) advancing nonmeritorious claims and making damages claims in discovery lacking a bona fide basis in law and fact in violation of M. R. Pro. Cond. 3.1; and (3) engaging in evasive discovery responses in violation of M. R. Pro. Cond. 3.4(d). The Commission recommends that Wallace be suspended from the practice of law for seven months, after which his readmittance will be subject to reapplication, and bear the reasonable costs of the Commission proceedings.

         Wallace objected to the Commission's submission on October 17, 2017. In his objections Wallace asserts, inter alia, the defenses of res judicata and estoppel, and claims that the ODC did not rely on sufficient authority or record evidence to contradict or rebut his assertions, or in denying his previous M. R. Civ. P. 12(b)(6) motion to dismiss the charges against him. Wallace further asserts that the Commission ruled on the ODC's complaint without allowing Wallace time to file a reply, and that the ODC and the Commission interfered with his discovery by refusing to compel "verified answers" to Wallace's interrogatories and blocking Wallace's attempt to subpoena ODC witness Paul Heihn. Regarding his absence from the May pretrial conference, Wallace characterizes the conference as merely a scheduling conference, and contends that the resulting sanctions were imposed for his lack of communication with other counsel about his absence, rather than for missing the conference. He discounts the District Court's order condemning his litigation misconduct as prejudiced against him.

         In its response to Wallace's objection, the ODC sets forth clear and convincing evidence that Wallace violated the Rules as charged. As the ODC points out, the District Court previously sanctioned Wallace for misconduct in violation of M. R. Civ. P. 16(f) and M. R. Civ. P. 11 which we thereby affirmed in our April 28, 2015 and January 2, 2018 Opinions. The ODC asserts and the record reflects that Wallace had ample opportunity- nearly a full year-to engage in discovery. Wallace sought to subpoena ODC witness Heihn approximately one month before the scheduled hearing, without following the procedural requirement that a Commission member must sign the subpoena. The ODC further asserts that Wallace's motion to dismiss was meritless because it falsely claimed ODC was in privity with the defendants in the underlying matter, and thus the ruling on the motion was made on procedural grounds. Additionally, the ODC asserts that Wallace failed to attend, or to notify adverse counsel that he would not attend, a pretrial conference and submit a stipulated scheduling order in direct defiance of the District Court's order requiring his attendance.

         Upon review of the record and finding sufficient supporting evidence therein, we accept the Commission's Findings of Fact, Conclusions of Law, and agree with its Recommendation.

         Therefore, pursuant to Rule 9 of the Rules for Lawyer Disciplinary Enforcement, we ACCEPT AND ADOPT the Commission's Findings of Fact, Conclusions of Law, and Recommendation for discipline. Wallace is hereby suspended from the practice of law for seven months, subject to reapplication, and is further hereby assessed the reasonable costs of these proceedings.

         The Clerk is directed to serve a copy of this Order of Discipline upon Terry A. Wallace at his last known address and to provide copies to Disciplinary Counsel; the Office Administrator for the Commission on Practice; the Clerks of all the District Courts of the state of Montana; each District Court Judge in the state of Montana; the Clerk of the Federal District Court for the District of Montana; the ...


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