Linda Deola petitioned this Court pursuant to M. R. App. P.
14 to assume original jurisdiction of this matter and stay
further proceedings with the Commission on Practice (COP)
pending the disposition of her Petition. We ordered the COP
to respond and stayed further proceedings with the COP.
has responded and agrees this Court should assume
jurisdiction and consider Deola's Petition. We thus
consider the merits of Deola's Petition.
November 2016, the Office of Disciplinary Counsel (ODC) filed
a formal complaint against Deola. In July 2018, Deola
submitted a conditional admission under Rule 26 of the
Montana Rules for Lawyer Disciplinary Enforcement (MRLDE).
The COP set the matter for a private Rule 26 hearing and
assigned it to the "Cheyenne" Adjudicatory Panel.
Each panel member received copies of the pleadings,
Deola's conditional admission, and the ODC's
recommendations. The COP acknowledges that the panel members
reviewed the submissions prior to the hearing. After a
procedural issue was raised at the hearing, the COP continued
the matter without hearing argument.
September 4, 2018, Deola withdrew her conditional admission.
Thereafter, the COP set the matter for a formal hearing and
appointed the Cheyenne Adjudicatory Panel to hear the
disciplinary matter. Deola objected and moved for a new
panel. The ODC opposed Deola's motion and the COP denied
then petitioned this Court, arguing the Cheyenne Adjudicatory
Panel gained improper knowledge of this matter via her
conditional admission and the materials submitted for the
Rule 26 hearing. Deola asks this Court to order the COP to
assign a different adjudicatory panel for her disciplinary
acknowledges the MRLDE do not address this specific
circumstance, but argues that her case should be nonetheless
assigned to a different adjudicatory panel to avoid the
appearance of impropriety. The COP responds that it violated
no rules by assigning the disciplinary matter to the same
panel that was assigned to the Rule 26 hearing.
the MRLDE do not address this situation, Deola relies on the
Rules of the Code of Judicial Conduct. Deola argues these
principles should apply in matters regarding the ODC's
adjudicatory panels and, as such, an adjudicatory panel other
than the Cheyenne Adjudicatory Panel should be assigned to
hear her case. "A judge shall . . . avoid impropriety
and the appearance of impropriety." M. C. Jud. Cond.,
Rule 1.2. "A judge shall disqualify himself or herself
in any proceeding in which the judge's impartiality might
reasonably be questioned . . . ." M. C. Jud. Cond., Rule
2.12(A). Under Rule 2.12, "a judge is disqualified
whenever the judge's impartiality might reasonably be
questioned, regardless of whether any of the specific
provisions of paragraphs (A)(1) through (5) [enumerating
specific instances of circumstances in which a judge's
impartiality might be questioned] apply." M. C. Jud.
Cond. Rule 2.12, cmt. ; Draggin' Y Cattle Co. v.
Junkermier, 2017 MT 125, ¶ 16, 387 Mont. 430, 395
P.3d 497'("Draggin' YIIF) (citing
Reichertv. State, 2012 MT 111, ¶ 50, 365 Mont.
92, 278 P.3d455). Rule 2.12(A) "requires no separate
showing of actual bias or prejudice. Reasonable questions
regarding a judge's ability to remain impartial
inherently raise questions about the party's right to a
fair tribunal." Draggin' YIII, ¶ 35.
agrees that "appropriate objective review for the Legal
Issue presented should be made under the Montana Code of
Judicial Conduct." See State v. Dunsmore, 2015
MT 108, ¶ 12, 378 Mont. 514, 347 P.3d 1220. However, the
COP argues the impartiality of the Cheyenne Adjudicatory
Panel cannot reasonably be questioned here because the panel
members obtained their knowledge through their official
capacity and not through extrajudicial means. The COP points
to State v. Strang, 2017 MT 217, ¶ 26, 388
Mont. 428, 401 P.3d 690, in which we stated that personal
knowledge gained by a judge who presided over a guardianship
and conservatorship matter was insufficient to disqualify
that judge from hearing a criminal case involving abuse or
exploitation of the subject of the earlier proceeding. The
COP argues that under Strang, the Cheyenne
Adjudicatory Panel need not disqualify itself because the
knowledge it obtained about Deola's tendered admission
was obtained as part of the disciplinary proceeding.
also distinguishes Draggin' Y III, noting that
it implicated M. C. Jud. Cond., Rule 2.12(A)(2)(c) because
the District Court Judge who presided over that matter had
more than a de minimis interest that could be substantially
affected by the proceeding. Draggin' Y III,
¶ 25. Here, the COP asserts the members of the
Cheyenne Adjudicatory Panel do not.
further asserts it has adequately addressed any issue of
partiality by admonishing the Cheyenne Adjudicatory Panel
that, pursuant to MRLDE 26, it cannot hold the conditional
admission against Deola, nor may any evidence or argument
regarding the conditional admission be admitted during the
hearing. The COP contends that each member of the Cheyenne
Adjudicatory Panel believes he or she can remain objective in
hearing Deola's case. Finally, the COP alleges that
allowing a respondent to withdraw a conditional admission
with the knowledge that any subsequent disciplinary hearing
will be assigned to a different panel would create a loophole
which would allow respondents to repeatedly tender and
withdraw conditional admissions to delay disciplinary
further argues that M. R. Evid. 408 bars the disclosure of
any details of settlement negotiations to the fact-finder,
and thus requires the appointment of a new panel. The COP
counters that M. R. Evid. 408 merely prohibits the panel from
considering evidence relating to Deola's conditional
admission, which MRLDE 26 prohibits.
has not convinced this Court that the Cheyenne Adjudicatory
Panel is unable to act impartially in this matter. Under
Strang, it need not disqualify itself from hearing
this disciplinary matter.
IT IS HEREBY ORDERED that this Court HAS ORIGINAL
JURISDICTION in this matter.
to that jurisdiction, IT IS FURTHER ORDERED that Deola's
Application for ...