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In re Mown

Supreme Court of Montana

February 26, 2019

IN THE MATTER OF TINA L. MOWN An Attorney at Law, Respondent.

          ORDER

         On July 28, 2017, a formal disciplinary complaint was filed in this matter against Montana attorney Tina L. Morin. The disciplinary complaint may be reviewed by any interested person in the office of the Clerk of this Court.

         The Commission on Practice (COP) held a hearing on the complaint on December 3 and 4, 2018. Both the Office of Disciplinary Counsel (ODC) and Morin, as represented by their respective counsel, presented argument and questioned witnesses.

         On January 2, 2019, the COP submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for discipline. Morin then filed objections, and the ODC filed a reply.

         This Complaint arose from Morin's involvement with the guardianship of J.A.L., an incapacitated person. After the Second Judicial District Court, Silver Bow County, affirmed the appointment of J.A.L.'s brother and sister-in-law as her guardians and conservators, authorized them to restrict J.A.L.'s husband's access to her, and awarded them attorney fees, Morin represented J.A.L.'s husband in appealing those orders to this Court.[1] Morin also represented him in his efforts to expand his right of access to J.A.L., both before and after this Court affirmed the appealed orders.

         After Morin undertook representation of J.A.L.'s husband, she learned the District Court had appointed attorney Debbie Churchill to represent J.A.L. in some capacity. The District Court's order of appointment was captioned "Order Appointing Attorney to Represent an Alleged Incapacitated Person" and it states in relevant part that Churchill was appointed to represent J.A.L. "and shall have the powers and duties of a guardian ad litem." Morin examined Churchill's actions in the case and determined she had consistently advocated for what Churchill determined was J.A.L.'s best interest and did not advocate for J.A.L.'s stated interests. Morin further believed Montana law no longer allowed for a single person to act as both attorney and guardian ad litem for an individual. She concluded Churchill was only a guardian ad litem and that J.A.L. was unrepresented. She further concluded Churchill's appointment as guardian ad litem would have ended when the District Court confirmed J.A.L.'s brother and sister-in-law as permanent guardians.

         Morin then proceeded to exclude Churchill from service in her filings. Morin was unsuccessful in obtaining any relief for her client, either via appeal to this Court, via requests to attorney Stephen Shapiro, who represented J, A.L.'s guardians, via the numerous motions she filed in the District Court, or via a Petition for Writ of Mandate she filed in this Court. J.A.L.'s guardians strictly controlled access to J.A.L. and Morin became convinced that J.A.L.'s civil rights were being violated.

         Morin sought the assistance of Disability Rights Montana (DRM), which has a federal right to access disabled individuals. DRM visited J.A.L. and determined she was not abused or neglected. Morin was insistent that DRM take further action, alleging that J.A.L. was being denied legal representation. Morin did not inform DRM that Churchill had represented J.A.L. in any capacity.

         Although Morin urged DRM to challenge the guardianship, DRM did not have the resources to do so. Morin asked DRM to use its right of access to have an attorney visit J.A.L. to determine if she desired legal representation. DRM agreed. Morin then contacted attorney Genet McCann, who agreed to visit J.A.L. under DRM's right of access.[2] McCann, accompanied by a DRM representative, then visited J.A.L. J.A.L. signed a representation agreement with McCann. McCann and DRM entered into an association agreement for McCann's representation of J.A.L., which DRM understood would be pro bono. However, DRM was unaware that McCann, with Morin's knowledge and approval, had also entered into a representation agreement with J.A.L.'s husband in which she agreed to pursue his interests in removing J.A.L.'s guardians. Morin knew McCann had entered into both representation agreements. However, she maintained there was no conflict of interest because J.A.L. and her husband had common goals.

         McCann then took actions in her representation of J.A.L. which exceeded the scope of her agreement with DRM. DRM disassociated from the matter.

         J.A.L.'s guardians filed a complaint with the ODC concerning Morin's actions. The ODC charged Morin with professional misconduct. In its Complaint, the ODC contended Morin knew or should have known that the District Court appointed Churchill as both attorney and guardian ad litem for J.A.L. The ODC alleged Morin violated Montana Rules of Professional Conduct 4.2(a) and 8.4(a) by inducing McCann to have unauthorized contact with J.A.L. while Churchill represented J.A.L. The ODC further alleged Morin violated M. R. Pro. Cond. 8.4(d) because she attempted to induce McCann to file a Petition for Writ of Mandate on J.A.L.'s behalf to serve Morin's client's interests.

         After hearing, the COP found Morin knew Churchill was acting as J.A.L.'s attorney and that her claimed belief that Churchill was only guardian ad litem was not credible. It found she failed to advise DRM of Churchill's role, and neither she nor McCann disclosed to DRM that Morin had already orchestrated and approved an attorney-client contract between McCann and J.A.L. 's husband. The COP found neither McCann nor Morin sought informed consent from J.A.L., her husband, or her guardians to waive the conflict of interest, assuming it was a waivable conflict. The COP found Morin used, directed, and controlled McCann to ostensibly represent J.A.L. while simultaneously representing a person with adverse interests, J.A.L.'s husband, to pursue his and Morin's agenda. It found Morin used McCann's ostensible representation of J.A.L. as a subterfuge to pursue expanded visitation for JA.L.'s husband and Morin knowingly assisted and/or inducted McCann into violating the Montana Rules of Professional Conduct. It pointed to an e-mail Morin sent to McCann in 2017, in which she directed McCann to tell Shapiro that McCann did not represent J.A.L.'s husband-a statement Morin knew to be untrue as she had signed McCann's attorney-client agreement with J.A.L's husband several months earlier.

         Based on these and other findings, the COP concluded McCann acted as Morin's agent and surrogate in this matter, and Morin violated M. R. Pro. Cond. 4.2(a), 4.2(d), and 8.4(a) due to her and McCann's actions.

         The COP recommended Morin be suspended from the practice of law for a period of not less than seven months, and assessed the cost of these proceedings. The COP noted this was Morin's second disciplinary proceeding within a year and both instances, in the COP's opinion, reflected "an unreasonable method of practicing law that employs intimidation, accusation and artifice to accomplish her goals" and, "Morin's conduct displays a determination to accomplish her goals by any means, including unethical ones." The COP found it significant that Morin created after-the-fact justifications for her behavior and failed to show remorse, accept responsibility, or express contrition for her conduct.

         In her objections, Morin argues: the COP erred in finding Churchill acted both as attorney and guardian ad litem for J. A.L. because such dual representation is contrary to law; the COP erred in finding Morin knew or should have known Churchill was J.A.L.'s attorney because Morin could not "know" a "fact" that is contrary to law; the Chairman of the COP erred when he precluded Morin from calling an expert witness to testify about whether a district court can appoint a private fee-charging attorney to represent an incapacitated person; the Chairman of the COP erred when he precluded Morin from calling J. A.L. as a witness; the Chairman of the COP erred when he limited Morin's ability to question witnesses about Churchill's actions in the case; the COP erred in concluding McCann acted as Morin's agent and surrogate; the COP erred in concluding the District Court appointed Churchill as JA.L.'s attorney and that her role as guardian ad litem ...


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