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In re Morin

Supreme Court of Montana

March 26, 2019

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

          ORDER

         On February 26, 2019, this Court issued an Order accepting and adopting the Findings of Fact, Conclusions of Law and Recommendation for Discipline of the Commission on Practice (COP), suspending Tina L. Morin from the practice of law for an indefinite period of not less than seven months, and ordering her to pay the costs of these proceedings. Morin has petitioned this Court for rehearing. The Office of Disciplinary Counsel (ODC) has responded and objects to Morin's petition.

         Under M. R. App. P. 20, this Court will consider a petition for rehearing only upon three grounds: the Court overlooked some fact material to the decision; the Court overlooked some question presented by counsel that would have proven decisive to the case; or the Court's decision conflicts with a statute or controlling decision not addressed by the Court. Morin contends this Court's Order erred in all three respects.

         First, Morin alleges this Court overlooked three facts which she believes are material to the decision. In the Order which is the subject of Morin's petition, this Court determined that the vast majority of Morin's objections to the Findings of Fact, Conclusions of Law and Recommendation for Discipline of the COP were inapposite because the issue at hand was whether Morin violated the Montana Rules of Professional Conduct and not whether the District Court erred in appointing an attorney to serve in the dual role of both attorney and guardian ad litem for an incapacitated person—J.A.L., the wife of Morin's client. We explained that it was irrelevant to the disciplinary proceeding if the District Court's appointment of counsel to represent J.A.L. was contrary to law because Morin could not choose to ignore the fact that the court had appointed counsel to represent J.A.L.

         Morin now offers: an order in which the District Court referred to the appointed attorney as a guardian ad litem; the appointed attorney's testimony regarding her role that Morin characterizes as "a perfect definition of a guardian ad litem"; and an argument that Morin was justified in approaching J.A.L. because J.A.L. was entitled to an attorney of her choice. None of these "facts" were overlooked by the Court. Even if true, they do not change the outcome here. As stated in our Order, "The record is abundantly clear that the District Court did in fact appoint [attorney Debbie] Churchill to act as both attorney and guardian ad litem for J.A.L. An experienced attorney, Morin surely understood the court's intention when she reviewed the record."

         Morin next argues this Court should grant her petition for rehearing because it overlooked the question of whether Churchill was J, A.L.'s attorney. Morin argues that the question of whether Churchill was J.A.L. 's attorney was "both a question of fact and a question of law, which should have been decided by a district court." Contrary to Morin's assertion, this Court addressed that question: "The record is abundantly clear that the District Court did in fact appoint [attorney Debbie] Churchill to act as both attorney and guardian ad litem for J.A.L." Although Morin now argues the issue of Churchill's role should have been decided by the District Court, Morin made no effort to bring that issue before the District Court in the underlying case. As we stated in the Order, had Morin considered the District Court's decision to appoint Churchill to serve as both attorney and guardian ad litem to be erroneous, she should have challenged the appointment in the courts.

         Morin next argues her petition for rehearing should be granted because this Court's Order conflicts with multiple statutes and controlling decisions not addressed. First, she argues that the United States and Montana Constitutions and § 72-5-315, MCA, all guarantee J.A.L. the right to be represented by counsel of her choice. As more fully explained in this Court's Order and the Findings of Fact, Conclusions of Law and Recommendation for Discipline of the COP, Morin's actions in this case did nothing to further J.A.L.'s right to counsel. Rather, Morin sought to circumvent M. R. Pro. Cond. 4.2(a) by suing a third party to communicate with J.A.L. without the consent of her appointed counsel.

         Second, Morin argues the underlying Order conflicts with this Court's decision in In re J.A.L., 2014 MT 196, ¶ 4, 376 Mont. 18, 329 P.3d 1273, because there, this Court referred to Churchill as J, A.L.'s guardian ad litem. There is no conflict here because, as noted repeatedly in these proceedings, the District Court appointed Churchill as both J, A.L.'s attorney and guardian ad litem.

         Third, Morin argues she cannot be disbarred or suspended because she did not violate any provision of § 37-61-301, MCA. The ODC responds that this statute does not preclude this Court from imposing attorney discipline, and Morin's misconduct falls within § 37-61-301(2)(c) and (2)(e), MCA.

         This Court has original and exclusive jurisdiction regarding the conduct and discipline of persons admitted to practice law in Montana. In re Potts, 2007 MT 81, ¶ 31, 336 Mont. 517, 158 P.3d 418 (citing Mont. Const, art. VII, § 2(3) and Title 37, chapter 61, MCA). Although Morin is incorrect that violation of § 37-61-301, MCA, is the only basis this Court may use for discipline, as the ODC points out, Morin nonetheless violated that statute. Section 37-61-301 (2)(e), MCA, provides that an attorney may be removed or suspended from practice for being guilty of deceit, malpractice, crime, or misdemeanor involving moral turpitude. In the context of § 37-61-301, MCA, this Court has defined "moral turpitude" as "[e]verything done contrary to justice, honesty, modesty or good morals." In re Peters, 73 Mont. 284, 289, 235 P. 772, 774 (1925). In our Order accepting and adopting the COP's Findings of Fact, Conclusions of Law and Recommendation for Discipline, we concluded Morin violated M. R. Pro. Cond. 8.4(d) by engaging in conduct prejudicial to the administration of justice. Thus, she also violated § 37-61-301 (2)(e), MCA.

         In addition to her arguments for rehearing under M. R. App. P. 20, Morin raises a jurisdictional argument: she alleges the ODC exceeded its jurisdiction in investigating her conduct. Morin alleges the ODC undertook its investigation after it received a written complaint accusing her only of uncivil behavior, and uncivil behavior is not grounds for discipline under the Montana Rules of Professional Conduct. Morin incorrectly interprets the ODC's limitations. Under Rule 5B(3) of the Montana rules for Lawyer Disciplinary Enforcement, the ODC is empowered to "[i]nvestigate all information coming to the attention of the [ODC] which, if true, would be grounds for discipline ...." The ODC is not limited to investigating only information it receives via a written complaint. Therefore, Morin's jurisdictional argument is without merit.

         Morin further argues this Court should grant her motion for rehearing because she alleges the discipline imposed violates her constitutional rights. Morin raises no new arguments that she could not have raised in her initial Objections to the COP's Findings of Fact, Conclusions of Law and Recommendation for Discipline. Therefore, these arguments provide no grounds for rehearing pursuant to M. R. App. P. 20.

         IT IS THEREFORE ORDERED that the petition and amended petition for rehearing are DENIED.

         The Clerk of this Court is directed to serve a copy of this Order upon Tina L. Morin ...


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