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In re Miller

Supreme Court of Montana

November 19, 2019

IN THE MATTER OF BRIAN J. MILLER, An Attorney at Law, Respondent.

          ORDER

         On March 12, 2018, a formal disciplinary complaint was filed in this matter against Montana attorney Brian J. Miller. The disciplinary complaint may be reviewed by any interested person in the office of the Clerk of this Court.

         The Commission on Practice (Commission) held a hearing on the complaint on April 18 and 19, 2019. Both the Office of Disciplinary Counsel (ODC) and Miller, as represented by their respective counsel, presented argument and questioned witnesses.

         On July 18, 2019, the Commission submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for discipline. Miller then filed objections, and the ODC filed a reply.

         This Complaint arose from Miller's representation of Plaintiff Billie Redding in Redding v. Prosight Specialty Management Company, Inc., et al., Cause No. CV 12-98-H-CCL, before Hon. Charles C. Lovell, Senior United States District Judge for the Helena Division of the United States District Court for the District of Montana. Redding had been previously represented by Montana attorney Linda Deola, a partner in the same firm as Miller. The underlying litigation began in State court, where Deola filed an amended complaint alleging that the defendant insurers acted in bad faith by failing to make a good-faith offer to settle Redding's claims against their insured. The defendants removed the litigation to the U.S. District Court.

         On February 3, 2014, the U.S. District Court disqualified Deola from serving as trial or deposition counsel for Redding. Miller then entered the litigation, first as defense counsel for Deola at her own deposition in the matter, and then as lead counsel for the litigation.

         Both before and after Miller became involved in the case, the parties engaged in discovery disputes which required Judge Lovell's intervention. Miller also filed several unsuccessful motions, including a motion to recuse Judge Lovell. Judge Lovell ultimately granted summary judgment in the defendants' favor. Miller filed a notice of appeal and turned Redding's case over to new counsel, but no appeal was undertaken.

         The ODC then filed a Complaint against Miller, alleging four counts of misconduct: (1) Miller attempted to "disrupt the summary judgment process" by filing a motion to recuse Judge Lovell shortly before a scheduled summary judgment hearing, and Miller had no authority to support the motion; (2) Miller frustrated the discovery process by failing to produce documents Deola was ordered to disclose; (3) Miller continued to pursue the bad faith lawsuit after Judge Lovell had found it frivolous; and (4) Miller failed to exercise independent professional judgment, but instead acted under Deola's direction.

         After a two-day hearing, the Commission concluded Miller violated M. R. Pro. Cond. 3.1 (a)(1), 3.1 (a)(2), and 8.2(a) by moving to recuse Judge Lovell without a bona fide basis in law or fact, and by making arguments about Judge Lovell's qualifications and integrity with reckless disregard as to their truth or falsity. The Commission further concluded the ODC had failed to meet its burden of proof regarding the other counts of misconduct. The Commission has recommended discipline in the form of a public admonition and assessment of the costs of the proceedings.

         Miller does not challenge any of the Commission's findings of fact. In his objections, Miller argues insufficient evidence supports the Commission's conclusions that he violated Rules 3.1(a)(1), 3.1(a)(2), and 8.2(a) by filing the motion to recuse Judge Lovell. He further argues that the Commission made several erroneous evidentiary rulings during the pendency of this matter. Finally, Miller contends that if this Court concludes sufficient evidence supports the Commission's conclusions, it should reject the recommendation that he be assessed the costs of the proceedings, because he alleges the ODC pursued several nonmeritorious counts that inflated the costs of the proceedings.

         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 (citation omitted). This duty includes weighing the evidence upon which the Commission's findings rest. In re Potts, 2007 MT 81, ¶ 32, 336 Mont. 517, 158 P.3d 418. This Court reviews matters of trial administration for abuse of discretion. In re Neuhardt, ¶16.

         In a disciplinary matter, the burden of proof lies with the ODC, which must prove its allegations by clear and convincing evidence. MRLDE 22(B)-(C). We have defined clear and convincing evidence as "a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof." Harding v. Savoy, 2004 MT 280, ¶ 51, 323 Mont. 261, 100 P.3d 976 (citation omitted).

         We have thoroughly reviewed the record in this matter. We disagree with Miller's assertion that the Commission's conclusion that he failed to have a bona fide basis in fact or law for asserting the grounds he relied upon in his motion to recuse Judge Lovell is inadequately supported by the Commission's findings of fact. Among the evidence presented in this disciplinary proceeding is the motion and brief Miller filed, and these documents speak for themselves. As the Commission found, the arguments Miller advanced in support of the motion were without merit. Thus, the Commission's conclusion that Miller violated Rules 3.1(a)(1) and (2) is correct.

         As to the Commission's conclusion that Miller violated Rule 8.2(a) by asserting Judge Lovell altered testimony and created affirmative defenses for the defendants with reckless disregard as to the truth or falsity concerning the qualifications or integrity of Judge Lovell, Miller maintains that under Montana case law, the ODC would have to prove actual malice in order to sustain this charge and that it failed to do so. Miller relies on Sible v. Lee Enterprises, Inc., 224 Mont. 163, 729 P.2d 1271 (1986), in which this Court applied the "malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964) to a defamation suit, defining something "published with malice" as published "with knowledge that it was false, or with a reckless disregard of the truth." Miller further notes that § 27-1-221, MCA, pertaining to punitive damages awards, describes "actual malice" in part as "knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff."

         However, the interests protected by professional discipline are different from those protected by defamation law. As explained in United States District Court v. Sandlin,12 F.3d 861, 867 (9th Cir. 1993), the standard to be applied regarding Rule 8.2(a) is not the subjective standard of New York Times, but is rather an objective standard: what a reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances. See also In re Terry, 394 N.E.2d 94, 95 (Ind. 1979) ("Defamation is a wrong directed against an individual.... Professional misconduct.. . is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations."). The ODC thus argues Miller uses the incorrect standard and this Court should define ...


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