Matter of Rules for Lawyer Discipli
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Opinion
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE: REVISING THE RULES FOR 1 ORDER LAWYER DISCIPLINARY ENFORCEMENT 1
For purposes of implementing this Court’s December 11, 2001 Order, In ye the
Creation of the Office of Discipline Counsel; the Adoption of Structural Changes to the
Commissionon Practice; and the Adoption of Changesto Montana‘s SystemofDisciplining
Lawyers, 2001 MT 257, 307 Mont. 210, _ P.3d _, it is necessary that the Rules for
Lawyer Disciplinary Enforcement (RLDE) be revised.
To that end, committees of the StateBar of Montana and the Commission on Practice
submitted to this Court suggestedrevisions to the RLDE. This Court has considered and
deliberated those suggested revisions. We have agreed, with some exceptions, that the
revisions suggestedare appropriate and should be adopted. The members of this Court wish
to gratefully acknowledge the input and the professional, hard work that the Bar and the
Commission on Practice committeesprovided in this matter. We note, in particular, that this
work was accomplished within a relatively tight time schedule.
Accordingly, pursuant to the authority granted this Court by Article VII, Section2(3)
of the Montana Constitution,
IT IS ORDERED that the Rules for Lawyer Disciplinary Enforcement (2002) (RLDE
(2002)) which are attached to this order are ADOPTED, effective July I,2002
IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail
copies of this Order with attached RLDE (2002) to: The Code Commissioner and Director for tbc Montana Legal Services Division;
The Chairman of the Commission on Practice,with the request that he distribute this Order and the attached RLDE (2002) to the members of the Commission;
The President and Executive Director of the State Bar of Montana with the request that this Order and attached RLDE (2002) be published in the next available issue of The Montana Lawyer and posted to the Bar’s webpage;
The State Law Librarian with a requestthat this Order and attachedRLDE (2002) be posted to the State Law Library webpage;
The State Reporter Publishing Company with the request that this Order and the attached RLDE (2002) be published in the State Reporter; and
West Group with the request that this Order and the attached RLDE (2002) be published in the annual update of Montana Rules of Court.
DATED this &ky RULES FOR LAWYER DISCIPLINARY ENFORCEMENT (2002)
The Supreme Court of the State of Montana (hereinafter referred to as “Supreme Court” or “Court”) declares that it possessesoriginal and exclusive jurisdiction and responsibility under Article VII, Section 2(3), of the 1972 Montana Constitution and the provisions of Chapter 61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all matters involving admission of persons to practice law in the State of Montana, and the conduct and disciplining of such persons. In the exercise of that jurisdiction, the Court hereby adopts and promulgates the following Rules for Lawyer Disciplinary Enforcement. These rules shall be referred to as the Rules For Lawyer Disciplinary Enforcement (2002) or RLDE (2002).
I STRUCTURE AND SCOPE
RULE l--COMPREHENSIVE LAWYER REGULATION SYSTEM
The Court herebyestablishes comprehensive a lawyer discipline and disability system, consisting of an Office of Disciplinary Counsel and a Commission on Practice. The Office of Disciplinary Counsel shall perform central intake functions and shall process,investigate and prosecutethose complaints againstlawyers which are within the disciplinary jurisdiction of the Court. The Commission on Practice, which shall be divided into Review and Adjudicatory Panels,shall hear and decidecomplaints and in appropriate cases,shall make recommendationsto the Court for discipline. Prosecutorial and adjudicatory functions shall be separatedand managedto secure responsiveness, efficiency and fairness.
RULE 2--THE COMMISSION ON PRACTICE OF THE SUPREME COURT OF THE STATE OF MONTANA
A. Appointment. The Court shall appoint a fourteen-member commission to be known as “The Commission on Practice of the Supreme Court of the State of Montana” hereinafter referred to as the “Commission,” which shall consist of nine practicing lawyers> who shall be residents of the State of Montana and licensed and admitted to practice in the State of Montana, and five non-lawyers. One of said lawyers shall be appointed from each of the areashereinafter defined. One lawyer member shall be at large and may be appointed from any area set forth below. The nonlawyer members of the Commission shall be appointed at large, but they shall be residentsof the State of Montana. The term of office of all membersof the Commission shall be four years. The personsserving on the Commission on the effective date of these Rules shall continue to serve on the Commission for the remainder of the terms for which they were appointed, unless their membership on the Commission is terminated as hereinafter provided. The areasfrom which the lawyer membersof the Commission shall be appointedshall be comprised of the various judicial districts of the State of Montana, and are to be designatedas follows: Area A shall comprise the Fourth, Eleventh, Nineteenth, Twentieth and Twenty-first Judicial Districts. Area B shall comprise the Second,Third and Fifth Judicial Districts. Area C shall comprise the Eighth and Ninth Judicial Districts. Area D shall comprise the Twelfth, Fifteenth and SeventeenthJudicial Districts. Area E shall comprise the First, Sixth and Eighteenth Judicial Districts. Area F shall comprise the Tenth and Fourteenth Judicial Districts. Area G shall comprise the Thirteenth and Twenty-second Judicial Districts. Area H shall comprise the Seventh and Sixteenth Judicial Districts. Except for the at large lawyer member, appointmentsto the Commission of the lawyer members shall be made by the SupremeCourt from a list of three practicing lawyers in each Area having the three highest number of votes in an election by the Area members of the StateBar of Montana. The time, place and method of such election shall be in accordance with the orders of this Court. In the event that said election is not held in any Area as ordered, the Supreme Court shall appoint a member from that Area to serve on the Commission. The nonlawyer membersand the at large lawyer member of the Commission shall not be subject to the election procedure, but shall be appointed by the Court. In the event of a vacancy in the Commission, a successorshall be appointed by the SupremeCourt for the unexpired term of the member whose office is vacated. Members of the Commissionmay terminate their membershipat their pleasure,and their membershipmay be terminated by the Court at its pleasure.
B. Election of Officers. The membersof the Commission shall annually elect lawyer members as chairperson, vice chairpersonand executive secretary. The chairperson, and in the absence of the chairperson, the vice chairperson, shall preside at meetings of the Commission except that in the conduct of disciplinary hearingsthe chairpersonmay appoint another lawyer member of the Commission to act as presiding officer. A presidingofficer shall have all of the powers of the chairpersonin any casein which he or she has been appointed.
C. Quorum. Eight membersof the Commission shall constitute a quorum when the Commission is acting as a whole. The act of a majority of the memberspresentat a meeting at which a quorum is present shall be the act of the Commission. D. Meetings. Members ofthe Commissionshall meet at times and placesdesignated by the chairperson or, in the absenceof the chairperson by the vice chairperson, who shall detemrine the agendafor meetings.
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IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE: REVISING THE RULES FOR 1 ORDER LAWYER DISCIPLINARY ENFORCEMENT 1
For purposes of implementing this Court’s December 11, 2001 Order, In ye the
Creation of the Office of Discipline Counsel; the Adoption of Structural Changes to the
Commissionon Practice; and the Adoption of Changesto Montana‘s SystemofDisciplining
Lawyers, 2001 MT 257, 307 Mont. 210, _ P.3d _, it is necessary that the Rules for
Lawyer Disciplinary Enforcement (RLDE) be revised.
To that end, committees of the StateBar of Montana and the Commission on Practice
submitted to this Court suggestedrevisions to the RLDE. This Court has considered and
deliberated those suggested revisions. We have agreed, with some exceptions, that the
revisions suggestedare appropriate and should be adopted. The members of this Court wish
to gratefully acknowledge the input and the professional, hard work that the Bar and the
Commission on Practice committeesprovided in this matter. We note, in particular, that this
work was accomplished within a relatively tight time schedule.
Accordingly, pursuant to the authority granted this Court by Article VII, Section2(3)
of the Montana Constitution,
IT IS ORDERED that the Rules for Lawyer Disciplinary Enforcement (2002) (RLDE
(2002)) which are attached to this order are ADOPTED, effective July I,2002
IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail
copies of this Order with attached RLDE (2002) to: The Code Commissioner and Director for tbc Montana Legal Services Division;
The Chairman of the Commission on Practice,with the request that he distribute this Order and the attached RLDE (2002) to the members of the Commission;
The President and Executive Director of the State Bar of Montana with the request that this Order and attached RLDE (2002) be published in the next available issue of The Montana Lawyer and posted to the Bar’s webpage;
The State Law Librarian with a requestthat this Order and attachedRLDE (2002) be posted to the State Law Library webpage;
The State Reporter Publishing Company with the request that this Order and the attached RLDE (2002) be published in the State Reporter; and
West Group with the request that this Order and the attached RLDE (2002) be published in the annual update of Montana Rules of Court.
DATED this &ky RULES FOR LAWYER DISCIPLINARY ENFORCEMENT (2002)
The Supreme Court of the State of Montana (hereinafter referred to as “Supreme Court” or “Court”) declares that it possessesoriginal and exclusive jurisdiction and responsibility under Article VII, Section 2(3), of the 1972 Montana Constitution and the provisions of Chapter 61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all matters involving admission of persons to practice law in the State of Montana, and the conduct and disciplining of such persons. In the exercise of that jurisdiction, the Court hereby adopts and promulgates the following Rules for Lawyer Disciplinary Enforcement. These rules shall be referred to as the Rules For Lawyer Disciplinary Enforcement (2002) or RLDE (2002).
I STRUCTURE AND SCOPE
RULE l--COMPREHENSIVE LAWYER REGULATION SYSTEM
The Court herebyestablishes comprehensive a lawyer discipline and disability system, consisting of an Office of Disciplinary Counsel and a Commission on Practice. The Office of Disciplinary Counsel shall perform central intake functions and shall process,investigate and prosecutethose complaints againstlawyers which are within the disciplinary jurisdiction of the Court. The Commission on Practice, which shall be divided into Review and Adjudicatory Panels,shall hear and decidecomplaints and in appropriate cases,shall make recommendationsto the Court for discipline. Prosecutorial and adjudicatory functions shall be separatedand managedto secure responsiveness, efficiency and fairness.
RULE 2--THE COMMISSION ON PRACTICE OF THE SUPREME COURT OF THE STATE OF MONTANA
A. Appointment. The Court shall appoint a fourteen-member commission to be known as “The Commission on Practice of the Supreme Court of the State of Montana” hereinafter referred to as the “Commission,” which shall consist of nine practicing lawyers> who shall be residents of the State of Montana and licensed and admitted to practice in the State of Montana, and five non-lawyers. One of said lawyers shall be appointed from each of the areashereinafter defined. One lawyer member shall be at large and may be appointed from any area set forth below. The nonlawyer members of the Commission shall be appointed at large, but they shall be residentsof the State of Montana. The term of office of all membersof the Commission shall be four years. The personsserving on the Commission on the effective date of these Rules shall continue to serve on the Commission for the remainder of the terms for which they were appointed, unless their membership on the Commission is terminated as hereinafter provided. The areasfrom which the lawyer membersof the Commission shall be appointedshall be comprised of the various judicial districts of the State of Montana, and are to be designatedas follows: Area A shall comprise the Fourth, Eleventh, Nineteenth, Twentieth and Twenty-first Judicial Districts. Area B shall comprise the Second,Third and Fifth Judicial Districts. Area C shall comprise the Eighth and Ninth Judicial Districts. Area D shall comprise the Twelfth, Fifteenth and SeventeenthJudicial Districts. Area E shall comprise the First, Sixth and Eighteenth Judicial Districts. Area F shall comprise the Tenth and Fourteenth Judicial Districts. Area G shall comprise the Thirteenth and Twenty-second Judicial Districts. Area H shall comprise the Seventh and Sixteenth Judicial Districts. Except for the at large lawyer member, appointmentsto the Commission of the lawyer members shall be made by the SupremeCourt from a list of three practicing lawyers in each Area having the three highest number of votes in an election by the Area members of the StateBar of Montana. The time, place and method of such election shall be in accordance with the orders of this Court. In the event that said election is not held in any Area as ordered, the Supreme Court shall appoint a member from that Area to serve on the Commission. The nonlawyer membersand the at large lawyer member of the Commission shall not be subject to the election procedure, but shall be appointed by the Court. In the event of a vacancy in the Commission, a successorshall be appointed by the SupremeCourt for the unexpired term of the member whose office is vacated. Members of the Commissionmay terminate their membershipat their pleasure,and their membershipmay be terminated by the Court at its pleasure.
B. Election of Officers. The membersof the Commission shall annually elect lawyer members as chairperson, vice chairpersonand executive secretary. The chairperson, and in the absence of the chairperson, the vice chairperson, shall preside at meetings of the Commission except that in the conduct of disciplinary hearingsthe chairpersonmay appoint another lawyer member of the Commission to act as presiding officer. A presidingofficer shall have all of the powers of the chairpersonin any casein which he or she has been appointed.
C. Quorum. Eight membersof the Commission shall constitute a quorum when the Commission is acting as a whole. The act of a majority of the memberspresentat a meeting at which a quorum is present shall be the act of the Commission. D. Meetings. Members ofthe Commissionshall meet at times and placesdesignated by the chairperson or, in the absenceof the chairperson by the vice chairperson, who shall detemrine the agendafor meetings. Notice of any such meeting shall be given by mail or by telephonenot less than seven calendardays in advanceof the time for such meeting, except in cases of emergency or urgency requiring, in the judgment of the person calling the meeting, a shorter time of notice. Also, the Supreme Court may call a meeting of the members to be held at a time and place ordered by the Court. Notice of such meeting shall be given as above provided. The minutes of any meeting of the Commission shall state the form and time of notice of meeting given to the members.
E. Executive Committee. The chairperson,vice-chairpersonand executivesecretary of the Commission shall constitute the executive committee. The principal function of the executive committee shall be to attend to administrative matters during the interval between meetings of the Commission. The executive committee shall have such other duties and authority as the Commission shall determine from time to time.
F. Compensation and Expenses. Members of the Commission shall receive no compensation for their services, but may be reimbursed for travel and other expenses incidental to the performance of their duties.
G. Powers and Duties of the Commission. The Commission shall exercise the following powers and duties:
(1) Adopt rules or policies providing for the time and place of meetings, and such other procedural rules,not in conflict with these rules, as may be necessary to expedite the conduct of its business. (2) Periodically review the operation of the lawyer disciplinary system with the Supreme Court. (3) Establish Review Panelspursuant to Rule 3. (4) Establish Adjudicatory Panelspursuant to Rule 4. (5) Appoint and superviseany Commission staff. (6) Assure~that Review Panelmember who sits on a particular casedoesnot a also sit on an Adjudicatory Panel for that case. (7) Maintain all permanentrecords of disciplinary matters and proceedings. (8) Exercisesuch other authority and perform suchother dutiesas are provided in these rules, or that may be required in order to carry out the provisions of these rules. (9) Operate subject to budgetary limitations imposed by the Court.
3 RULE 3--REVIEW PANELS: Cumposition; Powers and Duties; Quorum
A. Composition. The Chairperson of the Commission shall appoint one or more Review Panels of five members each, at least two of whom shall be non-lawyers; shall designatea Chairperson for eachReview Panel;and shall realign the membershipof Review Panelsfrom time to time.
B. Powers and Duties. A Review Panel shall: (1) Review the complaint, the response from the lawyer against whom the complaint was made and any reply from the complainant together with other relevant documents and Disciplinary Counsel’s ,intake summary, investigative report and recommendations. (2) Determine any preliminary and procedural matters. (3) Refer complaint to Disciplinary Counsel for any further investigation. (4) Dismiss the complaint when the facts do not appearto warrant disciplinary action. (5) Request Disciplinary Counsel to prepare and file with an Adjudicatory Panel a formal complaint when the facts appearto warrant disciplinary action. (6) Request Disciplinary Counsel to prepare and file with an Adjudicatory Panel a complaint proposing interim suspensionin an appropriate case. (7) Hear and determine requests for reconsiderationpursuant to Rule 14. (8) Authorize the stay of disciplinary proceedings for good cause shown pursuant to Rule 28. (9) Conduct show cause hearings when a lawyer has refused to respond to inquiries from the Office of Disciplinary Counsel or the Commission. (10) Notify parties of action by a Review Panel.
C. Quorum. Three members of a Review Panel,at least two of whom are lawyers, shall constitute a quorum, however, any act of the Review Panel shall require the vote of three members.
RULE 4--ADJUDICATORY PANELS: Composition; Powers and Duties; Quorum
A. Composition. The Chairperson of the Commission shall appoint one or more Adjudicatory Panelsof nine memberseach,at least three of whom shall be nonlawyers; shall designatea Chairperson for each Adjudicatory Panel; and shall realign the membership of Adjudicatory Panelsfrom time to time.
B. Powers and Duties. Adjudicatory Panelsshall, in accordancewith the specific proceduresand provisions of these Rules: (I) Hold hearingson formal complaintsand complaints for interim suspension foiledby Disciplinary Counsel; (2) After hearing, make findings of fact, conclusions of law and recommendationsto the Court for discipline or other disposition of formal complaints and complaints for interim suspension. (3) Hear and determine preliminary and procedural matters incidental to the exercise of its powers and duties. (4) Administer private admonitions pursuant to Rule 13. (5) Hear and determine requestsfor reconsideration pursuant to Rule 14. (6) Administer oaths, provide for discovery and exercise its subpoenapower pursuant to Rule 19. (7) Authorize the stay of a disciplinary proceeding for good cause shown pursuant to Rule 28. (8) Hold show cause hearings when a lawyer has refused to respond nor cooperatewith the Office of Disciplinary Counsel,a Review Panelor an Adjudicatory Panelpursuant to Rule 24. (9) Administer discipline by consentpursuant to Rule 26. (10) Conduct proceedingsrelative to disability and transfer to inactive status pursuant to Rule 28. (11) Hold hearingson petitions for reinstatementand make recommendations for their disposition to the SupremeCourt pursuant to Rule 29. (12) Hold hearings and make recommendations to the Court concerning assessment the costs of proceedings,investigations and audits pursuant to Rule 9. of
C. Quorum. Five members of an Adjudicatory Panel, at least three of whom are lawyers, shall constitute a quorum, however, any act of the Adjudicatory Panelshall require the vote of three members.
RULE 5--OFFICE OF DISCIPLINARY COUNSEL
A. Appointment. The Court shall appoint a lawyer to serveas Disciplinary Counsel. Disciplinary Counsel shall not engagein private practice; shall be admitted to practice in Montana at the time of appointment or within a reasonabletime thereafter as determined by the Court; and shall maintain offices in Helena, Montana, in facilities designated by the court.
B. Powers and Duties. Disciplinary Counsel shall perform all prosecutorial functions and shall have the following powers and duties: (I) Supervise Office of Disciplinary Counsel (Office) staff in performing central intake functions:
5 (2) Evaluateall information coming to the attention of the Ofticc to determine whether it is within the disciplinary jurisdiction ofthe Court; (3) Investigate all information coming to the attention of the Office which, if true, would be grounds for discipline or transfer to disability/inactive status; (4) Investigate all facts pertaining to petitions for reinstatement or readmission; (5) Recommend discipline; (6) Prosecute before Review Panels, Adjudicatory Panels and the Court, discipline, interim suspension, reinstatement and readmission proceedings, and proceedings for transfer to or from disability/inactive status; (7) Employ and supervise Office staff needed for the performance of prosecutorial functions and, when circumstances necessitatetheir use, appoint and supervise special investigators and volunteer special counsel; (8) Notify promptly the complainant and the lawyer that an investigation is to be initiated by Disciplinary Counsel; (9) Develop written guidelines for determining which matters fail to allege facts that would constitute grounds for disciplinary action; (10) Request the Clerk of the Supreme Court to notify eachjurisdiction in which a lawyer is admitted of a transfer to or from disability/inactive status, reinstatement, readmission or any public discipline imposed in this state; (11) Whenever costs have been assessed against a lawyer by the Supreme Court, assembleand serve on the lawyer an itemized list of the costs of proceedings, investigations and audits; (12) Seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction; (13) Forward a certified copy of the judgment of conviction to the disciplinary office in eachjurisdiction in which a lawyer is admitted when the lawyer is convicted of a serious crime (as hereinafter defined) in this state; (14) Maintain permanent records of discipline and disability matters and compile statistics to aid in the administration of the system; (15) Prepare an annual budget for the Office and submit it to the Court for approval; (I 6) Make reasonableand necessaryexpenditures pursuant to the approved budget to perform the duties of the Office; (I 7) Supervise and direct Office staff and operations; (18) Prepareand submit to the Court recommendationsconcerning the annual assessment Bar members; and of (19) Make recommendations the Court about the lawyer regulation system. to
6 C. I’rohibitetl Activities. Disciplinary counsel shall not have authority to render advisory opinions, either orally or in writing; to dismiss a complaint; or to impose any form of discipline on a lawyer.
RULE 6--COSTS AND EXPENSES; FISCAL REVIEWS AND AUDITS
A. Office of Disciplinary Counsel. The costs and expenses of the Office of Disciplinary Counsel shall be paid from an annualassessment active membersof the State of Bar of Montana. The Supreme Court in its discretion shall determine the amount of the annual member assessment.
B. Commission on Practice. The costs and expensesof Commission shall be paid from legislatively appropriated public funds.
C. Fiscal Reviews and Audits. The Court may direct fiscal reviews and audits of the components of the lawyer regulation system.
RULE 7--JURISDICTION
Any lawyer admitted to practice law in the Stateof Montana and any lawyer specially admitted by a court of the State of Montana for a particular proceeding or appearing by pleading or otherwise in any judicial proceeding in the State of Montana or otherwise engaging in the practice of law in the State of Montana is subject to the disciplinary jurisdiction of the Supreme Court of the State of Montana. If a lawyer, becauseof allegationsof misconductor againstwhom formal disciplinary proceedings have been filed, shall surrender his or her license to practice law, the Commission retains jurisdiction to proceed with formal disciplinary proceedings and shall thereafter enter its order of discipline or recommendation for discipline in accordancewith the rules.
RULE S--GROUNDS FOR DISCIPLINE
A. Reasons for Discipline. Discipline may be imposed for any of the following reasons: (I) Acts or omissions by a lawyer, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct or the disciplinary rules adopted from time to time by the Supreme Court. (2) Any act committed by an attorney contrary to the highest standards of honesty,justice or morality, including but not limited to, thoseoutlined in parts 3 and 4 of Chapter 6 I, Title 37, Montana Code Annotated, whether committed in such attorney’s capacity as an attorney or otherwise. (3) Conduct which results in conviction of a criminal offense. (4) Conduct which results in lawyer discipline in anotherjurisdiction. (5) Violation of the terms of any discipline or disciplinary order. (6) Failure to promptly and fully respond to an inquiry from Disciplinary Counsel, an investigator, or the Commission, or failure to justify such refusal or nonresponse. (7) Willful contempt of court and failure to purge the contempt.
B. Relationship to Criminal Proceedings. Acquittal of a charge of crime, plea bargain, conviction of a lesser crime, or dismissal of a charge of crime after deferred imposition of sentence,shall not constitute a bar to lawyer discipline for that act, nor shall conviction in a criminal proceedingbe a condition precedentto the institution of disciplinary proceedings for that act.
RULE 9--DISCIPLINE AND SANCTIONS
A. Forms of Discipline. Discipline may take one or more of the following forms: (1) Disbarment. (2) Suspension from the practice of law for a definite period of time or for an indefinite period of time with a fixed minimum term. (3) Public censure. (4) Private admonition. (5) Probation. (6) Requirement of restitution to persons financially injured. 1 (7) Reimbursement to the Lawyers’ Fund for Client Protection. (8) Assessment of the cost of proceedings, investigations and audits. Whenever costs of proceedings are assessed the Supreme Court as part of the by discipline imposed upon a lawyer, the Disciplinary Counselshall assembleand serve upon the lawyer an itemized list of those costs. The lawyer shall then have ten days thereafter in which to file written objections and, if so desired, request a hearing before an Adjudicatory Panelon whether the amount of such costs is reasonableand necessary. An Adjudicatory Panelshall thereafter recommend an amount of costs to be imposed,and shall file its recommendation,along with any objectionsthereto, with the SupremeCourt, which shall then issuean appropriate order assessingcosts. (9) Interim suspensionpending final determination of discipline.
R B. Discipline Criteria. The following thctors shall be considered in cletcrmining discipline to be recommendedor imposed: (1) The duty violated; (2) The lawyer’s mental state; (3) The actual or potential injury causedby the lawyer’s misconduct; and (4) The existenceof aggravating or mitigating factors.
C. Probation. A lawyer againstwhom disciplinary proceedingsare pending, may be placed on probation by the Supreme Court, or, with lawyer’s concurrence, by an Adjudicatory Panel.The probation shall be for such time and upon such terms and conditions as are determined appropriate in the case. Discipline may be imposed for violation of any of the terms and conditions of such probation, including satisfactory completion of a diversion or treatment program.
D. Procedure for Discipline for Wiiful Contempt of Court and Failure to Purge the Contempt. Upon receipt of a certified copy of an order of contempt that has become final, the SupremeCourt may, in its discretion,issuean order to show causewhy the lawyer’s license to practice law should not be suspendedor other discipline should not be imposed. The lawyer againstwhom such an order has beenentered in district court shall not have the right or opportunity to re-litigate the merits of the contempt order, the right to hearing and due process having been afforded him or her in the district court. In the alternative, the SupremeCourt may direct an Adjudicatory Panel to issue the order to show cause or direct the lawyer to appear before the Adjudicatory Panel. In that event, the Adjudicatory Panel shall make a written recommendation to the Supreme Court regarding suspensionof the lawyer’s license or other discipline. An attorney who has beenpurged of the contempt order may be reinstatedto practice law. Prior to reinstatement, the lawyer shall be required to pay the costs of any proceedings before the Commission on Practice.
II PROCEDURE
RULE IO--OFFICE OF DISCIPLINARY COUNSEL PROCEDURE
A. Central Intake and Evaluation. The Office of Disciplinary Counsel shall perform central intake functions including, but not limited to the following: (1) Receive information and complaints regarding lawyers’ misconduct from members of the public;
9 (2) Make appropriate referrals regarding information and complaints while assuring that any member of the public who wishes to make a complaint against a lawyer is able to do so; (3) Send to the complainant a packet of written materials containing forms, instructions and information about Montana’s lawyer disciplinary process; and (4) Receive written complaints on the forms provided.
B. Preliminary Review and Processing of Informal Complaints. The Office of Disciplinary Counsel shall: (1) Conduct a preliminary review of each written complaint received by the Office and determine whether the complaint involves a matter that is within the disciplinary jurisdiction of the Court; and (2) Where the complaint does not appear to be within the disciplinary jurisdiction of the Court, advisethe complainant in writing and determine whether the complainant still wishes to proceed with the complaint.
C. Investigation. When the complaint appears to be within the disciplinary jurisdiction of the Court or where the complainant otherwise wishes to proceed with the complaint, Disciplinary Counsel shall: (1) Send the complaint to the lawyer against whom the complaint is made; (2) Sendthe lawyer’s responseto the complainant and, if appropriate,request his or her reply to the lawyer’s response; (3) Prepare an intake summary; and (4) Conduct an investigation and prepare an investigative report.
D. Review Panel Proceeding. Disciplinary Counsel shall: (1) Preparerecommendationsto a Review Panel,including a recommendation of dismissal when the complaint does not warrant disciplinary action; (2) Presentthe intake summary, investigative report and recommendationsto a Review Panel, orally supplementingthem at the request of a Review Panel; and (3) Conduct further investigation at the request of a Review Panel.
E. Adjudicatory Panel Proceeding. Disciplinary Counsel shall: (1) Draft and prosecuteforma1complaints and complaints proposing interim suspensionbefore an Adjudicatory Panel; (2) Recommend discipline or other disposition of a case to an Adjudicatory Panel; (3) Conduct any discovery pursuant to Rule 19; (4) At the request of an Adjudicatory Panel, investigate all allegations in a petition for reinstatement and present relevant evidence at an Adjudicatory Panel hearing on the petition; and
IO (5) Advocate findings of fact and conclusions of law resulting from Adjudicatory Panelproceedings.
RULE II--REVIEW PANEL PROCEDURES
A Review Panel shall: (1) Review the complaint, the responsefrom the lawyer against whom the complaint was made, and any reply from the complainant,together with other relevant documents and Disciplinary Counsel’s intake summary, investigative report and recommendations; (2) Determine any preliminary and procedural matters; (3) Refer complaint to Disciplinary Counsel for any further investigation; (4) Dismiss the complaint when the facts do not appearto warrant disciplinary action and notify the complainant and lawyer of the Review Panel’s action; (5) RequestDisciplinary Counselto prepareand file a formal complaint when the facts appear to warrant disciplinary action; (6) Request Disciplinary Counsel to prepare and file a complaint proposing interim suspensionin an appropriate case; and (7) When undisputed facts prove an ethical violation by clear and convincing evidence,recommend to an Adjudicatory Panelimposition of a private admonition in appropriate cases.
RULE 12--ADJUDICATORY PANEL PROCEDURE
A. Complaint and Citation. When a Review Panel has determined that formal disciplinary proceedings shall be instituted against a respondentlawyer: (1) Disciplinary Counsel shall file a formal complaint with the Clerk of the Supreme Court and shall furnish a copy to the Adjudicatory Panel; (2) The complaint shall set forth the charges with sufficient clarity and particularity as to inform the lawyer of the alleged misconduct; (3) The complaint shall be signed by Disciplinary Counsel but need not be verified; and (4) The Clerk of the SupremeCourt shall issuea citation which, together with a copy of the complaint, shall be served on the lawyer; the citation shall require the lawyer to file a written answer to the complaint with the Clerk within twenty days.
B. Answer. (1) The lawyer shall serve a copy of the answer in the Commission and on Disciplinary Counsel.
II (2) If the lawyer fails to answer within the prescribed time, the chargesshall be deemedadmitted. An Adjudicatory Panelto which the casehas beenassignedmay make findings and impose on the lawyer such discipline and sanctionsas these rules authorize. (3) An Adjudicatory Panel may elect to hold a hearing notwithstanding the lawyer’s failure to answer, after notice of hearing has been given.
C. Hearing, Findings and Conclusions. (1) If the lawyer files an answer, Disciplinary Counsel shall consult with the Commission to determine a hearing date before an Adjudicatory Panel. The Commission shall file and serve upon Disciplinary Counsel, the lawyer, the lawyer’s counsel, if any, and any complainant, a notice of hearing setting forth the date, time and place of hearing, which notice shall be served upon said persons at least twenty days in advancethereof. The lawyer is entitled to be representedby counsel,to cross- examine witnesses, and to present evidence. The hearing shall be recorded. (2) In the conduct of a hearing,the Chairpersonof an Adjudicatory Panelshall have authority to rule on all motions, objections, and other matters presented in connectionwith the hearing. Except asmay otherwise be provided herein, and except as an Adjudicatory Pane1 Chairperson may determine in the interests of justice and fairness, hearingsin formal disciplinary proceedingsshall be conductedin accordance with the Montana Rules of Civil Procedureand the Montana Rules of Evidence. (3) Following the hearing, an Adjudicatory Panel shall make findings of fact, conclusionsof law and a recommendationto the SupremeCourt for discipline or other disposition of the case.
RULE 13--PRIVATE ADMONITIONS
At any time before initiation of formal disciplinary proceedings, an Adjudicatory Panel, in its discretion, may give a private admonition to the lawyer in the name of the Supreme Court, either orally or in writing, with or without imposition of costs of proceedings,and may require the lawyer to appearpersonally before an Adjudicatory Panel to receive the admonition. Thereupon,the matter shall be deemedterminated except that the Commission shall maintain a record of such admonition which record may be consideredby Adjudicatory Panels in determining discipline to be recommended or imposed in any subsequent disciplinary proceeding involving the lawyer. Private admonitions are not appealable.
RULE 14--REQUEST FOR RECONSIDERATION BY COMPLAINANT
I? A Rcvicw or Adjudicatory Panel. before which a matter is pending, shall advise complainants in writing that a complainant who is not satisfied with the disposition of a complaint by the Panel,may, within thirty daysof receipt of notice of the disposition,petition the Panelfor reconsideration. The Panel,upon reconsideration,may approve the disposition or take such other action as may be appropriate and notify the complainant and the lawyer. The Supreme Court may, in its sole discretion, review the Panel’s disposition upon reconsideration.
RULE 15-EX PARTE COMMUNICATIONS PROHIBITED
Disciplinary Counsel and members of Review Panels, Adjudicatory Panels, the Commission and the Supreme Court shall not communicate exparte among themselvesor with others regarding the merits of a pending or impending investigation or a disciplinary proceeding except as permitted by the Rules for Lawyer Disciplinary Enforcement. Communications for purposesof scheduling,administration and procedural matters shall not be prohibited but shall be conducted to assurefairness to all parties.
RULE 16--REVIEW BY THE SUPREME COURT
After service of a copy of the findings of fact and conclusions of law and recommendation of discipline to the lawyer and to lawyer’s counsel, if any, the lawyer shall have thirty days from date of service within which to file with the Court objections to the findings of fact and conclusionsof law and recommendationof discipline, and a written brief in support thereof. The lawyer or the lawyer’s counselshall serveupon Disciplinary Counsel a copy of any such objections and brief in support thereof. Disciplinary Counsel shall have thirty days after date of service of such objectionsand written brief within which to file with the Court a written brief in opposition to such objections, and a copy of such brief shall be served upon the lawyer or the lawyer’s counsel. The Court may, in its discretion, set the matter for oral argument if the Court deemsoral argument appropriate. Thereafter, or in the event objections are not filed by the lawyer, the matter shall be deemedsubmitted and the Court shall determine the appropriate discipline, if any, authorized by these rules. In the event objections are not filed, the matter shall be deemedsubmitted at the expiration of the time for filing objections and the SupremeCourt shall consider the matter, issue its written decision, and impose such discipline if any, as it considersappropriate. In the imposition of discipline, the Court may fix a time and place for the lawyer to appearbefore it. The Clerk shall notify the Commission, Disciplinary Counsel, the lawyer and the lawyer’s counselof the time and place of the appearanceand the purpose thereof. At such time and place the lawyer shall appearin person, may be accompaniedby counsel, and may make a statement with respect to the discipline to be imposed. Thereupon the Court shall impose such discipline as il deemsappropriate. Proof of all service required herein shall be made in accordance with Rule 5(f), Montana Rules of Civil Procedure.
RULE 17--IMMUNITY
A. From Civil Suit. Communications or complaints, oral or written to, or from, the Commission andthe Office of Disciplinary Counsel, and testimony given in the proceedings are privileged, and no evidencethereof is admissiblein any lawsuit against any complainant, witness, Commission member, Commission staff, Disciplinary Counsel, Office of Disciplinary-Counsel staff, investigator, specialcounselor other person employedor retained by the Commission or the Office of Disciplinary Counsel. Waiver, if any, of such privilege by voluntary disclosure by a complainant or witness shall be determined under Rule 503, Montana Rules of Evidence. Members of the Commission, Commission staff, Disciplinary Counsel, Office of Disciplinary Counselstaff, investigator, specialcounsel,any other person employed or retained by the Commission to represent it in Commission matters, staff members,and personsacting for the Commission, shall be immune from suit for any conduct undertaken in good faith in the course of their official duties under these rules. All of said persons are deemed officers and/or agents of the Court for all purposesmentioned in these rules.
B. From Criminal Prosecution. Upon application of Disciplinary Counsel or the Commission and after reasonablenotice to and written consentfrom the appropriate county attorney(s), the Supreme Court may order that a witness cannot be prosecuted or subjected to any penalty or forfeiture, other than a prosecution or action for perjury or contempt, for or on account of any transaction, matter, or thing concerning which the witness testified or produced in a lawyer disciplinary proceeding.
RULE l&-SERVICE
A. Service of Complaint. Service upon the lawyer of a complaint in a formal disciplinary proceeding shall be made by personal service by any person designatedby the Office of Disciplinary Counsel or authorized by law, or by registeredor certified mail at the last known address of the lawyer, and proof thereof shall be made as provided in Rule 4, Montana Rules of Civil Procedure. B. Service ofOther Papers. Serviceofany other papersor noticesrequiredby these rules shall, unlessotherwise provided by theserules, be made in accordancewith the Rules of Civil Procedureof the State of Montana.
RULE 19--OATHS, SUBPOENA POWER AND DISCOVERY
A, Oaths. Any member of the Commission or other person authorized by law may administer oaths and affirmations in matters pending before the Commission.
B. Subpoenas. Any member of the Commission may, at the request of an investigator, the Office of Disciplinary Counsel, or the lawyer, compel, by subpoena,the attendanceof witnesses and the production of pertinent books, papers, and documents. Any person subpoenaed appearand give testimony, or to produce pertinent books, to papers or documents, who fails or refuses to appear or to produce such books, papers, or documents, or any person having been sworn to testify, who refuses to answer any proper questions, may upon request of the Commission or the Office of Disciplinary Counsel be cited for contempt of the Supreme Court. The Commission or the Office of Disciplinary Counsel shall report to the Court the facts relating to any such contempt. Thereupon, proceedings before the Supreme Court shall be had as in casesof other contempts. The SupremeCourt may, upon proper application, enforce the attendanceof any witness and the production of any documents subpoenaed.
C. Quashing Subpoena. Any attack on the validity of a subpoenaso issuedshall be heard and determined by the chairperson of the Commission, or in his or her absence,the vice-chairperson or executive secretary, subject to review by the Supreme Court, at the request of the Disciplinary Counsel or the lawyer.
D. Discovery. Disciplinary Counsel and the lawyer shall be afforded reciprocal discovery. Disputes concerningthe scopeand other aspectsof discovery shall be determined by the chairperson, or in his or her absence vice-chairperson, of the Adjudicatory Panel. the
E. Witnesses and Fees. Witness fees and mileage shall be the sameas provided by law for witnesses in civil actions in the District Courts of the State of Montana.
RULE 20--ACCESS TO DISCIPLINARY INFORMATION
A. Confidentiality. All disciplinary proceedingswhich are prior in time to the filing of a formal complaint with the Clerk of the SupremeCourt shall be confidential. Upon the tiling of a formal complaint, the Commission’s entire tile on the matter shall be subject to discovery. B. Public Proceedings. Upon the filing of a formal complaint with the Clerk of the Supreme Court in a disciplinary matter, or upon the tiling with the Clerk of the Supreme Court of a petition for reinstatement,the proceedingsbefore the Commission thereafter shall be public except for: (1) Deliberations and minutes of the Commission; and (2) Information or proceedingswith respect to which an Adjudicatory Panel or Supreme Court has issued a protective order.
C. Violation. Violation by any person of any confidential information under these rules shall be punishable as a contempt of the Supreme Court.
D. Duty of Participants. All participants in a proceeding under these rules shall conduct themselvesso as to maintain the confidentiality mandatedby this rule.
RULE 21--DISSEMINATION OF DISCIPLINARY INFORMATION
Notice of Discipline Imposed. The Clerk of the SupremeCourt shall causecopies of orders and notices of transfer to disability/inactive status, public censure, suspension, disbarment, and reinstatement to be given to the Clerks of all of the District Courts of the State of Montana, all of the District Judgesof the State of Montana, the Clerk of the Federal District Court for the District of Montana, the Clerk of the Circuit Court of Appeals of the Ninth Circuit, the Chairperson of the Commission, and the Executive Director of the State Bar of Montana, or as the SupremeCourt otherwise may direct.
RULE 22--ADDITIONAL RULES OF PROCEDURE
A. Proceedings Governed by Rules of Civil Procedure. Except as otherwise provided in these rules, the Rules of Civil Procedure of the State of Montana apply in disciplinary cases.
B. Standard of Proof. Formal chargesof misconduct and grounds for reinstatement shall be establishedby clear and convincing evidence.
C. Burden of Proof. The burden of proof in formal proceedingsseekingdiscipline is on Disciplinary Counsel. The but-denof proof in reinstatement proceedings is on the person seeking reinstatement.
16 D. Availability of Hearing Transcript. A copy of the record of a hearing shall be made available to the lawyer at his or her expenseon request made to the Commission.
E. Related Pending Litigation. The proceeding of a disciplinary matter shall not be delayed becauseof substantial similarity to the material allegations of pending criminal or civil litigation unlessa Review Panelor an Adjudicatory Panel in its discretion authorizes a stay for good causeshown, but only after notice to the complainant, Disciplinary Counsel, the lawyer and the lawyer’s counsel and opportunity to be heard by the complainant.
F. Delay Caused by Complainant. Neither unwillingness nor neglect of the complainant to sign a complaint nor to prosecute a charge, nor a settlement, nor a compromise between the complainant and the lawyer, nor restitution by the lawyer shall, in itself, justify abatementof the processing of any complaint.
G. Effect of Time Limitations. Except as is otherwise provided in theserules, time is directory and not jurisdictional. Failure to observeprescribed time intervals may result in sanctionsagainstthe violator but doesnot justify abatementof any disciplinary investigation or proceeding.
H. Complaints Against Commission Members. Allegations of grounds for discipline against members of the Commission shall be processedin the same manner as allegationsagainstnonmembersof the Commission;provided, however, that the Commission member against whom such allegationsare made shall be disqualified from participating in any manner as a Commission member with respect to that matter. Further, in the event of allegationsof grounds for discipline being madeagainstany member of the Commission,the Supreme Court wi,ll be immediately notified of such allegations, and the Commission will keep the Court informed in a timely manner of the status of the matter.
I. Dismissed Complaints. A complaint which is dismissed or upon which no disciplinary action is taken or recommended, shall be expunged from Commission and Disciplinary Counsel records and for all purposes shall be considered as null, void and nonexistent.
RULE 23--LAWYERS CONVICTED OF A CRIMINAL OFFENSE
A. Transmittal of Certificate of Conviction. The clerk or other official of any court in this state, in which a lawyer subject to the disciplinary jurisdiction of the SupremeCourt has been convicted of a criminal offense shall, within thirty days of the date of conviction, transmit a certificate of conviction to the Supreme Court, Disciplinary Counsel and to the Commission on Practice.
17 B. Procedure on Receipt of’ Certificate of Conviction. Upon receipt of the certificate of conviction the Supreme Court, either on its own motion or on that of the Disciplinary Counsel, shall determine whether the criminal offense is one which affects the lawyer’s ability to practice law. If the Court determinesthat the lawyer was found guilty of a criminal offense that affects the lawyer’s ability to practice law, the SupremeCourt shall enter an order immediately suspendingthe lawyer from the practice of law pending final disposition of a disciplinary proceedingpredicatedupon the conviction. The SupremeCourt shall in the same order direct Disciplinary Counsel to prepare and file a formal complaint against the lawyer predicated upon the conviction. If the criminal offense does not involve the lawyer’s ability to practice law, the SupremeCourt shall enter an order to that effect and, thereafter, the matter shall be processedlike any other information coming to the attention of the Commission. The Court need not give notice to the lawyer, nor shall a hearing be required, prior to its determination of whether the criminal offense of which the lawyer was convicted was one which affects the lawyer’s ability to practice law nor shall a hearing be required prior to the SupremeCourt’s enteringan interim order of suspension.A copy of any order enteredpursuant to this rule shall be servedupon the lawyer, Disciplinary Counseland the Commission. Upon good causeshown, the Court may in the interest of justice set aside or modify the interim suspension,however, the interim suspensionmay not be set aside solely by reason of a pending appealof the conviction to the SupremeCourt or becauseof an appealby trial de nom
C. Formal Proceedings After a Conviction. The sole issueto be determinedin the formal disciplinary proceedingsconductedafter a lawyer is convicted of a criminal offense which affects the lawyer’s ability to practice law shall be the extent of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appealsfrom the conviction are concluded unlessthe lawyer requeststhat the matter not be deferred.
D. Certificate of Conviction Conclusive. A certificate of conviction of a lawyer for a criminal offense shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the lawyer basedupon the conviction.
E. Automatic Reinstatement From Interim Suspension Upon Reversal of Conviction. If a lawyer suspendedsolely under the provisions of paragraph B above, demonstrates that the underlying conviction has been reversed or vacated, the order for interim suspensionshall be vacatedand the lawyer placed on active status. The vacating of the interim suspension will not automatically terminate any formal proceeding then pending against the lawyer, the disposition of which shall be determined by the Adjudicatory Panel on the basis of the available evidence. F. Notice to Clients and Others on Interim Suspension. An interim stlspension order entered pursuant to this rule shall constitute a suspensionof the lawyer for purposes of Rule 2 I,
RULE 24--FAILURE TO RESPOND TO THE OFFICE OF DISCIPLINARY COUNSEL OR THE COMMISSION
If a lawyer subject to the jurisdiction of the Commission should fail or refuse to promptly and fully respondto a complaint or other inquiry communicated to such lawyer in writing by the Office of Disciplinary Counsel or the Adjudicatory or Review Panel before which the matter is pending, the Panel, in addition to other proceedings authorized by these rules, may direct such lawyer to appear before the Panel and show causewhy appropriate discipline or sanctionshouldnot be imposedfor failure to respondor cooperate. If the matter is pendingbefore a Review Panel,and the lawyer fails to show good cause,the Review Panel shall refer the matter to an Adjudicatory Panel. Notice of such show causehearing shall be servedupon the lawyer at leasttwenty daysprior to the hearing. If at such hearingthe lawyer shall fail to respond or show a just or reasonablecausefor not responding, then in addition to the disciplines and sanctions otherwise provided by these rules, the Adjudicatory Panel may, upon determination of its appropriateness,recommend to the Supreme Court the immediate interim suspensionof such lawyer for a period not to exceedthirty days, or such earlier date asthe attorney shall fully respondto and cooperatewith the Disciplinary Counsel and the Commission on Practice.
RULE 25-CONDUCT CONSTITUTING THREAT OF HARM TO CLIENTS
A. Transmittal of Evidence. Upon receipt of evidenceconstituting probable cause that a lawyer subject to the disciplinary jurisdiction of the SupremeCourt has committed a violation of the Rules of ProfessionalConduct or is incapacitated and, in either case,poses a substantial threat of serious harm to clients or the public, an Adjudicatory Panel shall: (1) Transmit the evidenceto the SupremeCourt together with a proposedorder for interim suspension;and (2) Contemporaneouslymake a reasonableattempt to provide the lawyer with notice, which may include notice by electronic means, that a proposed order for interim suspensionhas beentransmitted to the SupremeCourt.
B. Interim Suspension. The SupremeCourt may, on its own motion, or basedupon a recommendation to it by an Adjudicatory Panel, direct a lawyer to appear before the Supreme Court and show cause why the lawyer’s license to practice law should not be suspendedduring the pendcncy of either criminal proceedingsor disciplinary proceedings
I9 and, after a hearing, the Suprcmc Court may enter an order suspendingthe lawyer’s license for a definite or indefinite period, or may dischargethe order to show cause. In the event the order suspending license is entered, the Supreme Court may appoint a trustee pursuant to Rule 33 to protect clients’ interests. Further, the Court may make an order relieving the lawyer of any fiduciary position held by the lawyer and appoint a trustee to assumethose fiduciary positions.
C. Notice to Clients. The lawyer suspended pursuant to the foregoing paragraph,or the lawyer’s trustee appointedpursuant to Rule 33, if one is so appointed, shall comply with the notice requirements of Rules 30 and 32.
RULE 26--DISCIPLINE BY CONSENT
A. Adjudicatory Panel Approval of Tendered Admission. A lawyer concerning whom an investigation is being conducted becauseof allegations of misconduct, or against whom formal disciplinary proceedingshave been filed may tender a conditional admission to the complaint or to a particular count thereof in exchangefor a stated form of discipline. The tenderedadmissionshall be submitted to an Adjudicatory Panel. An Adjudicatory Panel may refer the tendered admission to the Disciplinary Counsel for recommendations. The Adjudicatory Panel may either approve or reject the tenderedadmission. The Adjudicatory Panel, with the lawyer’s consent, may hold a private hearing for the purpose of obtaining information to aid the Adjudicatory Panel in determining whether to approve or reject the tendered admission. If the tenderedadmission is approvedby the Adjudicatory Panel,such approval shall be final if the statedform of discipline is private admonition, but shall, if the stated form of discipline includes disbarment, suspensionor public censure, be subject to approval or rejection by the SupremeCourt. If the stated form of discipline is rejected by either the Adjudicatory Panel or the Supreme Court, the admission shall be deemed withdrawn and cannot be used against the lawyer in any subsequentproceedings.
B. Affidavit of Consent. If the statedform of discipline is approved,the lawyer shall present to the Adjudicatory Panelan affidavit stating his or her consent to the discipline and that: (1) The lawyer’s consentis freely andvoluntarily tendered,and that the lawyer is not being subjectedto coercion or duress,and that the lawyer is fully aware of the implications of submitting the consent; (2) The lawyer is aware that there is presently pending an investigation into, or proceedinginvolving, allegationsthat there exists grounds for discipline, the nahlre of which the lawyer shall specifically set forth; (3) The lawyer acknowledgesthat the material facts so alleged are true or the lawyer submits his or her consentbecause or she knows that if chargespredicated he
20 upon the matters under investigation were filed, or if the pending proceeding WCI-c prosecuted, he or she could not successfully defend himself or herself. The final order of discipline shall be predicated upon the complaint, if any, the conditional admission, the affidavit; and such other information and evidence to which the Disciplinary Counsel and the lawyer may have stipulated, or which may have been elicited at a private hearing referred to in Rule 26A.
C. Order of Discipline. If the discipline by consent is a private admonition by the Adjudicatory Panel, the Adjudicatory Panel shall enter the order. In all other instancesin which the proposed discipline has been approved, the Supreme Court shall enter the order. The order of discipline by consent shall be filed with the Clerk of the Supreme Court, and a copy thereof shall be served upon the lawyer, the lawyer’s counsel, the Commission, Disciplinary Counsel and the complainant.
D. Confidentiality. All tenderedadmissionproceedingsprior to entry of a consent discipline order shall be confidential and subjectto the provisions of Rule 20 of theseRules.
RULE 27--RECIPROCAL DISCIPLINE
A. Commission to Obtain Order of Discipline from Other Jurisdiction. Upon being disciplined in another jurisdiction, a lawyer admitted to practice in Montana shall promptly inform the Supreme Court, the Commission, and Disciplinary Counsel of such action. Upon notification that a lawyer subjectto the disciplinary jurisdiction of the Supreme Court has been disciplined in another jurisdiction, the Disciplinary Counsel shall obtain a certified copy of the disciplinary order and tile it with the Commission and with the Supreme court.
B. Notice Served Upon the Lawyer. Upon receipt of a certified copy of an order demonstrating that a lawyer admitted to practice in Montana hasbeen disciplined in another jurisdiction, the Court shall forthwith issue a notice directed to the lawyer containing the following: (I) A copy of the order from the other jurisdiction; and (2) An order directing that the lawyer inform the Court, within thirty days from the date of service of the notice, of any claim by the lawyer predicated upon the grounds set forth in paragraph D of this rule, that the imposition of the identical discipline in the state of Montana would be unwarranted and the reasonstherefor.
C. Effect of Stay of Discipline in Other Jurisdiction. In the event the discipline imposed in the otherjurisdiction has beenstayedthere, any reciprocal discipline imposedin Montana may be deferred until the stay expires.
21 D. Discipline to be Imposed. Upon the expiration of thirty days from service ofthe notice pursuant to the provisions of paragraphB of this rule, the SupremeCourt shall impose the identical discipline unlessthe lawyer demonstrates,or the Court finds that upon the face of the record from which the discipline was predicated it clearly appearsthat: (1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) That there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the SupremeCourt could not, consistent with its duty, accept as final the conclusion on that subject; (3) The imposition of the samediscipline by the SupremeCourt would result in grave injustice; or (4) The misconduct establishedwarrants substantially different discipline in the State of Montana. If the SupremeCourt determinesthat any of those elementsexists, it shall enter such other order as it deems appropriate.
E. Conclusiveness of Adjudication in Other Jurisdiction. In all other aspects,a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposesof a disciplinary proceeding in the state of Montana.
RULE 2%-DISABILITY/INACTIVE STATUS
A. Grounds. A lawyer subject to the disciplinary jurisdiction of the SupremeCourt shall be transferred to disability/inactive status if: (1) The lawyer asserts an inability to assist in the defense of disciplinary proceedings; (2) The lawyer is determined, upon hearing, to have a physical or mental condition which adverselyaffects the lawyer’s ability to practice law to the extent that the lawyer is incapacitated from continuing to practice law; or (3) The lawyer is judicially declared incompetent or involuntarily committed on grounds of incompetency or disability by a court of competentjurisdiction.
B. Proceedings. (1) Proceedingsto determine a lawyer’s inability to assist in the defenseof disciplinary proceedings or to determine incapacity shall be conducted in the same manner as formal disciplinary proceedingspursuant to Rules 11 and 12, except that all of the proceedingsshall be confidential.
22 (2) Counsel may he appointed by the Commission to represent a lawyer without adequaterepresentation. (3) The Adjudicatory Panelmay order examinationofthe lawyer by qualified medical experts selectedby the Adjudicatory Panel.
C. Report and Recommendation. The report and recommendation of the Adjudicatory Panel shall be subject to review and determination by the Supreme Court as provided in Rule 16.
D. Notice of Transfer. Unless otherwise ordered by the Court, notice of transfer to disability/inactive status shall be given to thosepersons and in the manner provided in Rule 30.
E. Term of Disability/Inactive Status. Transfer to disability/inactive status, unless otherwise specifiedby order, shall be for an indefinite period and may include suchterms and conditions for reinstatement as may be appropriate.
F. Stay of Disciplinary Proceedings. Pending disciplinary proceedings shall be deferred during the period of a lawyer’s inability to defend. Suchproceedingsshall be heard and disposedof asprovided in theserules upon reinstatement of the lawyer to active status.
G. Reinstatement. (1) A lawyer transferred to disability/inactive status may petition for transfer to active status after six months, or such other time period specified in the order of transfer, or in subsequentorders. (2) Upon receipt of a petition for transfer to active status, the Adjudicatory Panel shall schedulea hearing on the petition as soon aspracticable. Proceedingsfor transfer to active status shall be conductedin the samemanner as formal proceedings pursuant to Rule 29, except that all of the proceedings shall be confidential. The Adjudicatory Panelmay order examinationof the lawyer by qualified medical experts selectedby the Adjudicatory Panel. (3) A petition for transfer to active status shall be granted upon a showing by clear and convincing evidencethat the disability has been removed. (4) A lawyer previously judicially declared incompetent may petition for immediate transfer to active status,without hearing, upon proof ofjudicial declaration of competency by a court of competentjurisdiction.
RULE 29--REINSTATEMENT
23 A. After Suspension of Six Months or Less. A lawyer suspended for no more than six months may resume practice at the end of the period of suspensionby filing with the Court, and serving upon the executive secretary of the Commission, and Disciplinary Counsel, an affidavit alleging that the lawyer hasfully complied with the requirementsof the suspensionorder, and paying any required fees and costs ordered by the Court.
B. After Disbarment or Suspension for More Than Six Months. Subject to the limitations set forth in Rule 29C, any lawyer who shall havebeendisbarredor who shall have been suspended indefinitely or for more than six months may, by verified petition, apply for: (1) An order of reinstatement; (2) An order shortening the term of a fixed period of suspension;or (3) An order modifying an order of indefinite period of suspensionby fixing a definite period of suspension. Such petition shall bear the case number and caption appearing in the order of discipline, and an original and one copy thereof shall be filed with Disciplinary Counsel, the Commission on Practice, and by the Commission filed with the Clerk of the SupremeCourt and made a part of the record in said case. Such petition shall set forth the facts that show the lawyer contends that he or she has rehabilitated himself or herself, or that he or she is entitled to have the order of discipline vacated, terminated or modified.
C. Time for Filing Petition. (1) A lawyer suspendedfrom practice may not petition for reinstatement earlier than ninety days prior to the end of the period of the fixed term or minimum fixed term of the suspension. (2) A lawyer serving an indefinite suspension beyondthe minimum fixed term may petition for reinstatement at any time. (3) No petition for reinstatementshall be filed by a disbarredlawyer until five years after the effective date of disbarment.
D. Hearing and Notice on Application. Upon receipt of a petition, the Commission shall, within ninety days after receipt of such petition, or such later date as may be mutually agreedupon by petitioner and the Commission, schedulean Adjudicatory Panelhearing on the petition. The petitioner shall have the burden of demonstratingby clear and convincing evidence that he or she meets the following criteria, or, if not, has presented good and sufficient reasonwhy he or she should neverthelessbe reinstated: (1) The lawyer has fully complied with the temls of all prior disciplinary orders; (2) The lawyer has not engagednor attempted to engagein the unauthorized practice of law; (3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension, including alcohol or other drug abuse, the
2.i disability or infirmity has been removed, and ~vherealcohol or other drug abusewas a causative factor in the lawyer’s misconduct, the lawyer: a. has pursued appropriate rehabilitative treatment; and b. has abstainedfrom the use of alcohol or other drugs for at least one year, and is likely to continue to abstain from alcohol or other drugs; (4) The lawyer recognizesthe wrongfulnessand seriousness the misconduct; of (5) The lawyer has not engagedin any other professional misconduct since suspension; (6) The lawyer has the requisite honesty and integrity to practice law; and (7) The lawyer has kept informed about recent developments in the law and is competent to practice. The proceedings before the Adjudicatory Pane1relating to such petition shall be governed by the applicable provisions of these rules governing hearings in disciplinary proceedingsincluding Rule 20 concerningconfidentiality, unlessotherwise provided herein or unless otherwise ordered by the Court. Notice of such hearing shall be given to the public in such manner and to such extent as the Adjudicatory Panel deems appropriate in each case. In any event, notice of such application or petition shall be given to the SupremeCourt, all of the Judgesof the District Courts of the State of Montana, all of the FederalDistrict Judgesof the District of Montana, and the Executive Director of the StateBar of Montana. The notice of hearingshall set forth that any interested person may testify at the hearing. An Adjudicatory Panel may request Disciplinary Counsel to investigate the allegations set forth in the petition for reinstatement and present relevant evidence at the hearing.
E. Deposit for Cost of Proceeding. Upon receipt of a petition for reinstatement,an Adjudicatory Panel,before proceedingfurther, may require the petitioner to depositwith the Commission an amount deemedreasonableby the Commission to cover anticipatedcosts of the reinstatement proceedings.
F. Recommendation of Commission and Action by Court. The Adjudicatory Panel shall make a written recommendation to the Supreme Court on the petition for reinstatement, including the imposition of such conditions to reinstatement as it deems appropriateto protect the public interest. Thereuponthe SupremeCourt shall, in the exercise of its discretion, take such action as it deemsadvisable.
RULE 30--NOTICE TO CLIENTS AND OTHERS
A. Recipients of Notice and Contents of Notice. Unless otherwise ordered by the Adjudicatory Panelor the SupremeCourt, within ten days after the date of the order of the
2s Court imposing the discipline ofdisbarment or suspension,the lawyer shall notify or cause to be notified by registered or certified mail, return receipt requested: (1) All clients being representedin pending matters; (2) Any co-counsel in pending matters; and (3) Any opposing counsel in pending matters or, in the absence of such counsel, the adverseparties, that the Court has ordered the disbarment or suspension of the lawyer and that the lawyer is therefore disqualified to act as a lawyer after the effective date of the order.
B. Notice to Clients of Lawyers Who Are Disbarred or Suspended. The lawyer shall deliver to all clients being representedin pending matters any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.
C. Notification to Court. In the event the client does not obtain another lawyer before the effective date of the disbarment or suspension,it shall be the responsibility of the lawyer to notify in writing the judge of the court having jurisdiction of the pending matter of the circumstances.
RULE 31--EFFECTIVE DATE OF ORDER, WINDING UP OF AFFAIRS
Orders imposing discipline shall be effective immediately upon entry, unless the Adjudicatory Panelor the SupremeCourt specifiesotherwise in the order. The lawyer, after entry of a disbarment or suspensionorder, shall not engageas a lawyer for any new caseor legal matter of any nature. The lawyer shall refund any part of any fees paid in advance which have not been earned.
RULE 32--AFFIDAVIT FILED WITH COURT
Within twenty days after the effective date of the disbarmentor suspensionorder, the lawyer shall file with the Supreme Court, the Adjudicatory Panel, and the Disciplinary Counsel an affidavit showing: (1) The lawyer has fully complied with the provisions of the order and with these rules; (2) A list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and (3) The lawyer’s residence or other addresseswhere communications may thereafter be directed to him or her.
26 RULE 33--APPOINTMENT OF TRUSTEE TO PROTECT CLIENTS’ INTEREST WHEN THE LAWYER HAS BEEN DISBARRED OR SUSPENDED
A. Inventory of the Lawyer’s Files. If a lawyer has been disbarred or suspended and there is evidence the lawyer has not complied with Rule 30, and no partner, personal representativeor other responsibleparty capableof conducting the lawyer’s affairs is known to exist, the presiding judge in the judicial district in which the lawyer maintained his or her practice, upon proper proof of the fact, shall appoint an attorney or attorneys as trustee to inventory the files of the lawyer, and to take such action as seemsindicated to protect the interest of the lawyer and the lawyer’s clients.
B. Protection for Records Subject to Inventory. Any attorney so appointed shall not be permitted to disclose any information contained in any files inventoried without the consentof the client to whom the file relates,except as necessary carry out the order of the to court which appointed the attorney to make the inventory.
RULE 34--VERIFICATION OF BANK ACCOUNTS
Whenever Disciplinary Counsel hasprobable causeto believe that the bank accounts of a lawyer that contain, should contain, or have contained funds belonging to clients, have not been properly maintained or that the funds have not been properly handled, the Disciplinary Counsel may initiate an investigation for the purposeof verifying the accuracy and integrity of ali bank accounts maintained by the lawyer, and an investigator may be appointed by the Disciplinary Counsel for that purpose. Investigations, examinations, and verifications shall be conducted so as to preserve the private and confidential nature of the lawyer’s records insofar as is consistentwith these rules and the attorney-client privilege, provided, however, that all investigatory materialsmay be provided to, or exchanged with, the State Bar of Montana, Lawyers’ Fund for Client Protection.
RULE 35-EFFECTIVE DATE
These rules are effective July 1, 2002, provided, however, that any matter then pending shall be concluded under the procedure existing prior to the effective date of these rules.
27 OF MONTANA JUSTICE AND CITY COURT 1 ORDER RULES OF CIVIL PROCEDURE, 23C and 23D 1
The Commission on Courts of Limited Jurisdiction has brought a conflict between
Montana Justice and City Court Rules of Civil Procedure 23 C and 23D and 5 25-13-402,
MCA, to the attention of this Court. Rule 23D allows a writ of execution to remain in effect
for 120 days from the date of issuance. However, 3 25-13-402, MCA, allows a sheriff or
levying officer to execute a writ no later than 120 days after receipt of the writ.
Consequently,Rule 23D, and the text in the sampleform appendedto Rule 23C, incorrectly
shorten the amount of possible time a sheriff or levying officer has to execute a writ by
statute.
Therefore, in order to conform the proceduralrules to the time frames establishedby
statute,
IT IS ORDERED that, effective on the date of this order,
1. Rule 23D of the Montana Justice and City Court Rules of Civil Procedure is
amendedto read:
D. RETURN OF EXECUTION. The writ of execution shall remain in effect for 120 days from the date of receipt by the sheriff or levying officer and may be served multiple times during that period at the direction of the judgment creditor.
2. The standardizedform in Rule 23C is amendedto read “and return of this writ not
lessthan IO days nor more than 120 days after the date of receipt.” IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail
copies of this Order to:
The Code Commissioner and Director of Legal Services for the State of Montana;
The Judgesof the Courts of Limited Jurisdiction of the State of Montana;
James H. Goetz, Chairman of the Advisory Commission on Rules of Civil and Appellate Procedure;
The President and Executive Director of the State Bar of Montana with the request that this order be published in the next available issue of The Montana Lawyer Andy on the State Bar’s Webpage;
The StateReporter Publishing Company with the requestthat this order be published in the State Reporter; and
The StateLaw Librarian with the requestthat this order be publishedon the StateLaw Library’s Webpage.
DATED this &th day o “-*I :’ g ,Y ‘.
IN THE SUPREME COURT OF THE STATE OF MONTANA ““* A .:
IN THE MATTER OF THE AMENDMENT OF MONTANA JUSTICE AND CITY COURT RULE OF CIVIL PROCEDURE 4C
The Commission on Courts of Limited Jurisdiction has requestedthat a sample civil
summonsform be addedthe Montana Justiceand City Court Rules of Civil Procedurefor use
‘by those courts. The Commission believesthis form will clearly indicate to defendants,what
their responsibilities and options are upon receiving service of the summons.
Our review of the Montana Justice and City Court Rules of Civil Procedureindicates
that the proposed form is in compliance with the current rules, including specifically Rule
4C which governs the required form of process. Therefore,
IT IS ORDERED, effective on the date of this order, that the sample civil summons
form attachedto this Order be includedin the Montana Justiceand City Court Rules of Civil
Procedure as an appendix to Rule 4C;
IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail
The Code Commissioner and Director of Legal Servicesfor the State of Montana;
The Judgesof the Courts of Limited Jurisdiction of the State of Montana;
James H. Goetz, Chairman of the Advisory Commission on Rules of Civil and Appellate Procedure;
The President and Executive Director of the State Bar of Montana with the request that this order be published in the next available issueof T/2en/(or~tcfr~c~ LUM~Wand on the State Bar’s Webpage;
The StateReporter Publishing Company with the requestthat this order be published in the State Reporter; and
The StateLaw Librarian with the requestthat this order be publishedon the StateLaw Library’s Webpage.
DATED this &th day olfiihsx%. Address
PlaintWPlaintiff Attorney telephone number
IN THE JUSTICE/CITY COURT OF COUNTY, MONTANA
BEFORE , JUSTICE OF THE PEACE!CITY JUDGE.
***********
Plaintiff, j Civil Case
VS. i SUMMONS
;
THE STATE OF MONTANA TO THE ABOVE-NAMED DEFENDANT, GREETINGS:
You areherebysummoned answer Complaintin this actionwhich is filed in the office to the of the above-entitledJusticeof the Peace/CityJudge, copy of which is herewithservedupon you. a In the eventthat you denyany or ahof thematerialfactsstatedin thecomplaint,you must file your v&ten answertogetherwith a S15.00 answer for eachDefendant fee with the above-entitledCourt, and serve a copy of your answeruponthe Plaintiff or attorney at the address shown on the as Complaint.
The answermust containa denialof any or all of the materialfactsstatedin the Complaint that the Defendantbelieves be untrue,andalsoa statement, plainor directmanner,of any other to in facts constitutinga defense.Any matternot deniedshallbe deemed admitted.If you fail to answer or asserta counterclaimwithin twenty (20) daysafter serviceof the Complaintand Summons,the Plaintiff may requestenhy of default judgment against for the reliefdemanded theComplaint. you in
GIVEN under my handthis- day of ,200-.
JUDGE/CLERK OF COURT
Related
Cite This Page — Counsel Stack
2001 MT 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-rules-for-lawyer-discipli-mont-2002.