In Re the Creation of the Office of Discipline Counsel , 307 Mont. 210 ( 2001 )

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IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 257______________________________
IN RE THE CREATION OF THE OFFICE )
OF DISCIPLINE COUNSEL; THE )
THE ADOPTION OF STRUCTURAL )
CHANGES TO THE COMMISSION ) O R D E R
ON PRACTICE; AND THE ADOPTION )
OF CHANGES TO MONTANA'S )
SYSTEM OF DISCIPLINING LAWYERS. )
__________________________________
Introduction
1. ¶Over the past decade Montana's system for disciplining lawyers has been studied,
criticized, lauded and litigated. Some maintain that this system is not broken and
does not need to be fixed. Others argue that flaws inherent in the structure of the
system threaten the constitutional rights of those caught up in its processes. Still
others maintain that our current system does not adequately protect the public from
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unethical members of the Bar.
2. ¶Whatever truth there may be in any of these positions, the fact is that for decades
countless good and decent lawyers have devoted immeasurable hours of their time;
have, in many instances, contributed their own funds; have sacrificed their practices;
and have selflessly given of their collective experience and good judgment to the
cause of disciplining errant members of their profession. For that service and to
those who continue to serve this cause, the Bench and Bar, in general, and this
Court, in particular, are grateful.
3. ¶However, there is no institution or process that cannot be improved. What might
have been accepted and acceptable in the past, is unacceptable in the present.
Whether changes are necessitated by actual or simply perceived shortcomings, at
some point, those charged with the responsibility for the system must act to preserve
the integrity of the institution and public and professional confidence in its
processes and work product. This Court is now at that point.
4. ¶In our January 9, 2001 Order In the Matter of Revisions of the Rules for Lawyer
Disciplinary Enforcement, we acknowledged the State Bar of Montana's (Bar)
request for and our need to consider improvements to Montana's lawyer disciplinary
enforcement system. Though we adopted changes to Montana's Rules for
Disciplinary Enforcement on petition of the Commission on Practice (Commission)
in our Order of September 21, 2000, we specifically declined to address the Bar's
suggested structural changes to our system for disciplining lawyers until this Court
was reconstituted this year. That accomplished, our January 9, 2001 Order started a
process of study and meetings which culminated in the Bar and Commission
submitting to this Court on September 5, 2001, a Proposed Disciplinary Structure
report.
5. ¶Having carefully considered and deliberated on this report, along with the
comments and discussion made at the September 5, 2001 public meeting attended
by representatives of the Court, the Bar, the Commission and members of the
public, and further comments and suggestions made by the Bar and the Commission
in response to a draft of certain portions of this order, we have determined that the
following changes to Montana's system and structure for disciplining lawyers shall
be made:
Office of Discipline Counsel
1. ¶There is created an Office of Discipline Counsel which shall be staffed by an
attorney licensed to practice law in Montana and who shall perform the duties of
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Discipline Counsel hereafter set forth; by an administrative assistant; and by a
person who has the qualifications of both a paralegal and an investigator. Discipline
Counsel shall be hired by and shall be subject to the supervision of this Court. Other
Office of Discipline Counsel staff shall be hired by Discipline Counsel and shall be
subject to the supervision and direction of Discipline Counsel.
2. ¶Discipline Counsel and staff shall be employees of the Bar for administrative
purposes only and shall be paid by and provided employment benefits by the Bar
from dues payments assessed members of the Bar for this purpose as are, from time
to time, determined by this Court. Salaries of Discipline Counsel and staff shall be
determined and set by this Court.
3. ¶Discipline Counsel and staff shall be officed in discrete space, separate from the
offices of the Bar and separate from the administrative offices and staff of the
Commission.
4. ¶The Office of Discipline Counsel shall perform certain "central intake" functions
including: receiving, by telephone, complaints regarding lawyers from members of
the public; making referrals regarding these complaints as appropriate while
insuring that any member of the public who wishes to make a complaint is able to
do so; sending to the potential complainant a packet of written materials containing
appropriate forms, instructions and discussion of Montana's lawyer disciplinary
process; and receiving written complaints on the forms provided.
5. ¶Discipline Counsel shall have the following duties and those other duties assigned
by this Court in its discretion from time to time: Discipline Counsel shall
preliminarily review each written complaint received by the Office of Discipline
Counsel and shall determine whether the complaint involves a matter of lawyer
discipline over which the Commission has jurisdiction. Where the complaint
appears to be not within the jurisdiction of the Commission, Discipline Counsel
shall so advise the complainant in writing and determine whether the complainant
still wishes to proceed with the complaint. Where the complaint appears to be within
the jurisdiction of the Commission or where the complainant otherwise wishes to
proceed with the complaint, Discipline Counsel shall: send a copy of the complaint
for response to the attorney against whom the complaint is made; if appropriate,
request a reply to the response from the complainant; in each case, prepare an intake
summary and recommendation to the Commission, including a recommendation of
dismissal where the complaint is not within the jurisdiction of the Commission; and,
if warranted under the Rules of Lawyer Disciplinary Enforcement, recommend
temporary suspension of the lawyer to the Commission, which then may or may not
recommend temporary suspension to this Court.
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6. ¶Additionally, Discipline Counsel shall: investigate complaints referred from the
Commission Review Panel(s); present written reports of investigation and appear
before the Commission to orally supplement reports of investigation; draft and
prosecute complaints requiring interim suspension and formal complaints filed
before the Commission; recommend discipline to the Commission; and advocate
findings of fact and conclusions of law resulting from Commission discipline
proceedings.
7. ¶Discipline Counsel shall have no authority to dismiss any complaint or impose any
form of discipline on any lawyer.
8. ¶Discipline Counsel shall be the chief administrative officer of the Office of
Discipline Counsel with authority and responsibility to supervise and direct the
operations of the office and of all staff; to prepare budget recommendations; to
prepare Bar member dues assessment recommendations; and to make
recommendations, generally, to this Court regarding the lawyer discipline system.
Structural Changes to the Commission
1. ¶The Commission shall, at a date to be determined by further Order of this Court,
organize itself and operate in one or more Review Panels and in one or more
Adjudicatory Panels as hereinafter set out. All matters pending on the
aforementioned date shall continue to be processed under the procedure and rules
then in use and effect. Complaints against members of the Bar received by the
Office of Discipline Counsel on and after the date aforementioned shall be
processed under the panel system.
2. ¶Three new members shall be added to the Commission. Two new members shall be
non-lawyers and one new member shall be a lawyer licensed to practice in Montana.
The new lawyer member shall be a member "at large" and may be appointed from
any of the presently existing areas as set forth in Rule 1 of the Rules for Lawyer
Disciplinary Enforcement. The manner of election and appointment of the three new
members shall be in accordance with Rule 1, except to the extent modified herein.
3. ¶The fourteen-member Commission shall, under the direction of its Chairperson,
organize itself into one or more Review Panels consisting of five persons and one or
more Adjudicatory Panels consisting of nine persons. The Chairperson shall, from
time to time, realign the membership of the panels providing always for a fair
representation of lawyers and non-lawyers on each panel. The Commission shall
determine the frequency, method, place and scheduling of panel meetings, subject to
the direction of this Court in this document and as otherwise ordered from time to
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time.
4. ¶The administrative staff of the Commission shall track the panel membership
insuring that no Review Panel member who sits on a particular case also sits on the
Adjudicatory Panel for that case or otherwise deals with that case in any manner.
The administrative staff of the Commission shall also take minutes of panel
meetings and perform such other duties as the Commission shall, from time to time,
direct.
5. ¶The Review Panel(s) shall: review the complainant's complaint, the response from
the attorney against whom the complaint was made and any reply from the
complainant along with relevant documents, Discipline Counsel's intake summary,
and any report of investigation and recommendations by Discipline Counsel;
determine and decide preliminary and procedural matters; refer the complaint to
Discipline Counsel for further investigation or filing of a formal complaint and, if
appropriate, a complaint requesting interim suspension, when the facts appear to
warrant disciplinary action; or dismiss the complaint when the facts do not appear to
warrant disciplinary action.
6. ¶The Adjudicatory Panel(s) shall, in accordance with the specific procedures and
provisions of the Rules for Lawyer Disciplinary Enforcement: hear, determine and
make findings of fact, conclusions of law and recommendations to this Court as to
all formal complaints and complaints for interim suspension filed against lawyers by
Discipline Counsel.
Miscellaneous
1. ¶There shall be no "term limits" for members of the Commission.
2. ¶The date of implementation for the foregoing and the amount of dues assessment to
the members of the Bar by this Court to fund the Office of Discipline Counsel and
the structural changes to the Commission will be determined and set by subsequent
Order. It is expected, however, that the changes effected by this Order will be
implemented prior to July 1, 2002.
3. ¶The foregoing is a general statement of intent by this Court regarding the matters
discussed herein. We contemplate that there are and will be a myriad of details to be
worked out with all those concerned and involved; that amendments to the Rules for
Lawyer Disciplinary Enforcement will be necessary to implement these changes;
and that there will likely be further Orders refining and clarifying these matters as
necessary.
4. ¶Finally, we gratefully acknowledge the hard work and professional guidance that
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the Commission, its administrative staff, and the Bar and its administrative staff
have provided to this Court in connection with the foregoing. We realize that this
has been and will be a difficult transition for many. Nonetheless, we are satisfied
that these changes in Montana's system for disciplining lawyers will improve the
system for the benefit of the members of the Bar; for the benefit of the profession as
whole; and for the benefit of the public we all serve.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that the Clerk of this Court shall give notice of this Order by
mail to: the Chairman of the Commission and to each member thereof; to the President
and Executive Director of the Bar, with the request that this order be published
prominently in the next issue of the Montana Lawyer and posted to the Bar's webpage; to
the State Law Librarian for the State of Montana with the request that this Order be posted
to the State Law Library's webpage; to the State Reporter Publishing Company; and to
WestGroup. DATED this 11th day of December, 2001.
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE
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