Matter of Joseph Howard ( 2023 )

ORIGINAL 06/01/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: PR 23-0071 PR 23-0071 FILED JUN O 1 2023 Bowen Greenwood Clerk of Supreme Court IN THE MATTER OF JOSEPH HOWARD, State of Montana An Attorney at Law, ORDER Respondent On January 26, 2023, the Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint with the Commission on Practice (Commission) against Montana attorney Joseph Howard. The disciplinary complaint may be reviewed by any interested person in the office of the Clerk of this Court. On February 10, 2023, Howard tendered an admission and affidavit of consent pursuant to Rule 26(B) of the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). Howard acknowledged that the material facts ofthe complaint were true and that he had violated the Montana Rules of Professional Conduct (MRPC) as alleged by ODC. After ODC concurred with Howard's tendered admission, the Commission set the matter for hearing on April 20, 2023. Howard personally appeared at the hearing. On May 18, 2023, the Commission submitted to this Court its Findings of Fact, Conclusions of Law and Recomrnendation Re Rule 26 Conditional Admission and Affidavit of Consent in which it recommended that this Court approve Howard's conditional admission and enter an order imposing the agreed-upon discipline. We agree with the Commission's recommendation. In his conditional admission, Howard admitted that he accepted appointment by the Office of the State Public Defender to represent C.W. in a postconviction relief matter on July 21, 2014. A few weeks later, Howard moved the District Court to vacate the briefing schedule to provide Howard with more time to review the file. The court granted the motion and ordered that he request a scheduling or status conference once he had reviewed the file. Although Howard maintains that he spent a significant amount of time reviewing C.W.'s file and he remained in communication with his client, he failed to request a scheduling conference or file any other documents for over four years. On November 16, 2018, the District Court entered a Notice for Failure to Prosecute that gave Howard 60 days to file a document or the case would be dismissed. Howard filed a Notice on January 14, 2019, that stated his intention to file an Amended Petition by June 1, 2019. Howard filed the Amended Petition and brief in support on May 31, 2019; however, the State moved to dismiss the Amended Petition on thebasis of "inexcusable delay" and the court granted the motion on October 30, 2019. C.W. appealed the dismissal of his postconviction relief petition. This Court ultimately reversed the dismissal, determining that the delay in the trial court was due to Howard's inaction and it was unfair to penalize C.W. Howard admitted that, by failing to file an Amended Petition in C.W.'s case for over four years, he violated M. R. Pro. Cond. 1.3, 3.2, and 8.4(d). He further admitted that by failing to withdraW from C.W.'s case when he was obligated to do so, he, violated Mont R. Pro. Cond. 1.16(a)(1) and (b)(7). Howard tendered his Conditional Admission and Affidavit of Consent in exchange for discipline that the Commission recommends be accepted by this Court. Although the Commission is concerned by Howard's failures in his representation of C.W., the Commission notes that this is Howard's first disciplinary matter of any kind and the agreed- upon discipline is consistent with' that given to attorneys in similar cases that have come before the Commission. Based upon the foregoing: IT IS HEREBY ORDERED: 1. The Conimission's Recommendation that we accept Howard's Rule 26 tendered admission is ACCEPTED AND ADOPTED. 2 2. Howard is SUSPENDED from the practice of law for 30 days, commencing July 1, 2023. 3. Howard shall pay the costs incurred by ODC and the Commission in connection with this matter. 4. Howard shall obey all laws and comply with the MRPC. Any violation of the MRPC, or any federal or state law, will constitute a violation of a court order and may result in further discipline. 6. Pursuant to MRLDE 26(D), the Clerk of this Court is directed to file copies of Howard's Conditional Admission and Affidavit of Consent, together with the Commission's Findings of Fact, Conclusions of Law, and Recommendations for Discipline. The Clerk of this Court is directed to serve a copy of this Order of Discipline upon Joseph Howard, and to provide copies to Disciplinary Counsel, the Office Administrator for the Commission on Practice, the Clerks of all the District Courts of the State of Montana, each District Court Judge in 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, and the Executive Director of the State Bar of Montana. , s 4- -54. h 07_, DATED this I — day of-May„ 2023. hief Justice 3 c_,4 : /j ..,It4, ,: 9 ...,:, Justices fc'... . 4