Montana Supreme Court Commission on the Unauthorized Practice of Law v. O'Neil

No. 04-857
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 284
MONTANA SUPREME COURT
COMMISSION ON THE
UNAUTHORIZED PRACTICE OF LAW,
Petitioner and Respondent,
v.
JERRY O’NEIL, on Behalf of Himself,
His Clients, and His Constituents,
Respondent and Appellant,
v.
THE MONTANA STATE BAR ASSOCIATION,
Defendant and Respondent.
APPEAL FROM: The District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV 02-378B,
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jerry O’Neil (pro se), Columbia Falls, Montana
For Respondent Montana Supreme Court Commission on the
Unauthorized Practice of Law:
David A. Hawkins, Attorney at Law, Helena, Montana
For Respondent Montana State Bar Association:
Stephen C. Berg, Johnson, Berg, McEvoy & Bostock, Kalispell, Montana
Betsy Brandborg, Attorney at Law, Helena, Montana
For Amicus Curiae:
The Honorable Mike McGrath, Montana Attorney General,
Anthony Johnstone, Assistant Attorney General, Helena, Montana
Submitted on Briefs: April 5, 2006
Decided: November 8, 2006
Filed:
__________________________________________
Clerk
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Justice James C. Nelson delivered the Opinion of the Court.
¶1 The Montana Supreme Court Commission on the Unauthorized Practice of Law
(the Commission) filed a Petition for Finding Civil Contempt and for Permanent
Injunction against Jerry O’Neil (O’Neil). O’Neil filed a counterclaim against the
Commission along with a third-party complaint against the State Bar of Montana (the
Bar) 1 alleging defamation, tortious interference with contract and violation of his, his
customers’ and his constituents’ rights to privacy. Prior to trial, the District Court for the
Eleventh Judicial District, Flathead County, granted the Bar’s Motion for Summary
Judgment on O’Neil’s third-party complaint against the Bar. The court also granted the
Commission’s Motion for Summary Judgment on O’Neil’s counterclaim against the
Commission, but denied the Commission’s Motion for Summary Judgment on the issue
of whether O’Neil engaged in the unauthorized practice of law. Following a bench trial,
the court entered its Judgment and Permanent Injunction finding O’Neil in contempt and
enjoining him from practicing law.
¶2 O’Neil appeals the District Court’s judgment as well as the court’s grants of
summary judgment to the Commission and to the Bar. O’Neil also challenges the
constitutionality of §§ 37-61-201 and -210, MCA. We affirm.
¶3 We address the following issues on appeal:
¶4 1. Whether O’Neil’s third-party complaint against the Bar was timely filed.
1
O’Neil erroneously denominated his action against the Bar as a counterclaim.
However, since the Bar was not a party to the original action, O’Neil’s claim against the
Bar was actually a third-party complaint and will be referred to as such throughout this
Opinion.
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¶5 2. Whether the District Court erred in granting the Bar’s and the Commission’s
Motions for Summary Judgment.
¶6 3. Whether the District Court abused its discretion in denying O’Neil a jury trial.
¶7 4. Whether §§ 37-61-201 and -210, MCA, are constitutional as applied by the
District Court.
¶8 5. Whether the District Court erred in finding that O’Neil engaged in the
unauthorized practice of law.
Factual and Procedural Background
¶9 O’Neil is not, and never has been, licensed to practice law in the State of Montana.
He has not attended law school; he has not sat for the Montana bar examination; and he
has not met the Montana Supreme Court’s character and fitness requirements. O’Neil is
not licensed to practice law in any state of the United States. O’Neil served as a Montana
State Senator in the 2001, 2003 and 2005 legislative sessions.
¶10 O’Neil advertised in the Greater Flathead Valley CenturyTel telephone book as an
“independent paralegal” under the “Attorney” heading in the yellow pages. The
advertisement included the statements that he is “Licensed to Practice Law in Blackfeet
Tribal Court” and that he is a “MEMBER: Child & Family Section of the Montana State
Bar.”
¶11 On February 13, 2001, Eleventh Judicial District Court Judges Ted Lympus,
Katherine Curtis and Stewart Stadler wrote the Commission to complain that O’Neil may
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be engaged in the unauthorized practice of law. The Judges asked the Commission to
investigate O’Neil’s actions.
¶12 The Commission had received other information prior to this time to the effect that
O’Neil’s actions may constitute the unauthorized practice of law. In June 1998, Judge
Lympus wrote to then Montana Supreme Court Chief Justice J. A. Turnage concerning
O’Neil’s efforts to represent one of the parties in a dissolution proceeding before the
District Court. In February and March 2000, a social worker with Adult Protective
Services complained to the Commission that O’Neil was attempting to offer legal advice
to an incapacitated individual for whom the social worker was acting as a guardian.
O’Neil was purportedly acting on behalf of the incapacitated individual’s ex-wife, against
whom a restraining order had been issued. In January 2001, a member of the
Commission received a transcript sent at the request of Sixteenth Judicial District Court
Judge Joe Hegel. The transcript reflected that O’Neil assisted one of the parties in a
dissolution proceeding by preparing dissolution materials.
¶13 On May 16, 2001, Commission Chair John Connor wrote O’Neil asking for a
detailed description of the services O’Neil provided and the duties that he performed on
behalf of his customers. In his letter, Connor warned O’Neil that if he was engaged in
the unauthorized practice of law, he may be subject to civil complaint and criminal
prosecution. O’Neil’s reply acknowledged Connor’s request for information, but failed
to actually provide the requested information. Connor sent a second letter to O’Neil on
September 28, 2001, informing him that the Commission would be conducting an
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investigation to determine whether O’Neil was engaged in the unauthorized practice of
law. In his October 9, 2001 reply, O’Neil engaged in a tirade against the Commission
stating, “If your object is to try me without a jury, you had better bring along your chains
and restraints.”
¶14 On April 25, 2002, Connor again wrote O’Neil explaining that, based upon its
investigation to date, the Commission had determined that there was probable cause to
believe that O’Neil was engaged in the unauthorized practice of law. In his letter,
Connor directed O’Neil to cease and desist from all such activities. Connor further stated
that if the Commission did not receive a written assurance of compliance from O’Neil, it
would pursue appropriate legal action against him.
¶15 Because O’Neil failed to provide the written assurance requested, the Commission
filed its Petition for Finding of Civil Contempt and for Permanent Injunction on July 15,
2002. The Prayer for Relief requested that O’Neil be found in civil contempt for
engaging in the unauthorized practice of law and that the District Court issue a permanent
injunction prohibiting O’Neil from engaging in such conduct.
¶16 On November 19, 2002, O’Neil filed a counterclaim against the Commission and a
third-party complaint against the Bar, alleging defamation, tortious interference with
contract and violation of his, his customers’ and his constituents’ rights to privacy.
O’Neil also demanded a jury trial. O’Neil’s actions against the Bar and the Commission
were based on the following facts.
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¶17 On November 15, 2000, Bar general counsel Betsy Brandborg received a
telephone call from Julia Thomason at U.S. West Dex asking if O’Neil was a licensed
attorney and, if not, why he was listed under the “Attorney” heading in the Yellow Pages.
Brandborg explained that O’Neil was not a licensed attorney with the Bar. Thomason
requested a letter confirming that information and suggested that Brandborg also request
that O’Neil’s name be removed from the “Attorney” section of the Yellow Pages.
Brandborg wrote the following letter and sent a copy to O’Neil:
I have noticed that Jerry O’Neil’s “Independent Paralegal” advertisement is
included under the attorney listing in the yellow pages. Jerry O’Neil is not
an attorney. In spite of his representation to the contrary, Jerry O’Neil is
not a member of the State Bar of Montana. I request that you remove Jerry
O’Neil’s listing from the attorney section of the yellow pages.
¶18 On November 23, 2000, O’Neil wrote a letter in reply claiming that he was an
attorney duly licensed by the Blackfeet Tribal Court and the Confederated Salish and
Kootenai Tribal Court (CS&K Tribal Court). Upon receiving this information,
Brandborg called the CS&K Tribal Court and learned that while O’Neil was licensed as
an attorney in that court, they had based that licensure upon O’Neil’s representation that
he was licensed as an attorney in the Blackfeet Tribal Court. Brandborg next called the
Blackfeet Tribal Court and learned that O’Neil was a licensed lay advocate with that
court, not an attorney. Thereafter, Brandborg called the CS&K Tribal Court and
conveyed the information she had obtained from the Blackfeet Tribal Court that O’Neil
was not a licensed attorney with that court. The CS&K Tribal Court subsequently
terminated O’Neil’s license to practice before that court.
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¶19 Brandborg wrote a second letter to Thomason at U.S. West Dex, dated
December 5, 2000, to clarify the Bar’s position. This letter read in pertinent part:
As I indicated earlier, Jerry O’Neil is not an attorney, i.e., he has not given
the State Bar of Montana any information indicating that he has graduated
from an ABA accredited law school, taken Montana’s bar examination, or
been admitted to the State Bar of Montana as a member of the State Bar of
Montana. Mr. O’Neil is an associate member of the Family Law Section of
the State Bar of Montana. In accord with Article 1, Section 3 of our by-
laws, the fact of Mr. O’Neil’s associate membership with the Family Law
Section does not mean Mr. O’Neil can claim membership in the State Bar
of Montana.
As to Mr. O’Neil’s status with the Tribal Courts, it is appropriate for your
business to check with them. . . .
Brandborg did not convey this letter or the November 15, 2000 letter to the Tribes nor did
she write to either Tribe confirming the information in the telephone calls.
¶20 On September 10, 2004, the Bar filed its Motion for Summary Judgment arguing
that it was entitled to judgment as a matter of law because none of O’Neil’s three claims
for relief against the Bar satisfied the necessary elements of the law to state a claim. On
September 14, 2004, the Commission filed its Motion for Summary Judgment also
arguing that it was entitled to judgment as a matter of law because none of O’Neil’s
claims against the Commission satisfied the necessary elements of the law to state a
claim. In addition, the Commission asserted that it was also entitled to judgment as a
matter of law on its Petition for Finding of Civil Contempt and for Permanent Injunction
against O’Neil.
¶21 The District Court subsequently dismissed O’Neil’s third-party complaint against
the Bar as untimely filed. In its November 16, 2004 Order granting the Bar’s Motion for
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Summary Judgment, the District Court concluded that the third-party complaint was filed
more than 30 days after the Commission filed its petition and that O’Neil had not
obtained leave from the court or the parties to file the third-party complaint after the
30 days in violation of M. R. Civ. P. 14(a). The court also ruled that O’Neil’s claim of
defamation against the Bar failed as a matter of law under § 27-2-204(3), MCA, because
it was filed more than two years after the event triggering the claim, namely, the
November 15, 2000 letter from Brandborg to U.S. West Dex. Moreover, the court ruled
that the Bar was entitled to judgment as a matter of law because none of O’Neil’s claims
against the Bar satisfied the necessary elements of the law to state a claim.
¶22 On November 24, 2004, the District Court denied the Commission’s Motion for
Summary Judgment on its Petition for Finding of Civil Contempt and for Permanent
Injunction against O’Neil and granted the Commission’s Motion for Summary Judgment
as to O’Neil’s counterclaim against the Commission. The court ruled that there remained
genuine issues as to the material facts regarding O’Neil’s practice of law as alleged in the
Commission’s petition, thus summary judgment on that issue was not appropriate. The
court dismissed O’Neil’s counterclaims against the Commission with prejudice because
the Commission is immune from suit under Montana Commission on the Unauthorized
Practice of Law (M.C.U.P.L.) Rule 10, and because none of O’Neil’s claims against the
Commission satisfied the necessary elements of the law to state a claim.
¶23 Following a two-day trial, the District Court entered its Judgment and Permanent
Injunction finding O’Neil in contempt for engaging in the practice of law when he is not
9
authorized to do so and permanently enjoining him from engaging in the practice of law
“until such time as he becomes duly authorized.”
¶24 O’Neil appeals the Judgment and Permanent Injunction along with the District
Court’s grants of summary judgment to the Bar and to the Commission. The Bar and the
Commission jointly filed a response brief on appeal.
Standard of Review
¶25 We review a district court’s decision to grant summary judgment de novo. Watson
v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, ¶ 16, 136 P.3d 973, ¶ 16 (citing Farmers
Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 18, 321 Mont. 99, ¶ 18, 90 P.3d 381,
¶ 18). In doing so, we apply the criteria contained in M. R. Civ. P. 56(c), which provides
that the moving party must establish both the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. Watson, ¶ 16 (citing Grimsrud v. Hagel,
2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d 47, ¶ 14). The burden then shifts to
the non-moving party to prove, by more than mere denial and speculation, that a genuine
issue of material fact does exist. Watson, ¶ 16.
¶26 In addition, we review a district court’s findings of fact to determine if they are
clearly erroneous. Watson, ¶ 17 (citing Ramsey v. Yellowstone Neurosurgical Assocs.,
2005 MT 317, ¶ 13, 329 Mont. 489, ¶ 13, 125 P.3d 1091, ¶ 13). To make that
determination, we use the following three-part test: (1) whether the findings are
supported by substantial evidence; (2) whether the trial court has misapprehended the
effect of the evidence; and (3) whether a review of the record leaves this Court with the
10
definite and firm conviction that a mistake has been committed. Watson, ¶ 17. We
review a district court’s conclusions of law for correctness. Watson, ¶ 17 (citing Galassi
v. Lincoln County Bd. of Com’rs, 2003 MT 319, ¶ 7, 318 Mont. 288, ¶ 7, 80 P.3d 84, ¶ 7).
Issue 1.
¶27 Whether O’Neil’s third-party complaint against the Bar was timely filed.
¶28 The Commission filed its Petition for Finding of Civil Contempt and for
Permanent Injunction on July 15, 2002. O’Neil filed his Answer to Petition and Demand
for Jury Trial on August 2, 2002. O’Neil did not file his counterclaim against the
Commission and his third-party complaint against the Bar until November 19, 2002.
¶29 In its Findings of Fact, Conclusions of Law, and Order Regarding State Bar of
Montana’s Motion for Summary Judgment, the District Court ruled that O’Neil’s third-
party complaint was untimely under M. R. Civ. P. 14(a), which requires leave of all
parties to the action for the filing of a third-party complaint if the third-party complaint is
not filed within 30 days after serving the original answer. Here, O’Neil’s third-party
complaint was filed more than 30 days after he filed his answer. Nevertheless, O’Neil’s
third-party complaint would be considered timely if the parties to the action agreed to the
late filing. See M. R. Civ. P. 14(a).
¶30 O’Neil contends that for all practical purposes the Commission is identical in
interest and standing in this case to the Bar, thus his third-party complaint against the Bar
was timely filed along with his counterclaim against the Commission. Moreover, he
asserts that his counterclaim against the Commission and his third-party complaint
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against the Bar were incorporated in his original answer filed on August 2, 2002, wherein
he stated:
Respondent respectfully prays the Court for the following relief:
....
2. For all the relief requested in the Cross-claim to be filed in this cause to
be incorporated by such filing in this Response by reference . . . .
¶31 Contrary to O’Neil’s assertions, the Commission and the Bar are not the same
entity. The Bar is a membership organization unified by the Montana Supreme Court
to aid the courts in maintaining and improving the administration of justice;
to foster and maintain on the part of those engaged in the practice of law
high standards of integrity, learning, competence, public service, and
conduct; to safeguard proper professional interests of members of the
bar . . . and to insure that the responsibilities of the legal profession to the
public are more effectively discharged.
Supreme Court Order Unifying the State Bar, No. 12616 (1974). The Commission, on
the other hand, is a nine-member investigative committee composed of practicing lawyers
and non-lawyers appointed by this Court and charged with the duty to protect the public
interest by investigating complaints of unauthorized practice of law. M.C.U.P.L. Rules
1(a), 1(c) and 3(a).
¶32 Consequently, O’Neil’s contention that he did not need to meet the 30-day
requirement in M. R. Civ. P. 14(a) for third-party complaints because the Bar and the
Commission are the same entity is without merit.
¶33 O’Neil also contends that he had the District Court’s express permission for the
late filing rendered orally from the bench and that the Commission and the Bar agreed
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not to pursue any Rule 14 claims and to allow O’Neil to file the third-party complaint
against the Bar.
¶34 The transcript of the October 28, 2004 pretrial conference and hearing on the
Motions for Summary Judgment indicates that the following colloquy occurred:
MR. O’NEIL: . . . I don’t believe we need to have a special rule
from the Court to serve that [third-party complaint]. But if we do I would
request the Court to give us one retroactive in order to conserve the
resources of the Court so we don’t have to go back and litigate it over
again.
As far as the –
THE COURT: If that’s an issue before the Court, then, Mr. Berg,
Mr. Hawkins, do you wish to take a position on that?
MR. BERG [Counsel for the Bar]: Judge, for the State Bar it is an
issue. It is purely procedural. We are way down the line for it. We are
approaching trial. We don’t want to make it a substantive issue. We don’t
want this case to ride on that and find ourselves here in six months.
THE COURT: So you object to the filing –
MR. BERG: I will not object to what he is basically asking of us,
which is that we waive the –
THE COURT: 30 days.
MR. BERG: Yes.
THE COURT: All right. And then, Mr. Hawkins?
MR. HAWKINS [Counsel for the Commission]: I’d agree.
THE COURT: And, sir, based on the lack of objection from the
other two parties, then I will allow you to file the document that you wish
to file.
¶35 Based on the foregoing, it appears that the District Court and the parties agreed to
allow O’Neil to file his third-party complaint against the Bar even though it was not filed
within the time prescribed by M. R. Civ. P. 14(a).
¶36 Accordingly, we hold that the District Court erred in dismissing O’Neil’s third-
party complaint in part because it was untimely. Although we have determined that the
District Court erred on this issue, it is not necessary to remand for further proceedings
13
since the District Court also entered findings of fact and conclusions of law on the merits
of O’Neil’s third-party complaint against the Bar sufficient for this Court to consider on
appeal and we affirm on those issues.
Issue 2.
¶37 Whether the District Court erred in granting the Bar’s and the Commission’s
Motions for Summary Judgment.
¶38 O’Neil asserted three claims for relief against the Bar and the Commission:
defamation, tortious interference with contract and privacy. The defamation claim is
based on the letters written by Brandborg to U.S. West Dex. The tortious interference
claim involves those same letters and alleges that the Bar and the Commission
wrongfully interfered with O’Neil’s contracts with U.S. West Dex and with the tribal
courts and injured his ability to earn an income. As to the privacy claim, O’Neil alleges
that the conduct of the Bar and the Commission violated his, his customers’ and his
constituents’ rights to individual privacy “by interfering with their discussion and
disclosure of matters involving the preparation and strategy of their personal and legal
matters with whom they choose.”
¶39 First, we agree with the District Court that the claims against the Commission are
barred as the Commission has immunity from litigation when exercising its functions. To
that end, M.C.U.P.L. Rule 10 provides:
In exercising its functions and powers, the commission, its members,
employees and all personnel through whom the commission functions shall
enjoy such judicial immunities as the Montana Supreme Court would enjoy
if performing the same functions.
14
¶40 The judicial immunities enjoyed by the Montana Supreme Court (and, pursuant to
M.C.U.P.L. Rule 10, by the Commission) are set forth in § 2-9-112, MCA,2 which
provides:
(1) The state and other governmental units are immune from suit for acts
or omissions of the judiciary.
(2) A member, officer, or agent of the judiciary is immune from suit for
damages arising from his lawful discharge of an official duty associated with
judicial actions of the court.
(3) The judiciary includes those courts established in accordance with Article
VII of the Constitution of the State of Montana.
¶41 Second, O’Neil provides no evidence to suggest that the Commission was
involved in writing the letters to U.S. West Dex or in representing to the CS&K Tribal
Court that O’Neil was not an attorney. Consequently, O’Neil’s claims against the
Commission for defamation and for tortious interference fail as a matter of law.
¶42 Third, O’Neil’s claims against the Bar for defamation and for tortious interference
and against both the Bar and the Commission for invasion of privacy also fail as a matter
of law. The reasons for this determination are set forth below.
Defamation
¶43 In its November 16, 2004 Order granting the Bar’s Motion for Summary
Judgment, the District Court determined that O’Neil’s claim of defamation against the
Bar failed as a matter of law because it was filed more than two years after the event
triggering the claim, namely, Brandborg’s November 15, 2000 letter to U.S. West Dex.
The District Court correctly cited § 27-2-204(3), MCA, which provides that “[t]he period
2
O’Neil raised no challenge to this statute.
15
prescribed for the commencement of an action for libel, slander, assault, battery, false
imprisonment, or seduction is within 2 years.” Here, O’Neil did not file his third-party
complaint against the Bar until November 19, 2002, two years and four days after the
November 15, 2000 letter.
¶44 O’Neil’s argument that his third-party complaint against the Bar was timely
because it was incorporated in his August 2, 2002 answer to the Commission’s petition, is
without merit. As we have already stated, the Bar and the Commission are two separate
entities. Consequently, the Bar did not become a party to these proceedings until O’Neil
filed his third-party complaint on November 19, 2002. M. R. Civ. P. 3 provides that “[a]
civil action is commenced by filing a complaint with the court.” Hence, the statute of
limitations on O’Neil’s defamation claim did not toll until the complaint was filed, four
days too late. This Court has held that neither ignorance of the law nor the need for time
to present a pro se case constitutes an adequate excuse to disregard a state of limitations.
Cf. In re Petition of Gray, 274 Mont. 1, 2, 908 P.2d 1352, 1352 (1995).
¶45 Accordingly, we hold that the District Court did not err in granting summary
judgment to the Bar on O’Neil’s defamation claim.
Tortious Interference
¶46 O’Neil contends that the Bar wrongfully interfered with his contract with “outside
jurisdictions and businesses” and injured his ability to earn an income. O’Neil also
argues that the District Court failed to consider Brandborg’s “false” notification to the
CS&K Tribal Court that O’Neil was not licensed to practice law before the Blackfeet
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Tribal Court and that the CS&K Tribal Court terminated O’Neil’s right to practice before
them because of Brandborg’s representations.
¶47 The Bar contends that in order to assert a prima facie claim of tortious
interference, O’Neil must show that it “intentionally committed a wrongful act without
justification or excuse.” Richland Nat. Bank & Trust v. Swenson, 249 Mont. 410, 419,
816 P.2d 1045, 1051 (1991). Hence, the Bar claims that O’Neil must show that the Bar’s
acts were: (1) intentional and willful; (2) calculated to cause damage to O’Neil in his
business; and (3) done with the unlawful purpose of causing damage or loss without
justifiable cause on their part. Pospisil v. First Nat. Bank of Lewistown, 2001 MT 286,
¶ 13, 307 Mont. 392, ¶ 13, 37 P.3d 704, ¶ 13.
¶48 Here, Brandborg’s letters to U.S. West Dex and representations to the CS&K
Tribal Court were not “wrongful” acts, nor were they committed “without justification or
excuse.” Brandborg and the Bar have a responsibility to tell the truth regarding the status
of those admitted or not admitted to practice law in this State. Moreover, Brandborg only
reported what the Blackfeet Tribal Court told her regarding O’Neil’s status with the
Tribe, that O’Neil is a lay advocate, not an attorney. As the Bar points out in its brief on
appeal, the social interests in protecting the freedom of action of the Bar to tell the truth
outweigh O’Neil’s claimed right to misrepresent his status as a licensed attorney to the
public. As stated in ¶ 31 of this Opinion, the mission of the Bar includes, among other
things, the obligation to foster high standards of integrity, learning, competence, public
17
service and conduct on the part of those who are engaged in the practice of law and,
concomitantly, to protect the public from those who do not meet their standards.
¶49 Accordingly, we hold that the District Court did not err in granting the Bar’s
Motion for Summary Judgment on this issue.
Privacy
¶50 O’Neil contends that the Bar and the Commission violated his, his customers’ and
his constituents’ rights to privacy as guaranteed by Article II, Section 10, of the Montana
Constitution, which provides: “The right of individual privacy is essential to the well-
being of a free society and shall not be infringed without the showing of a compelling
state interest.” O’Neil claims that the conduct of the Bar and the Commission “violates
his customers’ rights to individual privacy by interfering with their discussion and
disclosure of matters involving the preparation and strategy of their personal and legal
matters with whom they choose.”
¶51 The Bar and the Commission assert that O’Neil’s claim of protection for his
customers and his constituents fails as O’Neil has no standing to assert a violation of
another person’s right to privacy. O’Neil claims, on the other hand, that he has the same
standing to argue the privacy rights of his customers as the physicians in Armstrong v.
State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364, had to argue the privacy rights of
their patients. We disagree.
¶52 This Court did hold in Armstrong that healthcare providers have standing to assert
the individual privacy rights of their women patients to obtain a pre-viability abortion
18
from a healthcare provider of their choosing. We did so because of the closeness of the
relationship between the women patients and their healthcare providers. Armstrong,
¶¶ 9-13. We stated in Armstrong that “[a]side from the woman herself, therefore, the
physician is uniquely qualified to litigate the constitutionality of the State’s interference
with, or discrimination against, that decision.” Armstrong, ¶ 10.
¶53 Lost in O’Neil’s reliance on our decision, however, is a critical distinction
between his situation and the healthcare providers in Armstrong who we determined to
have representational standing to represent the individual privacy and autonomy interests
of their patients. Armstrong, ¶¶ 2-13. In that case, the physician assistants and the
physicians were all licensed by the State Board of Medical Examiners to perform the
medical procedures and to render the medical services implicated in the statutory scheme
that was at issue in that case. Armstrong, ¶¶ 1, 63-64. Thus, there was an intimate nexus
between the patients’ individual privacy and autonomy right to obtain a lawful medical
procedure from their chosen, licensed healthcare provider. The licensed healthcare
providers had as much an interest in protecting autonomy and individual privacy implicit
in the provider/patient relationship, as did the patients themselves because the State
licensing authority permitted this relationship to exist. Armstrong, ¶ 58.
¶54 This Court did not, however, hold in Armstrong that a patient has any individual
privacy right to obtain medical services from one not licensed by the State Board of
Medical Examiners to perform the services at issue. See Armstrong, ¶¶ 59-62.
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¶55 The point to be noted is that O’Neil is not licensed to practice law. See § 37-61-
201, MCA. He performs paralegal services. See § 37-60-101(12), MCA. O’Neil cannot
enter into an attorney/client relationship, because he is not an attorney. Whether O’Neil’s
customers reveal private personal and legal matters to him in his capacity as a paralegal is
beside the point. What is at issue here is O’Neil practicing law when he is not licensed to
do so. His customers have no privacy right in seeking from O’Neil legal services which
he is not licensed to perform. And, O’Neil has no representational standing to assert on
behalf of his customers a privacy right that, by law, does not exist.
¶56 The Bar and the Commission also argue that there is no private right of action
against a non-governmental entity. They maintain that the privacy section of the
Montana Constitution contemplates privacy invasion by state action only. On the
contrary, we stated in Armstrong that
Article II, Section 10 of the Montana Constitution was intended by the
delegates to protect citizens from illegal private action and from legislation
and governmental practices that interfere with the autonomy of each
individual to make decisions in matters generally considered private.
Armstrong, ¶ 35 (emphasis added).
¶57 Finally, we also hold that O’Neil’s own right to privacy has not been violated in
this case. O’Neil’s advertisements in the Yellow Pages imply that he is a member of the
Bar. The Bar’s clarification of his lay status in conversations with the Tribes and
correspondence with U.S. West Dex does not fall into the category of intruding into
O’Neil’s “private activities.” No person has a privacy interest to misrepresent himself to
20
the public as a licensed professional when he is not. Indeed, it is O’Neil’s activities that
he advertises to the public that are in question.
¶58 Accordingly, we hold that the District Court did not err in granting the Bar’s and
the Commission’s Motions for Summary Judgment on this issue.
Issue 3.
¶59 Whether the District Court abused its discretion in denying O’Neil a jury trial.
¶60 O’Neil maintains that the Commission sought a finding of criminal contempt
against him and that he was under a threat of jail time as a result of the injunction.
Consequently, he contends that he was entitled to a jury trial and that the District Court
deprived him of his right to due process by not granting him one.
¶61 O’Neil further contends that the District Court’s Order should be vacated because
it violates the mandates of Huffine v. Montana Sixth Jud. Dist. Court, 285 Mont. 104,
110, 945 P.2d 927, 931 (1997), in that “[p]rosecution for criminal contempt must be
carried out pursuant to the procedures set forth in Title 46, MCA, to ensure that criminal
penalties are not imposed on someone who has not been afforded the proper protections.”
¶62 O’Neil’s contentions are without merit and his reliance on Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428 (2002), and United States v. Gaudin, 515 U.S. 506, 115 S. Ct.
2310 (1995), regarding an individual’s right to a jury trial in a criminal proceeding, is
misplaced. The Commission’s requested relief was for an injunction and a finding of
civil contempt against O’Neil for engaging in the unauthorized practice of law, not
criminal contempt.
21
¶63 The United States Supreme Court has determined that contempt proceedings are
sui generis.
While contempt may be an offense against the law and subject to
appropriate punishment, certain it is that since the foundation of our
government proceedings to punish such offenses have been regarded as sui
generis and not “criminal prosecutions” within the Sixth Amendment or
common understanding.
Myers v. United States, 264 U.S. 95, 104-05, 44 S. Ct. 272, 273 (1924). Moreover,
contempt proceedings are within the inherent power of all courts to enforce obedience,
and this ability is something the courts must possess to properly perform their functions.
Myers, 264 U.S. at 103, 44 S.Ct. at 273.
¶64 In Montana, M.C.U.P.L. Rule 8(b) authorizes the Commission’s request for a
finding of civil contempt:
(1) A civil contempt proceeding for unauthorized practice of law, as
provided by § 37-61-210, MCA, or other applicable statute or law, shall be
prosecuted in the manner provided by § 3-1-501, et seq., MCA.
(2) The procedure and punishment for a civil contempt shall be provided
by § 3-1-501, et seq., MCA.
(3) Nothing set forth herein shall be construed to prohibit or limit the right
of the district court to issue a permanent injunction in liew [sic] of or in
addition to any punishment imposed for a civil contempt.
¶65 A person before a court charged with contempt is entitled to due process. The
nature of the due process to be afforded is codified at § 3-1-518, MCA, which provides:
Hearing on contempt not committed in immediate view and
presence of court or judge at chambers. (1) When a person arrested for a
contempt not committed in the immediate view and presence of the court or
judge at chambers has been brought up or appeared, the court or judge shall
proceed to investigate the charge, shall schedule and hold a hearing on any
answer that the person arrested may make to the charge, and may examine
witnesses for or against the person, for which an adjournment may be had
22
from time to time, if necessary. The judge investigating the charge and
scheduling and presiding over the hearing may not be the judge against
whom the contempt was allegedly committed, except that if the contempt
arose from the violation of an order of the court issued after a hearing on
the merits of the subject of the order, the judge who issued the order may
punish the contempt or compel compliance with the order unless it is shown
that the judge would not be impartial in addressing the contempt.
(2) The charged person must be given a reasonable opportunity to
obtain counsel and prepare a defense or explanation prior to the hearing.
The charged person may testify and call witnesses at the hearing.
[Emphasis added.]
¶66 In Kaufman v. 21st Judicial Dist. Court, 1998 MT 239, ¶ 33, 291 Mont. 122, ¶ 33,
966 P.2d 715, ¶ 33, we delineated the measure of due process to be afforded in contempt
cases:
In cases in which it is not necessary for a court to take instant action,
however, a contemnor is entitled to full due process. This includes a
hearing before a neutral judge, during which the contemnor is advised of
the charges against him or her, has a reasonable opportunity to meet them
by way of defense or explanation, has the right to be represented by
counsel, has a chance to testify and call other witnesses on his behalf, and,
in instances in which criminal punishment is a consequence, a finding of
guilt beyond a reasonable doubt.
¶67 Furthermore, even if this were a criminal contempt proceeding, there is no general
federal constitutional right to a trial by jury with respect to criminal contempt
proceedings in federal or state courts. Bessette v. W.B. Conkey Co., 194 U.S. 324, 336-
37, 24 S. Ct. 665, 670 (1904); Muniz v. Hoffman, 422 U.S. 454, 95 S. Ct. 2178 (1975);
International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552
(1994). In criminal contempt cases imposing serious contempt penalties, there might be a
right to a jury trial, see Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968),
however, the term “serious” has not been fully defined. In Muniz, a fine of $10,000
23
imposed on a union was insufficient to be considered serious enough to trigger the right
to trial by jury. Muniz, 422 U.S. at 477, 95 S.Ct. at 2190-91. The Supreme Court also
suggested in International Union that imprisonment for a period of six months or less
was not a serious penalty. International Union, 512 U.S. at 826-27, 114 S.Ct. at 2557.
¶68 Section 37-61-210, MCA, provides that if a person practices law in any court
(except a justice’s court or a city court), without being licensed as an attorney, then that
person is guilty of contempt of court. The law does not require any particular penalty be
imposed. In addition, § 3-1-511, MCA, provides that contempt committed in the
presence of the court allows a penalty of a fine not to exceed $500 or imprisonment for a
term not to exceed 30 days, or both. Section 3-1-520, MCA, provides that contempt to
compel performance allows a penalty of a fine not to exceed $500 and/or confinement
until the contemnor has performed the act. None of these sanctions rise to the level of a
“serious” penalty as provided under federal law, and O’Neil advances no argument
supporting a different definition of “serious” under State law.
¶69 O’Neil is entitled to due process under § 3-1-518(2), MCA, but the potential
penalty in this action did not rise to a level that might require a jury trial. O’Neil was not
charged with criminal contempt under § 45-7-309, MCA, and the Commission did not
ask for confinement or a fine. Consequently, O’Neil was afforded all the process due
him including a reasonable opportunity to obtain counsel and to prepare a defense or
explanation prior to the hearing, as well as the opportunity to testify in his own behalf
24
and to call witnesses at the hearing. On the facts of this case, O’Neil is not entitled to a
higher standard of due process which might include a jury trial.
¶70 Accordingly, we hold that the District Court properly ruled that the contempt
proceeding against O’Neil could be tried without a jury.
Issue 4.
¶71 Whether §§ 37-61-201 and -210, MCA, are constitutional as applied by the
District Court.
¶72 O’Neil contends that the Montana Constitution does not give the Supreme Court
any rule-making authority over those outside of a court setting. On the contrary, in State
v. Merchants’ Credit Service, 104 Mont. 76, 94, 66 P.2d 337, 339 (1937), overruled on
other grounds by Rae v. Cameron, 112 Mont. 159, 114 P.2d 1060 (1941), this Court
stated:
The first question for determination is whether this court has
jurisdiction to punish for contempt, if the acts complained of constitute
unlawful practice of law. This court is by statute given the exclusive power
to confer upon any persons the right to practice law and to deprive them of
that right. If any person shall engage in the practice of law without being
authorized so to do, even though that practice is not done directly in this
court, it has the right to punish for contempt. [Internal citations omitted
and emphasis added.]
Furthermore, “[p]ursuant to the provisions of Article VII, Section 2, of the Constitution
of the State of Montana, the Montana Supreme Court has inherent jurisdiction to prohibit
the unauthorized practice of law.” M.C.U.P.L. Rule 1(b).
¶73 As the Bar and the Commission point out in their brief on appeal, the primary
reason for prohibiting the unauthorized practice of law is to protect the public from being
25
advised and represented by unqualified persons not subject to professional regulation. In
a case decided more than 90 years ago, this Court stated:
When we consider the relationship of attorney and client and its
consequences to the client, as well as to his possible adversary, it becomes
manifest that insistence upon due authorization of the persons acting as
attorneys is of vital importance. . . . The people have a right to presume
that the law in this respect is being enforced; if it is not enforced, such
persons as intrust their business to an unchallenged pretender are permitted,
in matters of life, of liberty and of property, to lean upon a broken reed.
In re Bailey, 50 Mont. 365, 369, 146 P. 1101, 1103 (1915). We also recognized in Bailey
that “it is universally held that the practice of law is not an inherent right but a privilege,
subject entirely to state control.” Bailey, 50 Mont. at 369, 146 P. at 1103 (emphasis
added).
¶74 O’Neil also contends that §§ 37-61-201 and -210, MCA, are too overbroad and
vague to impose any restrictions on his liberty and are insufficient to support the court’s
finding of “criminal” contempt and entry of an injunction against him. The Bar and the
Commission point out that while O’Neil did not brief the constitutionality of these
statutes at the District Court level and the District Court did not address that issue, the
constitutionality of these statutes was implicitly raised throughout the trial and in
O’Neil’s brief on appeal and thus merit this Court’s review. We agree.
¶75 In spite of O’Neil’s contentions to the contrary, the Legislature (and not the
Supreme Court) enacted the statutes on unauthorized practice that O’Neil claims to be
unconstitutional. These statues provide:
26
Who considered to be practicing law. Any person who shall hold
himself out or advertise as an attorney or counselor at law or who shall
appear in any court of record or before a judicial body, referee,
commissioner, or other officer appointed to determine any question of law
or fact by a court or who shall engage in the business and duties and
perform such acts, matters, and things as are usually done or performed by
an attorney at law in the practice of his profession for the purposes of parts
1 through 3 of this chapter shall be deemed practicing law.
Section 37-61-201, MCA.
Penalty for practicing without license. If any person practices law
in any court, except a justice’s court or a city court, without having received
a license as attorney and counselor, he is guilty of a contempt of court.
Section 37-61-210, MCA.
¶76 O’Neil incorrectly frames his freedom of speech challenge to these statutes as an
overbreadth challenge. However, the overbreadth doctrine enables plaintiffs to challenge
a statute, not because their own rights of free expression are violated, “but because of a
judicial prediction or assumption that the statute’s very existence may cause others not
before the court to refrain from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 2916 (1973).
¶77 The overbreadth doctrine
is an exception to the general rule that statutes are evaluated in light of the
situation and facts before the court. A statute which can be applied to
constitutionally protected speech and expression may be found to be invalid
in its entirety, even if it could validly apply to the situation before the court.
However, a statute cannot be challenged just because it might result in an
unconstitutional abridgment of speech in a hypothetical case. Rather, the
unconstitutional overbreadth must be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep.
27
State v. Allum, 2005 MT 150, ¶ 29, 327 Mont. 363, ¶ 29, 114 P.3d 233, ¶ 29 (internal
citations and quotation marks omitted).
¶78 Here, O’Neil claims that there is a direct constitutional injury to his personal “First
Amendment rights of freedom of speech, expression, association, petition and privacy” as
a result of a specific application of the unauthorized practice statutes to his conduct.
O’Neil fails to show, however, that the impact of the statutes on the conduct of other
speakers will differ from its impact on his conduct, hence his case is not susceptible to a
facial overbreadth challenge based on hypothetical applications of the law not before this
Court. See Hill v. Colorado, 530 U.S. 703, 731-32, 120 S. Ct. 2480, 2497-98 (2000). “To
the extent that the statute may reach constitutionally protected expression,” any potential
constitutional infirmities not implicated by O’Neil’s case could “be cured through case-
by-case analysis of the fact situations where the statute is assertedly being applied
unconstitutionally.” State v. Lilburn, 265 Mont. 258, 270, 875 P.2d 1036, 1044 (1994),
cert. denied, 513 U.S. 1078, 115 S. Ct. 726 (1995).
¶79 The central question O’Neil’s freedom of speech challenge poses is whether the
District Court’s injunction that O’Neil may not engage in the practice of law, as defined
by § 37-61-201, MCA, and further specified by the injunction’s terms, unconstitutionally
restricts O’Neil from engaging in conduct protected by the First Amendment and
Article II, Section 7, of the Montana Constitution. The United States Supreme Court has
responded to this question by holding that regulation of the bar “is a subject only
marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass’n,
28
436 U.S. 447, 459, 98 S. Ct. 1912, 1920 (1978). Other courts have repeatedly rejected
claims “that an individual has a First Amendment right to practice law in any way of his
choosing, free even of rationally-based regulation,” because such a “broadly formulated
First Amendment argument here would, if successful, greatly undermine the power of
states to regulate bar membership, when this power has been repeatedly recognized and
upheld by the courts.” Russell v. Hug, 275 F.3d 812, 823 (9th Cir. 2002).
¶80 Just as O’Neil has no First Amendment right to practice law without a license, his
customers have no First Amendment right to unlicensed legal representation. The
Supreme Court has recognized a First Amendment right to receive legal advice, but that
right is limited to clients of duly qualified attorneys consistent with “the State’s interest in
high standards of legal ethics.” United Mine Workers v. Illinois State Bar Ass’n, 389
U.S. 217, 225, 88 S. Ct. 353, 357 (1967). The unauthorized practice statutes are narrowly
tailored to target only the provision of legal services in Montana by individuals who have
not proven through examination and admission to the bar that they “are qualified and
possess a familiarity with [Montana] law.” Mothershed v. Justices of Supreme Court,
410 F.3d 602, 611-12 (9th Cir. 2005). There remain ample alternative channels for
providing legal services to O’Neil’s customers—the thousands of licensed attorneys in
Montana.
¶81 O’Neil also contends that the unauthorized practice statutes are unconstitutionally
vague because they fail to define what constitutes the practice of law. “A statute is void
for vagueness on its face if it fails to give a person of ordinary intelligence fair notice that
29
the statute does not permit his contemplated conduct.” Yurczyk v. Yellowstone County,
2004 MT 3, ¶ 33, 319 Mont. 169, ¶ 33, 83 P.3d 266, ¶ 34 3 (citing State v. Martel, 273
Mont. 143, 150, 902 P.2d 14, 18 (1995)).
¶82 This Court has long defined the practice of law to include legal services whose
product touches legal matters not immediately at issue in court:
A person who makes it his business to act and who does act for and by the
warrant of others in legal formalities, negotiations or proceedings, practices
law; and when his acts consist in advising clients touching legal matters
pending or to be brought before a court of record, or in preparing pleadings
or proceedings for use in a court of record, or in appearing before a court of
record, either directly or by a partner or proxy, he is practicing law in a
court of record.
Bailey, 50 Mont. at 367-68, 146 P. at 1002 (internal citations omitted). Here, §§ 37-61-
201 and -210, MCA, provide fair notice of the prohibited conduct.
¶83 Accordingly, we hold that §§ 37-61-201 and -210, MCA, are constitutional as
applied by the District Court.
Issue 5.
¶84 Whether the District Court erred in finding that O’Neil engaged in the
unauthorized practice of law.
¶85 O’Neil argues that the injunction is “neither precise nor comprehensible to a
reasonable person” and that the phrase “things usually done or performed by an attorney
at law in the practice of his profession” is “vague rather than precise, subjective rather
3
The paragraph numbers in the Pacific Reporter differ from the paragraph numbers in the
Montana Reports because Pacific Reporter numbered two consecutive paragraphs the
same.
30
than objective, and utterly insufficient to support an injunction, much less the threat of
criminal contempt for the violation of that injunction.”
¶86 In its written judgment filed January 10, 2005, the District Court listed the
following as indicia of the practice of law:
a. The giving of advice or counsel to others as to their legal rights or
responsibilities or the legal rights or responsibility of others.
b. Selecting, drafting and completing legal papers, pleadings,
agreements and other documents which affect the legal rights or
responsibilities of others.
c. Appearing, or attempting to appear, as a legal representative or
advocate for others in a court or tribunal of this state.
d. Negotiating the legal rights or responsibilities of others.
e. Holding one’s self out or advertising one’s self as an attorney
admitted to practice law in Montana; or, holding one’s self out as a
non-attorney entitled to practice law in Montana; or otherwise
advertising services in a manner that would reasonably mislead the
public to believe that one is an attorney, or otherwise licensed or
certified legal advocate in the courts of the State of Montana.
Contrary to O’Neil’s contentions, these indicia are precise, comprehensible to a
reasonable person and sufficient to prevent a person of common intelligence from having
to guess at their meaning.
¶87 O’Neil’s conduct of drafting pleadings for his customers, providing them with
legal advice and appearing in court with his customers, unquestionably constitutes
“practicing law” under § 37-61-201, MCA. And, O’Neil readily admits that he has done
so without having received a license to practice law under § 37-61-210, MCA.
¶88 Accordingly, we hold that the District Court did not err in finding that O’Neil
engaged in the unauthorized practice of law.
31
¶89 O’Neil also claims that we should give full faith and credit to the acts of the Tribes
as we would the acts of any other state or federal government. On that basis, he argues
that because he is an attorney licensed to practice in the Blackfeet Tribal Court, we
should allow him to practice law in our State courts. First, as already noted in this
Opinion, O’Neil is not an attorney with the Blackfeet Tribal Court, he is a lay advocate.
Second, absent a statutory requirement to the contrary, the doctrine of full faith and credit
does not apply here. The Tribe is a sovereign nation and can license whomever it wants
before its courts. There is no requirement that full faith and credit be given to that
decision as regards the practice of law in Montana’s State courts.
¶90 O’Neil further claims that he should be admitted to practice before Montana’s
state courts pro hac vice. However, Montana’s rules on pro hac vice admission require
admission in “the highest court of another state.” Rules for Admission to the Bar of
Montana § 4 (2005). O’Neil is not an attorney and he is not from out of state. We do not
perfunctorily admit attorneys to practice pro hac vice from out of state; there is an entire
process they must go through, not the least of which is that they must be admitted to the
practice of law in another state by that state’s highest court.
¶91 Affirmed.
/S/ JAMES C. NELSON
32
We concur:
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
33