Matter of Morin, An Attorney

03/31/2020
IN THE SUPREME COURT OF 'FFIE STATE OF MONTANA
Case Number: PR 19-0017
PR 19-0017 FILED
MAR 3 1 2020
Bowen Greenwood
Clerk of Supreme Court
State of Montana
IN THE MATTER OF TINA L. MORIN,
ORDER
An Attorney at Law, 0F
DISCIPLINE
Respondent.
On January 11,2019,a formal disciplinary complaint was filed in this matter against
Montana attorney Tina L. Morin. The disciplinary complaint may be reviewed by any
interested person in the office ofthe Clerk of this Court.
The Commission on Practice (Commission) held a hearing on the complaint on
January 9 and 10, 2020. Both the Office of Disciplinary Counsel(ODC)and Morin, who
represented herself during the proceedings, presented argument and questioned witnesses.
On February 5, 2020, the Commission submitted to this Court its Findings of Fact,
Conclusions ofLaw,and Recommendation for discipline. Morin then filed objections, and
ODC filed a reply.
FACTUAL AND PROCEDURAL BACKGROUND
This complaint arose from Morin's representation ofRobert and Holly Labair in their
pursuit of a legal rnalpractice claim against attomey Steve Carey. The Labairs retained
Carey to represent them in pursuing a medical malpractice claim after their infant son died.
The Fourth Judicial District Court dismissed the Labairs' lawsuit as time-barred in
May 2008.
In October 2008,the Labairs retained Morin to represent thern in a legal malpractice
claim against Carey. After the Labairs filed a complaint against Carey in District Court, he
admitted he owed a duty of care to the Labairs and had breached the standard of care by
missing the statute oflimitations. He maintained,however,that his breach did not cause the
Labairs any injuries or damages. The District Court agreed with Carey and granted summary
judgment in his favor. The Labairs,represented by Morin,successfully appealed that ruling;
we held that the evidence was sufficient to withstand summary judgment. Labair v. Carey,
2012 MT 312, 367 Mont. 453, 291 P.3d 1160.
In the spring of 2013, Morin retained another attorney, Paul Warren, to assist her in
preparing the Labairs' case for trial. Morin and Warren reached an agreement for splitting
fees and costs. Warren never entered into a written agreement with the Labairs directly.
In March 2015, the District Court conducted a six-day jury trial. Warren presented
the majority ofthe Labairs' case. Morin examined Charity Rowsey, a forensic accounting
specialist who testified about the value ofthe Labairs' medical malpractice claim. Rowsey's
testimony forms the basis ofone ofthe counts ofmisconduct ODC has charged in the present
matter. Morin questioned Rowsey as to whether she knew if Carey had consulted with an
economic loss expert when he represented the Labairs. Rowsey responded that she
understood Carey had consulted Joe Kasperick, an expert in that field. On
cross-examination, Rowsey testified that the basis for her belief that Carey had contacted
Kasperick was because Morin had informed her he had. The defense later put Kasperick on
the stand as a rebuttal witness and Kasperick denied consulting with Carey on the case.
Kasperick further testified that prior to trial, he had informed Morin that he had not done any
work for Carey on this case. The jury ultimately returned a defense verdict.
Sometime after the trial, Carey, through his attorney Mikel Moore, sought and was
granted sanctions against Morin for the time and expenses incurred by the defense in
obtaining Kasperick's rebuttal of Rowsey's testimony.
Atthe disciplinary hearing, Moore testified that Rowsey's inaccurate testimony gave
the jury the impression that Carey had lied when he testified that he did not reach the
economic part of the Labairs' case. Morin claimed that she was not aware that Rowsey's
testimony was false and she does not believe it was false. She asserted the Labairs informed
her that Carey had intended to consult an economic expert when he represented them. She
offered into evidence a September 15, 2015 affidavit signed by Robert Labair in which he
2
attested, in part,"That [Carey] told us he was getting a lost earning capacity expert, but he
never did." Robert's affidavit also attested,"That[Carey]specifically said he was talking to
an economic loss expert that he had used in the past and that was very good but super
expensive." And the affidavit further attested, "That based on [Carey's] other lies about
what he did and did not do (filing our complaint, getting experts) it is possible that[Carey]
did not contact a lost earnings expert. That does not change the truth that[Carey]told me he
did contact someone." Morin further testified that she was nonetheless surprised that
Rowsey testified that she knew Carey had contacted an economic loss expert because Morin
had only informed her that Carey had contacted an economic loss expert and that Morin
knew from experience that Carey normally used Kasperick. She stated: •
In the moment I said, "Okay. What do you know?" And her answer was,
"It is my understanding that he contacted," and then ultimately it became
Joe Kasperick. And at that moment I knew that she was talking about what I
had told her, but it really doesn't matter where she got her information as long
as it's true information; and in this case, it was our belief and understanding
that it was true, and to this day,I still believe that it was true.
At the disciplinary hearing,Robert denied he ever told Morin that Carey contacted an
economic loss expert; rather, he told Morin that Carey had told the Labairs that he believed
he would eventually have to do so. Robert was adamant that Carey never told him the name
ofthe expert and that he never offered a name to Morin.
After the Labairs lost at trial, they appealed to this Court, arguing the trial court erred
in instructing the jury. Morin represented the Labairs on appeal; unbeknownst to the
Labairs, however,she hired a contract attorney to write the appellate briefs and she taxed this
cost to the Labairs. On appeal, this Court held that the trial court erred in its instructions to
the jury. It remanded the matter on the issue ofdamages for the Labairs' lost opportunity to
settle. Labair v. Carey, 2016 MT 272, 385 Mont. 233, 383 P.3d 226.
In late 2017, as the case moved toward trial on the damages issue, the parties agreed
to attempt settlement. The parties previously had participated in three unsuccessful
mediations. Robert testified that as the date for the fourth mediation approached,the Labairs
became increasingly apprehensive about Morin's ability to settle the case. He believed the
3
poor relationship Morin had created with opposing counsel had hindered
negotiations:"We seemed to do a lot of fighting, a lot of arguing, and bickering back and
forth, and name calling, and finger pointing. And nothing ever seemed to get resolved to go
forward."
Morin's relationship with other counsel forms the basis of another charge in this
disciplinary matter. ODC charged Morin with misconduct for communications with counsel
that ODC characterized as abusive, unprofessional, and uncivil.
Moore agreed that the relationship between opposing counsel was contentious. He
stated that Morin's personal attacks against him and his client were "completely outside my
experience as a practicing attorney. Moore testified that Morin did not merely use invective
as a trial tactic, but used abusive language in her private communications as well. She called
Carey a liar and insinuated he was an evil person. She also accused him of intentionally
ensuring the Labairs' medical malpractice claim failed. .Moore further alleged that Morin
asked inappropriate questions, made inappropriate comments on the record, and engaged in
"outright visceral hostility" with opposing counsel during depositions. He also testified that
Morin continuously, and baselessly, filed briefs that threatened him with Rule 11 sanctions
until Moore complained to Warren, who made a filing in the District Court to formally
withdraw Morin's accusations. Moore alleged that Morin baselessly accused him ofethical
violations, demanded that he report himselfto ODC,and accused him ofnegligence. Moore
reached a point where he would communicate with Morin only in writing. He explained that
Morin's tendency to use abusive language prevented the Labairs' case from moving forward
because it was impossible for him to have productive conversations with Morin.
While Morin represented the Labairs in the legal malpractice case, the Labairs also
used another attorney, Cory Gangle,for unrelated business and real estate matters. Because
Robert was increasingly concerned about Morin's professionalism, and specifically her
behavior toward other attorneys, he began tiying to engage Gangle in discussions about the
malpractice case. Robert testified that Morin was often "aggressive and engaged in
bullying behavior. For example, during Robert's deposition, it was his impression that
Morin behaved aggressively toward the attorney who deposed him. Robert recalled that
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Morin did not merely object to questions but called the other attorney names and engaged in
an argument that was personal in nature. He further testified that Morin was also
confrontational with Warren, her co-counsel.
In spite ofRobert's entreaties, Gangle refized to comment on Morin's performance.
Gangle testified he initially resisted the Labairs' requests for him to become involved in the
legal malpractice case. However,he agreed to participate when he learned a mediation was
imminent because he believed he could act as a buffer between Morin and the defense to
help settle the case. Robert testified that Morin was adamantly opposed to Gangle's
participation and she was "very aggressive with Gangle. Gangle testified that Morin sent
him "nasty" e-mails that convinced him her actions were counterproductive to the Labairs'
interests.
At the disciplinary hearing, Morin conceded that she used "crude and "crass"
language in communicating with Moore, Gangle, and other attorneys involved in the
Labairs' litigation. She acknowledged that the language she used in cdmmunicating with
Moore was "exceedingly harsh" and "very strong." However, she alleged her use ofsuch
language wasjustified because she disagreed with the conduct ofthe other attorneys.
Morin's alleged failure to timely communicate her expenses to the Labairs and to
charge unreasonable expenses to the Labairs forms the third misconduct violation charged by
ODC. Prior to the mediation, Gangle learned that Morin had never provided the Labairs
with an accounting ofthe costs they had incurred in the litigation. He advised the Labairs to
obtain an up-to-date accounting from Morin because they needed that information to make
an informed decision about settlement. In December 2017,Holly Labair e-mailed Morin and
requested "a copy ofthe expens6s we have currently so we know where we sit." Morin did
not send an accounting and on January 23, 2018, one of the Labairs e-mailed Morin and
asked for "a ball park of what [our] expenses are before this mediation." On
January 25, 2018,the day before the mediation, Morin e-mailed two invoices to Holly, one
for $17,950.68 and one for $17,839.68, for a total of$35,790.36.
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On January 26,2018,the parties convened a mediation at Gangle's office in Missoula.
Both Gangle and Morin participated on behalfofthe Labairs, and the parties settled the case
that day.
In March 2018, Morin provided the Labairs with a disbursement statement for the
settlement. The statement listed three additional cost invoices for $23,433.16,$5,337.32,and
$16,477.92. Added to the two invoices that Morin provided before the settlement
conference,the costs taxed to the Labairs totaled $81,038.76. The Labairs contacted Gangle
about the disbursement statement. Prior to receiving the statement, they were not aware
Morin was claiming any costs in addition to the $35,790.36 she had previously invoiced.
Furthermore,Morin had never provided receipts for any ofthe items invoiced and there were
several large expenditures of which the Labairs had been previously unaware, including
out-of-state travel and use ofa contract attorney to write an appellate brief.
At the disciplinary hearing, Morin acknowledged she had not provided the Labairs
with an accounting ofcosts prior to sending them two invoices on January 25,2018,and an
additional three invoices in March 2018. Although Robert denied that Morin communicated
any cost amounts to the Labairs prior to the two invoices on January 25,2018,Morin claimed
that shortly before then, she met with the Labairs and orally informed them that their costs
were approximately $80,000. She further claimed that she did not provide the two invoices
on January 25 for the purpose ofinforming the Labairs about the amount oftheir costs, but
because the Labairs wanted to compare those specific costs against Warren's cost invoices to
ensure that they were not double-billed for some costs.
After the Labairs received the disbursement statement, Gangle entered a limited
appearance in the District Court on their behalf to challenge the $45,248.40 in additional
costs Morin had claimed. Morin sent Gangle e-mails and letters that he considered
"extremely vile." Among those communications was a letter Morin sent on May 17,2018,in
which she objected to Gangle's involvement with the Labairs' challenge of her costs. She
stated, in part:
Your latest filing before Judge McLean is a violation ofour professional rule
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prohibiting leveraging, harassment and attempts to unduly influence the Court.
It reeks ofsexism. Your beliefthat you have a right to bully a female attorney
looks a lot like Donald Trump's belief that he can sexually assault us and we
will like it. You do not have the balls to do this to a male attorney and your
attempt to shake me down is pure cowardice shown in the fact that you did not
go get your own good case and work it yourself. You did not have the balls to
spend ten years and over $100,000 in costs or to go up against the good old
boys' club.
After an evidentiary hearing in May 2018, the District Court awarded Morin the
previously invoiced costs of$35,790.36 and disallowed the additional $45,248.40 in costs
she had invoiced with the disbursement statement. Morin appealed this decision, and this
Court affirmed. Labair v. Carey,2019 MT 66N,395 Mont.524,436 P.3d 722.
DISCIPLINARY PROCEEDINGS
On January 11,2019,ODC filed its Complaint with the Commission,charging Morin
with three counts ofprofessional misconduct for her actions while representing the Labairs.
It alleged Morin violated: Rules 3.3(a), 3.4(b), 3.4(c), 8.4(c), and 8.4(d) of the Montana
Rules ofProfessional Conduct by eliciting false testimony from Rowsey during thejury trial;
Rules L4 and 1.5(a) by failing to fimely communicate her expenses to the Labairs and for
charging unreasonable expenses to the Labairs; and Rules 1.1, 1.3, and 3.1(a)for engaging in
abusive, unprofessional, and uncivil conduct toward other counsel during her representation
of the Labairs.
On September 10,2019,Morin filed a motion to recuse Ward Taleff,the Commission
Chairman,from this matter.' She alleged Taleffwas biased against her because in an earlier
disciplinary matter, she received a private admonition from the Commission that Taleff
wrongly reported as a public admonition to this Court and to the Federal District Court. She
further alleged that she was "gaslif' when she attempted to correct Taleffs representation
Morin also moved to vacate the scheduling order and hearing date in this matter,essentially arguing
that the matter should be dismissed. She later raised these arguments in a petition for writ of
supervisory control, which this Court denied. Morin v. Commission on Practice,No. OP 20-0007,
Order(Mont. Jan. 6, 2020).
7
that her admonition was private.2 Morin claimed that her attempts to expose the
Commission's alleged misrepresentation of the nature of her admonition made it
unreasonable to expect Taleff to remain neutral toward her. Morin further claimed that
Taleffwas biased against her because she had filed an affidavit as an expert witness in a prior
matter in which she objected to Taleffsuggesting that another attorney suffered from mental
illness.3 The Commission denied Morin's motion, concluding that Morin had indeed
received a public admonition in the earlier matter in spite of her continued insistence, in the
face of an indisputable record to the contrary, that the admonition had been private. The
Commission concluded further that the affidavit Morin submitted in another attorney's
disciplinary matter did not prove that Taleff was now biased against her. The Commission
found po basis for Taleff to recuse himselffrom the present matter.
After hearing this disciplinary matter, the Commission made extensive, detailed
findings regarding the circumstances by which Rowsey came to testify about Kasperick's
alleged involvement, ultimately finding that Morin knew at the time she elicited Rowsey's
testimony that her representation to Rowsey that Carey had consulted with Kasperick in this
matter was misleading and false. The Commission found that Morin improperly had "[fed] a
2 Morin has frequently described the actions ofODC and the Commission as attempts to "gaslight"
her. "Gaslightine is a form ofmanipulation that seeks to sow seeds ofdoubt in a targeted individual
with the aim ofmaking the individual question his or her own memory,perception, and sanity. The
term comes from a 1944 movie by the same name,in which a husband tries to drive his wife insane
by changing minor details about their house,including the brightness ofthe gas lights, and insisting
that they have always been that way. Negar Katerai, Retraumatized in Court,62 Ariz. L. Rev. 81,
110 n. 134(2020), citing Gaslight(Metro-Goldwyn-Mayer 1944).
3 Morin and Montana attorney Genet McCann were both subject to discipline for their actions
involving the legal representation ofan incapacitated person. Morin filed an affidavit in support of
McCann,attesting that McCann was ofsound mind with no mental issues,that Taleffhad questioned
McCann's mental soundness without basis, and that Morin believed Taleffs questioning of
McCann's mental health was sexist. Notwithstanding Morin's affidavit, this Court accepted and
adopted the Commission's recommendation, suspending McCann from the practice of law for a
period of not less than seven months. In the Matter of Genet McCann, No. PR 17-0670, Order
(Mont. June 5, 2018). Eight months later, we accepted the Commission's recommendation and
suspended Morin for a period of not less than seven months for her conduct in the matter.
In the Matter ofTina L. Morin, No.PR 17-0448, Order(Mont. Feb.27,2019),reh'g den. Mar. 26,
8
potential witness false information and then put[that witness] on the stand to solicit that
false
information." It found "self-serving and not credible Morin's explanation that she
had not
done that.
The Commission found further that Morin "engaged in abusive, unprofessional,and
uncivil conduct toward other counsel" and in "bullying and intimidating tactics that are
unbecoming a Montana lawyer," with an intention "to harass, annoy,or gain leverage in the
litigation." It found she rnade"numerous unprofessional, outrageous,profane,paranoid and
unfounded allegations against Gangle, Carey and Moore." It provided excerpts from nine
different letters or e-mails Morin sent to various individuals in which she made inflammatory
statements, for example calling Gangle an "arrogant sexist man" with a "fragile ege who
"strut[s] around like some peacock in the barnyard, pissing on all the fence posts to make
sure everyone believed you were the top doe and "the definition ofa shark and a slime that
comes out from underneath the rocks."
Regarding the Labairs' costs, the Commission found Morin informed the Labairs
about only approximately $36,000 in claimed costs prior to the final mediation, and the
Labairs first learned Morin was claiming an additional $45,000 in costs when they received
the disbursement statement. The Commission found no clear and convincing evidence that
Morin had fabricated any costs. However,it found Morin failed in her obligation to inform
the Labairs as to the costs incurred prior to the fmal mediation. The Commission further
found that some ofthe costs Morin taxed to the Labairs were unreasonable, specifically for
her use of a legal research consultant and the costs of a contract attorney who drafted
appellate briefs, which it concluded should have come out of Morin's contingent fee. The
Commission found that the Labairs did not consent to either of these expenses.
Based on these and other findings, the Commission concluded that Morin violated
M.R. Pro. Cond. 3.3(a)(3), 3.4(b), 3.4(c), and 8.4(c) for misconduct regarding Rowsey's
testimony about Kasperick. It further concluded that she violated M.R.Pro. Cond. 1.4(a)(1),
1.4(a)(4), and 1.4(b)by failing promptly to inform the Labairs about their incun•ed costs, and
2019.
9
M. R. Pro. Cond. 1.5(a) for unreasonably charging the Labairs with the costs of a legal
research consultant and a brief writer. Finally, the Commission concluded that although
ODC had proven its allegation regarding Morin's abusive, uncivil, and unprofessional
conduct toward other attomeys, that such conduct was not a basis for discipline under
M.R.Pro. Cond. 1.1, 1.3, and 3.1(a) as charged by ODC. Relying on In re Best,
2010 MT 59, 355 Mont. 365, 229 P.3d 1201, the Commission determined that it would
exceed its authority if it charged Morin with violation of a rule other than that charged by
ODC.
The Commission recommended Morin be disbarred from the practice of law and
assessed the cost ofthese proceedings. The Commission found Morin's conduct, including
her conduct during the disciplinary hearing, "serious and disturbing," and expressed its
determination that allowing her to resume the practice of law would be detrimental to her
clients and to the public. The Commission further stated that Morin's misconduct violated
her duties to her clients, to the public, and to the legal profession.
The Commission also noted that Morin had not shown any contrition for her
misconduct and that she remained defiant and unaccepting ofresponsibility. It added that in
earlier disciplinary matters, Morin demonstrated a lack ofcontrition for her actions and that
the Commission did not believe Morin's unacceptable behavior would be altered by any fonn
of discipline less than disbarment.
The Commission considered Morin's conduct toward other counsel to be an
aggravating factor in justifying the level of discipline imposed. It noted that her conduct
extended over nearly a decade of litigation and was directed at several other attomeys. It
stated,"Her conduct toward other counsel, while found to not be a violation ofthe MRPC as
pleaded by ODC,is wholly outside the bounds of legitimate advocacy and represents what
the attomey members of the Commission view as the worst, Tost vitriolic and outrageous
communications they have seen."
The Commission further made note of Morin's prior disciplinary matters, one that
resulted in a public admonition and one that resulted in a suspension of not less than seven
10
months.4 The Commission found Morin's conduct regarding Rowsey's testimony
to be
similar to the conduct for which she was suspended from the practice oflaw—"a pattern
of
aggressively making unsupported claims and then engaging in sophistry to dodge the
consequences." It stated further that it does not believe Morin understands or accepts her
professional and ethical obligations as an attorney.
RESOLUTION
Morin has filed objections to the Commission's Findings ofFact, Conclusions ofLaw
and Recommendation. She argues this Court should not adopt the Commission's
rulings
because: the Commission is biased against her and its rulings are retaliatory; the Commis
sion
failed to cite to the record in its findings offact and many ofits findings are not substant
iated
by the record; the Commission failed to support its conclusions oflaw with citations
to legal
authority; the Commission erred in concluding that ODC met its burden of proving
its
allegations by clear and convincing evidence; and the Commission failed to properly apply
contract law.
This Court reviews de novo the Commission's findings of fact, conclusions oflaw,
and recommendations. In re Neuhardt, 2014 MT 88, ¶ 16, 374 Mont. 379, 321 P.3d
833
(citation omitted). This Court reviews matters oftrial administration for abuse ofdiscreti
on.
Blanton v. Dep't ofPub. HHS,2011 MT 110,¶ 22,360 Mont.396,255 P.3d 1229.
Despite
its duty to weigh the evidence,this Court"remain[s]reluctant to reverse the decision
ofthe
Commission when its findings rest on testimonial evidence. We recognize that the
Commission stands in a better position to evaluate conflicting statements after observing the
character ofthe witnesses and their statements." In re Neuhardt, ¶ 16(quoting In re Potts,
2007 MT 81,¶ 32,336 Mont.517, 158 P3d 418).
We have thoroughly reviewed the record in this matter and we find Morin's objections
without merit.
4 In the Matter ofTina L. Morin,No.PR 17-0254, Order(Mont. Mai.6,2018),and In the Matter of
Tina L. Morin, No. PR 17-0448, Order (Mont. Feb. 27, 2019), reh'g den. Mar. 26, 2019,
respectively. Morin remains suspended from the practice oflaw at 'this time.
11
First, Morin argues this Court should reject the legitimacy of the
Commission's
rulings because it is biased and retaliating against her for "engaging
in whistleblower
activitr that exposed the Commission's alleged bias against female attorneys
. According to
Morin,ODC and the Commission have been and continue to be engaged in a concerte
d effort
to discriminate against female attorneys and they have pursued the present disciplin
ary action
against her because she exposed their conspiracy by filing an affidavit as an expert
witness in
a disciplinary matter involving another female attorney. She asserts that she has
exposed the
discriminatory actions of both ODC's counsel and Taleff and she therefore objects to
their
involvement in this case.
As evidence of Taleffs alleged discriminatory conduct, Morin asserts that he
misrepresented to this Court and to a federal district court that she had been subject
to a
public admonition by the Commission when in fact the admonition was private. Morin raised
this assertion in a pre-hearing motion before the Conmfission, and the Commission found
Morin's assertion that her admonition had been a private admonition to be factually incorrect
,
thus belying her argument that Taleffs alleged misrepresentation ofsuch was evidence
of
discrimination or bias. Morin continues to assert, however,that Taleffs representation ofher
admonition as public is false and that this evidences the Commission's bias against her.
Whether Morin's admonition in the earlier disciplinary matter was public or private is
a rather minor underlying concern, but it is illustrative of and consistent with Morin's
behavior throughout this disciplinary matter. In In the Matter of Tina L. Morin,
No.PR 17-0254,ODC filed a disciplinary complaint in which it alleged Morin violated three
Rules of Professional Conduct by making false representations to a federal judge and by
filing a document against the directive ofthatjudge. Morin denied the allegations, and the
matter proceeded to a disciplinary hearing. After hearing, the Comrnission issued Findings
of Fact, Conclusions ofLaw,and Discipline in which it found Morin's explanation for her
actions not credible and determined she should receive a public admonition. Morin then
petitioned this Court for review ofthe Commission's decision, arguing that it should impose
no discipline. In this filing, Morin acknowledged that the discipline recommended by the
12
Commission was a public admonition.
Upon review,this Court accepted and adopted the Commission's rulings,holding that
Morin would receive a public admonition from the Commission. Soon after, the Commission
set the time and place for the public admonition and issued an Order to appear, instructing
Morin that she was required to be present for the public admonition.
The admonition was delivered as scheduled on April 19,2018. When Commissioner
Jean Faure imposed the admonition, however,it appears that she mistakenly referred to it as a
private, rather than a public, admonition. On May 1, 2018, Talefffiled with this Court, and
served upon Morin via her counsel,a Record ofImposition ofDiscipline which indicated that
the Commission had given a public admonition, orally delivered by Commissioner Faure,to
Morin. Morin raised no objection, nor did she seek any clarification whether the admonition
was public or private.
On June 13,2019,ODC again brought the public nature ofthe admonition to Morin's
attention via letter. In that letter, ODC advised Morin that it had learned that during her
testimony before a panelist of the Ninth Circuit Court of Appeals regarding reciprocal
discipline, Morin had represented she "agreed to a private admonition"in PR 17-0254. ODC
reminded Morin she had not agreed to discipline: rather, the matter proceeded to a contested
case hearing, followed by an Order from the Commission imposing a public admonition,
followed by an Order of this Court that adopted the Commission's imposition of a public
admonition. ODC further advised,"The admonition was imposed on April 19,2018,wherein
Commissioner Faure mistakenly advised you that it was private."
Morin provided this letter as an exhibit to her September 10,2019 motion to vacate,
describing it therein as "a letter from the ODC in which the ODC,in writing and publicly,
acknowledges that Respondent received only a private admonition." Morin attached the
same letter to her Petition for Writ of Supervisory Control, OP 20-0007, describing it as
"ODC's Letter acknowledges Private Admonition." In her present objections, Morin again
states,"ODC letter stating [sic] the admonition was indeed private." There is no basis in
reality for Morin's insistence that the ODC letter—which specifically advises Morin that the
13
Commission,with the approval ofthis Court,iinposed a public admonition upon her although
a Commissioner mistakenly stated that it was a private admonition—constitutes
an
acknowledgment that Morin received a private admonition. Morin's refusal to accept
the
rational explanation that the Commissioner misspoke when she called it a private admonitio
n,
when all other evidence,including Morin's own filings and this Court's Order,indicate that
the admonition was public, defies all reason. Since Taleffdid not misrepresent the nature of
Morin's admonition, we are unpersuaded by her argument that his doing so is evidence of
bias toward her.
Similarly, we are unpersuaded by Morin's accusation that Taleffis retaliating toward
her because she filed an affidavit in a disciplinary matter for another attorney in which she
accused Taleffofsexism. Morin provides no evidence beyond making the allegation that her
affidavit must have provoked a retaliatory response.
Likewise, the only support Morin offers for her allegation ofbias by ODC's counsel
Jon Moog is that he prosecuted this matter, which Morin terms "baseless" and therefore she
concludes must be motivated by bias against female attorneys.
This Court stands firm in its intolerance of discrimination. The record reveals none.
It is fair to say that many,if not a majority of,the disciplinary cases the Court has seen from
the Commission involve male attorneys. The discipline recommended has been based on the
attorney's misconduct, and the discipline imposed has been commensurate with the nature of
that conduct and the history of disciplinary action, regardless of the attorney's gender.
Morin's accusations of bias against female attorneys are unsubstantiated and out of bounds.
Next, Morin argues that this Court should reject the Commission's findings of fact
because the Commission fails to cite to the record in support ofits findings. This argument
has no merit. The Commission cites to the record throughout its findings and, having
reviewed the record, we have found no substantial errors. Although Morin points to
20 findings with which she takes issue, our review ofthe record reveals that each is either
inclisputable or a reasonable inference reached by the Commission.
Third, Morin argues that this Court should reject the Commission's conclusions oflaw
14
because•the Commission fails to cite to legal authority and because the conclusions oflaw
are
not supported by clear and convincing evidence. We also find these argurnents meritless. As
to the former,the Commission cites to the Montana Rules ofProfessional Conduct as well as
to applicable case law in its conclusions. In a disciplinary matter, ODC has the burden to
prove its allegations by clear and convincing evidence. Rule 22(B)—(C) of the Montana
Rules for Lawyer Disciplinary Enforcement. That standard requires "that a preponderance of
the evidence be definite, clear, and convincing, or that a particular issue ... be clearly
established by a preponderance of the evidence or by a clear preponderance of proof"
Harding v. Savoy, 2004 MT 280, ¶ 51, 323 Mont. 261, 100 P.3d 976 (citation omitted).
Here, much of the evidence upon which the Commission relies is undisputed, and the
remainder is a question of credibility for the factfinder—in this case the Commission—to
resolve. State v. Ahmed, 278 Mont. 200, 212, 924 P.2d 679, 686(1996)(Trier of fact
determines the credibility of witnesses and the weight to be given to'their testimony and
determines which prevails if evidence conflicts.); State v. Zimmerman,2018 MT 94, 1120,
391 Mont.210,417 P.3d 289(citation omitted)(This Court will not reweigh the evidence or
the credibility of witnesses.). In our de novo review of the evidence in this matter, we
conclude that ODC met its burden of proving by clear and convincing evidence that Morin
elicited false testimony from Rowsey,that she failed to promptly communicate incurred costs
to the Labairs, and that she unreasonably charged certain costs to the Labairs.
Finally, Morin argues that the Contsion incorrectly disregarded contract law,
making findings offact and conclusions oflaw "without regard to the law ofcontracts or the
contract that governed the parties." This argument appears to go to the issue whether Morin
violated M.R.Pro. Cond. 1.5(a) when she charged the Labairs for the use ofa legal research
consultant and a brief writer. Morin Maintains that the contract she had with the Labairs
allowed her to "hire whomever she felt was needed for the case." She further maintains that
appellate brief writers are "used all the time by Montana attorneys." Morin misses the point:
ODC and the Commission did not take issue with her use of these services; they instead
faulted her for passing the expense along to her clients as an added cost. As the Commission
15
pointed out, M.R.Pro. Cond. 1.5(c)prohibits including charges for electronic legal
research
unless the client has given informed consent. Here,the Labairs did not give such
consent and
yet Morin attempted to pass along these charges to her clients. Furthermore,Morin
accepted
this case on a contingent fee basis. Though free to hire an attorney to write
the appellate
briefs, she could not then charge this to the Labairs as an expense without their consent
. As
the Conmfission noted in its findings, Morin's fee agreement with the Labair
s provided for
neither ofthese expenses to be taxed to the Labairs.
For these reasons, we adopt the Commission's Findings ofFact and Conclusions
of
Law and hold that Morin violated M.R. Pro. Cond. 3.3(a)(3), 3.4(b), 3.4(c), and
8.4(c) by
soliciting false testimony from a trial witness, M. R. Pro. Cond. 1.4(a)(1), 1.4(a)(
4), and
1.4(b) by failing to promptly inform her clients about their incurre
d costs, and
M.R.Pro. Cond. 1.5(a) by unreasonably charging certain costs to her clients.
As to the recommended discipline, we agree with the Commission's recommendati
on
that Morin's conduct warrants disbarment. We share the Commission's concerns
regarding
Morin's conduct, both in this matter and as an overall pattern of conduct,
her lack of
contrition, and her unwillingness to accept responsibility for her actions,
Although the
Commission did not conclude that Morin's conduct toward other counsel was in and
ofitself
a violation ofthe Rules as charged by the ODC,we agree that such conduct is an
aggravating
factor. We note that Morin perpetuated this conduct in the objections she
filed with this
Court, baselessly accusing Taleff of: acting as "a hearings officer enrage
d beyond the
capacity for rational or logical thought," engaging in "gas lighting," indulging
in "hysteria,"
exhibiting "unethical conduct," being "ignorant," and characterizing his work
as Chairman
as a"reign ofterror." Morin's conduct is inconsistent with the effective practic
e oflaw and
does not serve the public, her clients, the legal profession, or herself.
We find the Commission's rationale in recommending disbarment to comport with the
seriousness of the misconduct in the present matter, in conjunction with Morin's
record of
previous disciplinary actions, her pattern of behavior, and her unwillingness
to accept
responsibility. As the Commission noted, discipline short of disbarment
has been
16
unsuccessful in persuading Morin to abide by her professional and ethical obligations to the
practice of law in Montana.
Based upon the foregoing,
IT IS HEREBY ORDERED:
1. The Commission's Findings of Fact, Conclusions of Law,and Recommendation
are ACCEPTED and ADOPTED.
2. Tina L. Morin is hereby disbarred from the practice of law in Montana, effective
thirty days from the date ofthis Order. Morin is directed to give notice of her disbarment to
all clients she represents in pending matters, any co-counsel in pending matters, all opposing
counsel and self-represented opposing parties in pending matters,and all courts in which she
appears as counsel ofrecord in pending matters, as required by Rule 30 ofthe Montana Rules
for Lawyer Disciplinary Enforcement.
3. Tina L. Morin shall pay the costs ofthese proceedings,subject to the provisions of
Rule 9(A)(8)ofthe Montana Rules for Lawyer Disciplinary Enforcement allowing her to file
objections to the statement of costs.
The Clerk of this Court is directed to provide a copy of this Order of Discipline to
Tina L. Morin and 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 ofthe Circuit Court of Appeals of the Ninth Circuit, and the Executive
Director ofthe State Bar of Montana.
4.i-
DATED this sS 1 —d-ay of March, 2020.
(
Justi
6,
We concur:
17
9-71 A4 211,
Justice Laurie McKinnon did not participate in the consideration ofthis Recommendation for
Discipline.
18