Highly irregular ODC complaint fails to allege violation, must be dismissed

HELENA – The Attorney General’s Office responded to a highly irregular Office of Disciplinary Counsel complaint that was based on a grievance filed by a lawyer in California nearly two years ago. All counts in the complaint should be dismissed because they fail to allege a violation of the Montana Rules of Professional Conduct. Further, if the Montana Rules of Professional Conduct can be read to apply to the conduct in this case, those rules violate the First and Fourteenth amendments of the United States Constitution.

The complaint alleges that the Attorney General violated Rule 3.4(c), Rule 8.2(a), Rule 8.4(d), Rule 5.1(c), and Rule 8.4(a) while representing the Montana Legislature during a long-running dispute that began years ago with a bill to change the method of filling mid-term judicial vacancies, the Legislature’s discovery of judiciary-wide emails pre-judging the constitutionality of that (then-pending) legislation, and legislative subpoenas for those emails.

Rule 3.4(c)
The complaint alleges the Attorney General violated rule 3.4(c) by disobeying a Montana Supreme Court Order purporting to quash the Legislature’s subpoena of the Montana Supreme Court, and for his refusal to immediately return the Montana Supreme Court’s materials produced under that subpoena.

The rule states it is a violation to “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” However, the actions alleged to be violations were both “open” and “based on an assertion that no valid obligation exists,” making his actions permissible under Rule 3.4(c)’s plain terms.

“The Attorney General consistently argued that that Order was invalid—a position he pressed all the way to the United States Supreme Court. And as soon as that Court denied the Legislature’s petition for a writ of certiorari—and the Attorney General had thus exhausted every opportunity to challenge the Order—he complied,” the response states.

Rule 8.2(a)
The complaint alleges that the Attorney General violated Rule 8.2(a) by making allegations of judicial misconduct and questioning the impartiality of Montana Supreme Court justices while ruling on a Legislative subpoena issued to their own court administrator and to the justices themselves.

The rule states, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

However, circumstances giving rise to the dispute between the judicial branch and the legislature (which the Attorney General’s Office was representing), gave the Attorney General legitimate and factual support for the statements alleged to be violations. Therefore, no violation of Rule 8.2(a) occurred, because the statements were based on ample and undisputed evidence and were not “know[n] to be false” or “made with reckless disregard to [their] truth or falsity.”

“Finding the Attorney General in violation of Rule 8.2(a) based on those well-supported allegations would conflict with both the rule’s text and with the Commission’s past practice,” the response states. “If the Attorney General were disciplined here for what he determined to be well-founded allegations, it would be a stark departure indeed. And that departure would surely chill other attorneys from raising well-supported concerns about judicial misconduct in the future.”

Rule 8.4(d) 
Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” To prove a violation of this Rule, ODC must demonstrate, by clear and convincing evidence, “some nexus between the conduct charged and an adverse effect upon the administration of justice.” However, ODC has not identified any direct adverse effect in ongoing proceedings – because none occurred.

“The Complaint alleges that the Attorney General violated Rule 8.4(d) in two ways: First, by sending letters and making statements that failed to uphold the dignity of the Court. And second, by failing to immediately return materials produced under the subpoena in McLaughlin. But neither charge involved any direct adverse effect on the proceedings… In fact, the record reflects that there was none: The proceedings continued uninterrupted despite the various filings highlighted in the Complaint,” the response states.

Rules 5.1(c) and 8.4(a)
Rules 5.1(c) and 8.4(a) involve responsibility for violations of the rules by lawyers under direct supervisory authority and assisting or inducing others to do so. Because none of the conduct alleged involved a violation of the rules, as described above, these rules can also not have been violated.

Because, as outlined, the allegations in the Complaint fail to allege a violation of the Montana Rules of Professional Conduct, it must be dismissed. However, if these Rules can be read to conflict with their plain meaning and to cover the conduct in this case, then they fail to provide a reasonable person fair notice of what is prohibited and are therefore unconstitutionally overbroad and vague in violation of the First Amendment and also violate the Due Process Clause of the Fourteenth Amendment.

Click here to read the response.

###