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                   IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                            2001 MT 257

                                         ______________________________



IN RE THE CREATION OF THE OFFICE )

OF DISCIPLINE COUNSEL; THE )

THE ADOPTION OF STRUCTURAL )

CHANGES TO THE COMMISSION ) O R D E R

ON PRACTICE; AND THE ADOPTION )

OF CHANGES TO MONTANA'S )

SYSTEM OF DISCIPLINING LAWYERS. )

                                     __________________________________




                                                             Introduction



   1. ¶Over the past decade Montana's system for disciplining lawyers has been studied,
       criticized, lauded and litigated. Some maintain that this system is not broken and
       does not need to be fixed. Others argue that flaws inherent in the structure of the
       system threaten the constitutional rights of those caught up in its processes. Still
       others maintain that our current system does not adequately protect the public from

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        unethical members of the Bar.
   2.   ¶Whatever truth there may be in any of these positions, the fact is that for decades
        countless good and decent lawyers have devoted immeasurable hours of their time;
        have, in many instances, contributed their own funds; have sacrificed their practices;
        and have selflessly given of their collective experience and good judgment to the
        cause of disciplining errant members of their profession. For that service and to
        those who continue to serve this cause, the Bench and Bar, in general, and this
        Court, in particular, are grateful.
   3.   ¶However, there is no institution or process that cannot be improved. What might
        have been accepted and acceptable in the past, is unacceptable in the present.
        Whether changes are necessitated by actual or simply perceived shortcomings, at
        some point, those charged with the responsibility for the system must act to preserve
        the integrity of the institution and public and professional confidence in its
        processes and work product. This Court is now at that point.
   4.   ¶In our January 9, 2001 Order In the Matter of Revisions of the Rules for Lawyer
        Disciplinary Enforcement, we acknowledged the State Bar of Montana's (Bar)
        request for and our need to consider improvements to Montana's lawyer disciplinary
        enforcement system. Though we adopted changes to Montana's Rules for
        Disciplinary Enforcement on petition of the Commission on Practice (Commission)
        in our Order of September 21, 2000, we specifically declined to address the Bar's
        suggested structural changes to our system for disciplining lawyers until this Court
        was reconstituted this year. That accomplished, our January 9, 2001 Order started a
        process of study and meetings which culminated in the Bar and Commission
        submitting to this Court on September 5, 2001, a Proposed Disciplinary Structure
        report.
   5.   ¶Having carefully considered and deliberated on this report, along with the
        comments and discussion made at the September 5, 2001 public meeting attended
        by representatives of the Court, the Bar, the Commission and members of the
        public, and further comments and suggestions made by the Bar and the Commission
        in response to a draft of certain portions of this order, we have determined that the
        following changes to Montana's system and structure for disciplining lawyers shall
        be made:

                                                Office of Discipline Counsel

   1. ¶There is created an Office of Discipline Counsel which shall be staffed by an
        attorney licensed to practice law in Montana and who shall perform the duties of

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        Discipline Counsel hereafter set forth; by an administrative assistant; and by a
        person who has the qualifications of both a paralegal and an investigator. Discipline
        Counsel shall be hired by and shall be subject to the supervision of this Court. Other
        Office of Discipline Counsel staff shall be hired by Discipline Counsel and shall be
        subject to the supervision and direction of Discipline Counsel.
   2.   ¶Discipline Counsel and staff shall be employees of the Bar for administrative
        purposes only and shall be paid by and provided employment benefits by the Bar
        from dues payments assessed members of the Bar for this purpose as are, from time
        to time, determined by this Court. Salaries of Discipline Counsel and staff shall be
        determined and set by this Court.
   3.   ¶Discipline Counsel and staff shall be officed in discrete space, separate from the
        offices of the Bar and separate from the administrative offices and staff of the
        Commission.
   4.   ¶The Office of Discipline Counsel shall perform certain "central intake" functions
        including: receiving, by telephone, complaints regarding lawyers from members of
        the public; making referrals regarding these complaints as appropriate while
        insuring that any member of the public who wishes to make a complaint is able to
        do so; sending to the potential complainant a packet of written materials containing
        appropriate forms, instructions and discussion of Montana's lawyer disciplinary
        process; and receiving written complaints on the forms provided.
   5.   ¶Discipline Counsel shall have the following duties and those other duties assigned
        by this Court in its discretion from time to time: Discipline Counsel shall
        preliminarily review each written complaint received by the Office of Discipline
        Counsel and shall determine whether the complaint involves a matter of lawyer
        discipline over which the Commission has jurisdiction. Where the complaint
        appears to be not within the jurisdiction of the Commission, Discipline Counsel
        shall so advise the complainant in writing and determine whether the complainant
        still wishes to proceed with the complaint. Where the complaint appears to be within
        the jurisdiction of the Commission or where the complainant otherwise wishes to
        proceed with the complaint, Discipline Counsel shall: send a copy of the complaint
        for response to the attorney against whom the complaint is made; if appropriate,
        request a reply to the response from the complainant; in each case, prepare an intake
        summary and recommendation to the Commission, including a recommendation of
        dismissal where the complaint is not within the jurisdiction of the Commission; and,
        if warranted under the Rules of Lawyer Disciplinary Enforcement, recommend
        temporary suspension of the lawyer to the Commission, which then may or may not
        recommend temporary suspension to this Court.

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   6. ¶Additionally, Discipline Counsel shall: investigate complaints referred from the
      Commission Review Panel(s); present written reports of investigation and appear
      before the Commission to orally supplement reports of investigation; draft and
      prosecute complaints requiring interim suspension and formal complaints filed
      before the Commission; recommend discipline to the Commission; and advocate
      findings of fact and conclusions of law resulting from Commission discipline
      proceedings.
   7. ¶Discipline Counsel shall have no authority to dismiss any complaint or impose any
      form of discipline on any lawyer.
   8. ¶Discipline Counsel shall be the chief administrative officer of the Office of
      Discipline Counsel with authority and responsibility to supervise and direct the
      operations of the office and of all staff; to prepare budget recommendations; to
      prepare Bar member dues assessment recommendations; and to make
      recommendations, generally, to this Court regarding the lawyer discipline system.

                                       Structural Changes to the Commission

   1. ¶The Commission shall, at a date to be determined by further Order of this Court,
      organize itself and operate in one or more Review Panels and in one or more
      Adjudicatory Panels as hereinafter set out. All matters pending on the
      aforementioned date shall continue to be processed under the procedure and rules
      then in use and effect. Complaints against members of the Bar received by the
      Office of Discipline Counsel on and after the date aforementioned shall be
      processed under the panel system.
   2. ¶Three new members shall be added to the Commission. Two new members shall be
      non-lawyers and one new member shall be a lawyer licensed to practice in Montana.
      The new lawyer member shall be a member "at large" and may be appointed from
      any of the presently existing areas as set forth in Rule 1 of the Rules for Lawyer
      Disciplinary Enforcement. The manner of election and appointment of the three new
      members shall be in accordance with Rule 1, except to the extent modified herein.
   3. ¶The fourteen-member Commission shall, under the direction of its Chairperson,
      organize itself into one or more Review Panels consisting of five persons and one or
      more Adjudicatory Panels consisting of nine persons. The Chairperson shall, from
      time to time, realign the membership of the panels providing always for a fair
      representation of lawyers and non-lawyers on each panel. The Commission shall
      determine the frequency, method, place and scheduling of panel meetings, subject to
      the direction of this Court in this document and as otherwise ordered from time to

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      time.
   4. ¶The administrative staff of the Commission shall track the panel membership
      insuring that no Review Panel member who sits on a particular case also sits on the
      Adjudicatory Panel for that case or otherwise deals with that case in any manner.
      The administrative staff of the Commission shall also take minutes of panel
      meetings and perform such other duties as the Commission shall, from time to time,
      direct.
   5. ¶The Review Panel(s) shall: review the complainant's complaint, the response from
      the attorney against whom the complaint was made and any reply from the
      complainant along with relevant documents, Discipline Counsel's intake summary,
      and any report of investigation and recommendations by Discipline Counsel;
      determine and decide preliminary and procedural matters; refer the complaint to
      Discipline Counsel for further investigation or filing of a formal complaint and, if
      appropriate, a complaint requesting interim suspension, when the facts appear to
      warrant disciplinary action; or dismiss the complaint when the facts do not appear to
      warrant disciplinary action.
   6. ¶The Adjudicatory Panel(s) shall, in accordance with the specific procedures and
      provisions of the Rules for Lawyer Disciplinary Enforcement: hear, determine and
      make findings of fact, conclusions of law and recommendations to this Court as to
      all formal complaints and complaints for interim suspension filed against lawyers by
      Discipline Counsel.

                                                           Miscellaneous

   1. ¶There shall be no "term limits" for members of the Commission.
   2. ¶The date of implementation for the foregoing and the amount of dues assessment to
      the members of the Bar by this Court to fund the Office of Discipline Counsel and
      the structural changes to the Commission will be determined and set by subsequent
      Order. It is expected, however, that the changes effected by this Order will be
      implemented prior to July 1, 2002.
   3. ¶The foregoing is a general statement of intent by this Court regarding the matters
      discussed herein. We contemplate that there are and will be a myriad of details to be
      worked out with all those concerned and involved; that amendments to the Rules for
      Lawyer Disciplinary Enforcement will be necessary to implement these changes;
      and that there will likely be further Orders refining and clarifying these matters as
      necessary.
   4. ¶Finally, we gratefully acknowledge the hard work and professional guidance that


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        the Commission, its administrative staff, and the Bar and its administrative staff
        have provided to this Court in connection with the foregoing. We realize that this
        has been and will be a difficult transition for many. Nonetheless, we are satisfied
        that these changes in Montana's system for disciplining lawyers will improve the
        system for the benefit of the members of the Bar; for the benefit of the profession as
        whole; and for the benefit of the public we all serve.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of this Court shall give notice of this Order by
mail to: the Chairman of the Commission and to each member thereof; to the President
and Executive Director of the Bar, with the request that this order be published
prominently in the next issue of the Montana Lawyer and posted to the Bar's webpage; to
the State Law Librarian for the State of Montana with the request that this Order be posted
to the State Law Library's webpage; to the State Reporter Publishing Company; and to
WestGroup. DATED this 11th day of December, 2001.

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

/S/ JIM RICE




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