             1 THE SUPREME COURT OF THE STATE OF MONT
             S



L THE hlATTER OF REVISING THE RULES
 N                                                            1
FOR LAWYER DISCIPLINARY ExFORCEMEliT.                         1
2002 (RLDE 2002)                                              )


       Before this Court is a Petition to Adopt Rule Changes to the Rules for Lawyer

Disciplinary Enforcement, 2002 (RZDE 2009, filed by Timothy B. Strauch, Disciplinary

Counsel.

       First, Mr. Strauch recommends amending Rules 3.5 and 10 (RLDE 2002), to provide

that the Office of Disciplinary Counsel (ODC) may dismiss complaints without prejudice

under certain circumstances.

       Second, Mr. Strauch recommends amending Rule 9 4 8 ) (RLDE 2002), to include an

assessment of an administrative fee of $750 in all fomial disciplinary proceedings, in

addition to an assessment of out-of-pocket costs.

      Third, Mr. Strauch recommends amending Rule 13 (RLDE 2002) to allow Review

Panels to consider private admonitions in deternlining discipline to be recommended in or

imposed in subsequent disciplinary proceedings.

      Fourth, Mr. Strauch recommends amending Rule 20 (RLDE 2002), to allow disclosure

of otherwise confidential disciplinary information to ODC, the Lawyers' Fund for Client

Protection Board, and the Commission on Character and Fitness, and other agencies as

designated by the Court. This proposal is based upon the ABA M.odel Rules for Lawyer

                                            I
Disciplinary Enforcement, Rule 16.

        Fifth; Mr. Strauch recommends amending Rule 20 (RLDE 2002jl to conform more

closely to Model Rule 16 by allowing disclosure of otherwise confidential infonnation where

the respondent has waived confidentiality or where the matter is already public.

        Sixth, Mr. Strauch recommends amending Rule 20 (RLDE 2002), to conform more

closely to Model Rule 16 by allowing disclosure of otherwise confidential infonnation where

the proceeding is based upon criminal convictions or reciprocal discipline by another

jurisdiction.

       Seventh, Mr. Strauch recommends amending Rule 20 (RLDE 2002), by adopting a

new rule excluding ODC's or special counsel's opinions and conclusions from admission

into evidence in any civil or criminal proceeding. Mr. Strauch has attached to the petition

various supporting exhibits.

       Finally. by a subsequent recommendation of the COP and ODC, Rule 26A (RLDE

2002) should be amended to clarify that tendered admissions for discipline are subject to

approval or rejection by the Supreme Court in all instances except where the discipline is a

private admonition with or without imposition of costs of the proceeding.

       Pursuant to order of this Court, the Supreme Court's Commission on Practice and the

State Bar of Montana have both submitted position statements with respect to Mr. Strauch's

Petition to Adopt Rule Changes.

       This Court, having considered the Petition and Exhibits and the position statements
of the Commission on Practice and the State Bar of Montana, has determined to grant Mr.

Straucb's petition amending Rules 3, 5 and 10 jllLDE 20021, with certain modifications

suggested by the Commission on Practice; to grant the proposed amendment to Rule 13

(RLDE 2002): to deny the petition to amend Rule 9A(8)? to include the assessment of an

administrative fee of $750 in all formal disciplinary proceedings in addition to an assessment

of out-of-pocket costs; to grant the amendments to Rule 20 (RLDE 2002), and to amend Rule

26.4 (RLDE 2002) in the manner suggested.

       For ease of reference, the present Rules and the amendments thereto are attached as

Exhibit A to this Order and by this reference are made a part hereof for all purposes.

Stricken language is deleted and underlined language is added. Other than as indicated on

Exhibit A, no other amendments have been made to the RLDE 2002.

       IT IS ORDERED that the foregoing amendments to the Rules for Lawyer Disciplinary

Enforcement 2002 (RLDE 2002), which are attached to this Order, are adopted, effective
         7i"
July 2 , 2 0 0 3 .

       [T IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail

copies of this Order with the attachment to: Gregory J. Petesch, Code Commissioner for the

State of Montana; the Chairman of the Cornmission on Practice with the request that he

distribute this Order to the members of the Commission; the President and Executive

Director of the State Bar of Montana with the request that this Order be published in the next

available issue of the Montana Lawyer and posted to the Bar's web page; the State Law
Libranan with the request that t h ~ Order be posted to the State Law Library m eb page: the
                                     s

State Reporter Publishing Company with the request that this Order be published in the State

Reporter; and West Group mith the request that this Order be published in the annual update

of Montana Rules of Court.

                           day of July. 2003
             RULES FOR IAWYER DISClP1,IUARY ENFORCEFvIENT

ADOPTED RULE CHANGES

RULE 3--REVIEW PANELS: Composition; Powers and Duties; Quorum

B. Powers and Duties. A Reviem Panel shall:

       ( I ) Review the complaint, the response from the lawyer against whom the
       complaint was made and any reply from the complainant together with other
       relevant documents and Disciplinary Counsel's intake summary,
        investigative report and recommendations.
       (2) Determine any preliminary and procedural matters.
       (3) Refer complaint to Disciplinary Counsel for any further investigation.
       (4) Dismiss the complaint when the facts do not appear to warrant
       disciplinary action.
       (5) Request Disciplinary Counsel to prepare and file with an Adjudicatory
       Panel a formal complaint when the facts appear to warrant disciplinary
       action.
       (6) Request Disciplinary Counsel to prepare and file with an Adjudicatory
       Panel a complaint proposing interim suspension in an appropriate case.
       (7) Hear and determine requests for review pursuant to Rule lOC(3) and for
       reconsideration pursuant to Rule 13.
       (8) Authorize the stay of disciplinary proceedings for good cause shown
       pursuant to Rule 28.
       (9) Conduct show cause hearings when a lawyer has refused to respond to
       inquires from the Office of Disciplinary Counsel or the Commission.
       (10) Notify parties of action by a Review Panel.

RULE 5--OFFICE OF DISCIPLINARY COUNSEL

B.     (5) Dismiss ifthe tnformation. if true. nould not constitute n~isconduct
                                                                              or
incapacity: or recommend discipline;

        (8) Notify promptly the complainant and the lawyer that an investigation is to be
initiated by Disciplinary Counsel or. where Disciplinary Counsel dismisses. provide a
concise written statement of the facts and reasons a matter has been dismissed;
C. Prohibited Activities. Disciplinary Counsel shall not have authority to render
                                                  . .
advisory opinions, either orally or in writing; -
                                              ;                    or to impose any
form of discipline on a lawyer.

RULE 10--OFFICE OF DISCIP1,INARY COUNSEL PROCEDCRE

B. Preliminary Review and Processing of Informal Complaints. The Office of
Disciplinary Counsel shall conduct a preliminary review of each written complaint
received by the Office and determine whether the complaint involves a matter that is
within the disciplinary jurisdiction of the Court.    L
                                                      .




C. Investigation.   1


       j l ) All investigations shall be conducted by or under the authority and
       direction of Disciplinary Counsel. Upon such investigation as Disciplinary
       Counsel deems appropriate. he or she may:
                       (1) Send the complaint to the lawyer against whom the
               complaint is made;
                       ( 2 ) Send the Lawyer's response to the complainant and,
               if appropriate, request his or her reply to the lawyer's
               response;
                       ( 3 ) Prepare an intake summary; and
                       (I)Conduct an investigation and prepare an
               investigative report; or
               (b) With or without some or all of the process set forth in
               Rule 10C(l )(a). dismiss the complaint without prejudice,
               where the complaint does not appear to be within the
               disciplinary iurisdiction of the Court, or the facts do not
               appear to warrant disciplinary action.
      ( 2 Uotice of Disposition. In the event of a dismissal. Disciplinary Counsel
      shall give written notice to the complainant and to the respondent of the
      dismissal. stating the reasons for the action taken. and advising the
      complainant of the right to request review of the dismissal. or to file an
      amended complaint.
      ( 3 ) Request for Review. The complainant may tile a written request for
      review of Disciplinary Counsel's dismissal within 30 days of the notice of
       disposition pursuant to Rule lOC(2). Disciplinary Counsel's dismissal shall
       he reviewed by a Review Panel unon the record before it. The Reviex
       Panel may approve. disapprove. or modify Disciplinary Counsel's
       disposition.

D. Review Panel Proceeding. Disciplinary Counsel shall:
     (1) Prepare recommendations to a Review Panel: r n e k h g a


       (2) Present the intake summary, investigative report and recommendations
       to a Review Panell orally supplementing them at the request of a Review
       Panel; and
       (3) Conduct further investigation at the request of a Review Panel.

RULE 13--PRIVATE ADMOlYITIONS

At any time before initiation of formal disciplinary proceedings, an Adjudicatory Panel, in
its discretion, may give a private admonition to the lawyer in the name of the Supreme
Court, either orally or in writing, with or without imposition of costs of proceedings, and
may require the lawyer to appear personally before an Actjudicatory Panel to receive the
admonition. Thereupon, the matter shall be deemed terminated except that the
Commission shall maintain a record of such admonition which record may be considered
by Adjudicatory Panels and Review Panels in determining discipline to be recommended
or imposed in any subsequent disciplinary proceeding involving the lawyer. Private
admonitions are not appealable.

RULE 20--ACCESS TO DISCIPLINARY INFORMATION

A. Confidentiality. All disciplinary proceedings which are prior in time to the filing of a
formal complaint with the Clerk of the Supreme Court shall be confidential, except that
the pendency. subject matter. and status of an investigation may be disclosed by
Disciolinary Counsel if:
       (1) The respondent has waived confidentiality;
       ( 2 ) The proceeding is based upon allegations that include either the
       conviction of a crime or reciorocal discipline;
       (3) The proceeding is based upon allegations that have become eenerally
       known to the public; or
       34) There is a need to notify another oerson or organization, including the
       L a y e r s Fund for Client Protection Board or the Commission on Character
       and Fitness. in order to protect the public. the administration oflustice. or
       the leeal profession.

Upon the filing of a formal complaint, the Commission's entire file on the matter shall be
subject to discovery.

E. Admissibilitv in Other Proceedings. The conclusions. o~inions
                                    -                              and
recommendations of Disciplinary Counsel or any investigator or special counsel acting on
g
relevant or admissible for any purpose in any quasi iudicial or iudicial forum. exclusive of
the Commission on Practice and the Montana Supreme Court in a discipIinary action.

RULE 26--DISCIPLINE BY CONSENT

A. Adjudicatory Panel Approval of Tendered Admission. A lati yer concerning
whom an investigation is bemg conducted because of allegat~ons misconduct. or
                                                                    of
against whom formal disciplinary proceedings have been filed may tender a conditional
admission to the complaint or to a particular count thereof in exchange for a stated form
of discipline. The tendered admission shall be submitted to an Adjudicatory Panel. An
Adjudicatory Panel may refer the tendered admission to the Disciplinary Counsel for
recommendations. The Adjudicatory Panel may either approve or reject the tendered
admission. The Adjudicatory Panel, with the lawyer's consent, may hold a private
hearing for the purpose of obtaining information to aid the Adjudicatory Panel in
determining whether to approve or reject the tendered admission. If the tendered
admission is approved by the Adjudicatory Panel, such approval shall be final if the stated
                                                                           . . . .
form of discipline is private admonition,
                                             with or without imposition of cos& of the
proceeding: but. in all other instances the tendered admission shall be subject to approval
or rejection by the Supreme Court. If the stated form of discipline is rejected by either the
Adjudicatory Panel or the Supreme Court, the admission shall be deemed withdrawn and
cannot be used against the lawyer in any subsequent proceedings.
