Local Rule 83.2: Standards of Conduct and Discipline

83.2 Standards of Conduct and Discipline

(a) Professional Rules. The standards of professional conduct of attorneys appearing in this court include the American Bar Association's Model Rules of Professional Conduct and the Montana Rules of Professional Conduct. For a willful violation of any professional rules or standards in connection with any pending matter, an attorney is subject to appropriate disciplinary action and to referral of the matter to the appropriate authority for disciplinary proceedings.

(b) Attorney Under Appointment of Court.

(1) Compensation. It is the duty of an attorney to act without compensation whenever the attorney is appointed by the court to represent an indigent person in any proceeding not covered by the provisions of 18 U.S.C. § 3006A, except as otherwise provided by statute or rule.

(2) Gratuities. Attorneys appointed by the court to represent an indigent person may not, without specific approval of the court, accept or solicit any money for any purpose from any person on account of the representation. Any attorney violating this rule will be disciplined by the court. If it comes to the attention of any attorney appointed to represent an indigent that the person is in fact not indigent or has sources of money for payment of fees or costs, that fact must be presented to the court, regardless of whether the attorney is permitted to accept or solicit money on account of the representation.

(c) Attire. Lawyers must wear appropriate professional attire for all proceedings before the court.

(d) Discipline, Suspension, and Disbarment.

(1) General Provisions.

(A) An attorney who appears in this court is subject to discipline under this rule for:

(i) disciplinary sanction by a competent authority in any state, federal, territory, commonwealth, or foreign jurisdiction;

(ii) conviction of any crime of which the elements or underlying facts may impact fitness to practice law;

(iii) any act or omission, including incompetence or incapacity, that violates the professional rules set forth in paragraph (a) above;

(iv) violation of any court order; or

(v) misrepresentation or concealment of a material fact made in any application for admission or readmission to the bar of this court.

(B) This rule does not limit any inherent power of the court, such as contempt power, and does not preclude or condition imposition of sanctions for violation of professional standards or an order, rule, or other law.

(C) "Disciplinary Judge" means the Chief Judge or another district judge designated by the Chief Judge to exercise authority in matters of attorney discipline, suspension, or disbarment.

(D) Except as otherwise provided by this rule, or unless the Disciplinary Judge orders otherwise, proceedings under this rule are confidential.

(E) Discipline imposed under this rule may consist of one or any combination of the following:

(i) disbarment or suspension with or without conditions;

(ii) public censure or private reprimand;

(iii) probation with or without conditions;

(iv) restitution, fine, and/or assessment of costs, including reasonable attorney fees; or

(v) referral to appropriate disciplinary authority.

(F) All proceedings under this rule involve the exercise of discretionary judgment in inherently judicial functions. All persons participating on behalf of or at the request of the court in past, present, or future matters are immune from civil liability.

(G) Costs of all proceedings under this rule will initially be borne by the court, but payment of costs and reasonable attorney fees may be imposed on a disciplined attorney.

(H) All documents submitted pursuant to this rule must be delivered to the clerk of court, not to a judge's chambers, and may be enclosed in an envelope marked "Confidential Attorney Matter."

(I) The term "attorney" does not include a federal judge. Complaints against judges must be filed in compliance with procedures established by the Ninth Circuit Court of Appeals.

(2) Reciprocal Discipline.

(A) Duty to Notify of Pending Disciplinary Actions. Upon receiving notice from any jurisdiction that a disciplinary authority has found probable cause to believe conduct warranting discipline has occurred, an attorney must promptly notify the clerk of court of the matter and provide copies of documents issued in that action.

(B) Duty to Notify Clerk of Discipline Imposed in Another Jurisdiction. Upon notice of the imposition of discipline in any jurisdiction, an attorney must promptly notify the clerk of court of the matter and provide copies of documents imposing discipline. Failure to comply with this requirement waives the right to object to imposition of reciprocal discipline in this court.

(C) Show-Cause Order. Upon receiving notice of imposition of discipline in a jurisdiction other than Montana, the Disciplinary Judge will issue an order requiring the disciplined attorney to show cause in no less than 21 days why the same discipline should not be imposed in this court. The order will include:

(i) a requirement that the attorney either produce a certified copy of the record from the other jurisdiction or show why the record is not required;

(ii) a notice that failure to respond will result in imposition of reciprocal discipline without further notice; and,

(iii) if the Disciplinary Judge did not receive notice from the attorney under (d)(2)(B), notice that the attorney may be deemed to have waived the right to object.

(D) Response by Attorney; Findings; Order.

(i) Failure to Respond or Comply. If the Disciplinary Judge finds the attorney did not respond to the show-cause order or did not comply with (d)(2), the identical discipline will be imposed and the matter may be continued under subsections (3) or (4).

(ii) Identical Discipline; Exceptions. After considering the attorney's response, the Disciplinary Judge will impose identical discipline unless:

(a) the attorney was deprived of fair notice or a fair opportunity to be heard in the other jurisdiction;

(b) the proof establishing the misconduct was so unreliable or lacking as to make a finding of misconduct insupportable;

(c) a public censure has already been imposed and the Disciplinary Judge finds it appropriate redress for the attorney's misconduct; or

(d) other substantial reasons counsel against acceptance of the other jurisdiction's conclusions.

(iii) Other Options. If the Disciplinary Judge declines to impose identical discipline, lesser discipline may be imposed, or the matter may be continued under subsections (3) or (4) or closed without imposition of discipline.

(E) Return to Good Standing. Where discipline consists of suspension for a specific period of time and the other jurisdiction returns the attorney to good standing at the end of that period, the clerk may return the attorney to good standing in this court.

(3) Attorneys Convicted of Crimes.

(A) Upon receipt of reliable proof that an attorney has pled guilty or nolo contendere or been found guilty of a crime that may impact the attorney's fitness to practice law, the Disciplinary Judge must immediately suspend the attorney from practice and issue an order to the attorney to show cause why suspension is inappropriate and why a lesser discipline or no discipline is appropriate.

(B) When the availability of direct and discretionary appeal has been exhausted, a criminal conviction is conclusive evidence in any disciplinary proceeding that the attorney committed the crime.

(C) Upon receipt of reliable proof that a criminal conviction has been reversed, the Disciplinary Judge must vacate any disciplinary order that is based solely on the fact of conviction.

(4) Grievance Procedure. The following procedures apply when a judge files a grievance against an attorney.

(A) Grievances.

(i) The clerk must notify the attorney and provide a copy of the grievance.

(ii) The attorney shall not respond unless directed to do so by the Disciplinary Judge.

(iii) A Disciplinary Judge who has not filed a grievance against the attorney will review the grievance and may:

(a) decide that no action is warranted;

(b) refer the matter to another disciplinary authority;

(c) order an investigation; or

(d) after giving the attorney notice and an opportunity to respond:

(1) decide that no action is warranted;

(2) impose private reprimand, restitution, fine, and/or assessment of costs; or

(3) either:

(A) impose any discipline to which the attorney consents in writing; or

(B) order an investigation.

(iv) The clerk will notify the attorney of the Disciplinary Judge's decision.

(B) Investigation.

(i) The Disciplinary Judge may designate one or more members of the bar of this court to investigate a disciplinary matter.

(ii) The investigation must proceed expeditiously and must recommend:

(a) dismissal of the grievance;

(b) intervention short of discipline; or

(c) filing of a formal complaint to initiate further proceedings.

(iii) Where there is more than one investigator, the report must be made jointly, but each investigator must make his or her own recommendation.

(iv) Investigators are authorized to administer oaths and to issue subpoenas.

(v) The attorney must be given a reasonable opportunity to submit relevant evidence or statements.

(vi) The report must include copies of all witness statements, all relevant documentary evidence, and a summary of findings.

(C) Review by Disciplinary Judge. After review of the investigative report, the Disciplinary Judge must:

(i) dismiss the grievance;

(ii) refer the matter to another disciplinary authority and/or, with the attorney's consent, impose measures short of discipline; or

(iii) designate one or more members of the bar of this court to prosecute the matter.

(D) Prosecutor.

(i) The Disciplinary Judge may designate the investigator(s) and/or one or more other members of the Bar of this court to prosecute a disciplinary matter.

(ii) Prosecutors are authorized to administer oaths and to issue subpoenas and may investigate the matter further before and after filing a complaint.

(E) Complaint and Hearing.

(i) The prosecutor's filing of a complaint will initiate a civil action. The Disciplinary Judge or another Article III judge who has not filed a grievance against the attorney will preside.

(ii) The complaint must adequately inform the attorney of the alleged misconduct. It must be served pursuant to Fed. R. Civ. P. 4. A complaint may be amended.

(iii) The presiding judge must promptly hold a conference to set a schedule for all proceedings.

(iv) The Federal Rules of Evidence apply. The presiding judge will determine whether and to what extent the Federal Rules of Civil Procedure apply.

(v) Evidence must be presented in open court. Neither party has a right to a jury. Misconduct must be proved by clear and convincing evidence. The parties must be permitted to present evidence and argument as to the merits, mitigation, and appropriate discipline, if any.

(vi) Within a reasonable time after the close of the evidence, the presiding judge must issue Findings of Fact and Conclusions of Law and specify the disciplinary action to be taken, if any.

(F) Decision. Entry of an order imposing discipline is final and appealable to the United States Court of Appeals for the Ninth Circuit. If disbarment, suspension, or public censure is imposed, the clerk of court must notify the clerk of the Court of Appeals for the Ninth Circuit and the disciplinary authorities in the jurisdictions in which the attorney is admitted to practice.

(5) Reinstatement.

(A) Time for Petition.

(i) Any disbarred attorney may seek reinstatement at the expiration of the term specified in the order imposing disbarment or within ten years of entry of the order, whichever comes first.

(ii) Any attorney on suspension or probation may seek reinstatement after the attorney has served one-half the total term imposed.

(iii) If the attorney was disbarred, suspended, or placed on probation under subsection (2) of this rule, the attorney may seek reinstatement when the jurisdiction originating discipline recognizes a change in the attorney's status.

(B) A petition for reinstatement must be filed with the clerk of court. The attorney must demonstrate qualification and fitness to practice law. The petition must be supported by competent evidence and the attorney may request an evidentiary hearing.

(C) The Disciplinary Judge will hear the petition. Any expenses incurred by the court may be assessed against the attorney regardless of the decision.

(D) The Disciplinary Judge may order full or conditional reinstatement or deny reinstatement.

(E) The clerk of court must notify the clerk of the court of Appeals for the Ninth Circuit and the disciplinary authorities in the jurisdictions in which the attorney is admitted to practice of full or conditional reinstatement.