Com'n On Unauthorized Practice v. O'Neil

• Decision Date: 08 November 2006
• Docket Number: No. 04-857.,04-857.
• Parties: MONTANA SUPREME COURT COMMISSION ON the UNAUTHORIZED PRACTICE OF LAW, Petitioner and Respondent, v. Jerry O'NEIL, on Behalf of Himself, His Clients, and His Constituents, Respondent and Appellant, v. The Montana State Bar Association, Defendant and Respondent.
• Court: Montana Supreme Court

Page 200

147 P.3d 200

2006 MT 284

334 Mont. 311

MONTANA SUPREME COURT COMMISSION ON the UNAUTHORIZED PRACTICE OF LAW, Petitioner and Respondent, v. Jerry O'NEIL, on Behalf of Himself, His Clients, and His Constituents, Respondent and Appellant, v. The Montana State Bar Association, Defendant and Respondent.

No. 04-857.

Supreme Court of Montana.

Submitted on Briefs April 5, 2006.

Decided November 8, 2006.

Rehearing Denied December 6, 2006.

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For Appellant: Jerry O'Neil (pro se), Columbia Falls, Montana.

For Respondent Montana Supreme Court Commission on the Unauthorized Practice of Law: David A. Hawkins, Attorney at Law, Helena, Montana.

For Respondent Montana State Bar Association: Stephen C. Berg, Johnson, Berg, McEvoy & Bostock, Kalispell, Montana, Betsy Brandborg, Attorney at Law, Helena, Montana.

For Amicus Curiae: The Honorable Mike McGrath, Montana Attorney General, Anthony Johnstone, Assistant Attorney General, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The Montana Supreme Court Commission on the Unauthorized Practice of Law (the Commission) filed a Petition for Finding Civil Contempt and for Permanent Injunction against Jerry O'Neil (O'Neil). O'Neil filed a counterclaim against the Commission along with a third-party complaint against the State Bar of Montana (the Bar)¹ alleging defamation, tortious interference with contract and violation of his, his customers' and his constituents' rights to privacy. Prior to trial, the District Court for the Eleventh Judicial District, Flathead County, granted the Bar's Motion for Summary Judgment on O'Neil's third-party complaint against the Bar. The court also granted the Commission's Motion for Summary Judgment on O'Neil's counterclaim against the Commission, but denied the Commission's Motion for Summary Judgment on the issue of whether O'Neil engaged in the unauthorized practice of law. Following a bench trial, the court entered its Judgment and Permanent Injunction finding O'Neil in contempt and enjoining him from practicing law.

¶ 2 O'Neil appeals the District Court's judgment as well as the court's grants of summary judgment to the Commission and to the Bar. O'Neil also challenges the constitutionality of §§ 37-61-201 and -210, MCA. We affirm.

¶ 3 We address the following issues on appeal:

¶ 4 1. Whether O'Neil's third-party complaint against the Bar was timely filed.

¶ 5 2. Whether the District Court erred in granting the Bar's and the Commission's Motions for Summary Judgment.

¶ 6 3. Whether the District Court abused its discretion in denying O'Neil a jury trial.

¶ 7 4. Whether §§ 37-61-201 and -210, MCA, are constitutional as applied by the District Court.

¶ 8 5. Whether the District Court erred in finding that O'Neil engaged in the unauthorized practice of law.

Factual and Procedural Background

¶ 9 O'Neil is not, and never has been, licensed to practice law in the State of Montana. He has not attended law school; he has not sat for the Montana bar examination; and he has not met the Montana Supreme Court's character and fitness requirements. O'Neil is not licensed to practice law in any state of the United States. O'Neil served as a Montana State Senator in the 2001, 2003 and 2005 legislative sessions.

¶ 10 O'Neil advertised in the Greater Flathead Valley CenturyTel telephone book as an "independent paralegal" under the "Attorney" heading in the yellow pages. The advertisement included the statements that he is "Licensed to Practice Law in Blackfeet Tribal Court" and that he is a "MEMBER: Child & Family Section of the Montana State Bar."

¶ 11 On February 13, 2001, Eleventh Judicial District Court Judges Ted Lympus, Katherine Curtis and Stewart Stadler wrote the Commission to complain that O'Neil may be engaged in the unauthorized practice of law. The Judges asked the Commission to investigate O'Neil's actions.

¶ 12 The Commission had received other information prior to this time to the effect that O'Neil's actions may constitute the unauthorized practice of law. In June 1998, Judge Lympus wrote to then Montana Supreme Court Chief Justice J.A. Turnage concerning O'Neil's efforts to represent one of the parties in a dissolution proceeding before the District Court. In February and March 2000, a social worker with Adult Protective Services complained to the Commission that O'Neil was attempting to offer legal advice to an incapacitated individual for whom the social worker was acting as a guardian. O'Neil was purportedly acting on behalf of the incapacitated individual's ex-wife, against whom a restraining order had been issued. In January 2001, a member of the Commission received a transcript sent at the request of Sixteenth Judicial District Court Judge Joe Hegel. The transcript reflected that O'Neil assisted one of the parties in a dissolution proceeding by preparing dissolution materials.

¶ 13 On May 16, 2001, Commission Chair John Connor wrote O'Neil asking for a detailed description of the services O'Neil provided and the duties that he performed on behalf of his customers. In his letter, Connor warned O'Neil that if he was engaged in the unauthorized practice of law, he may be subject to civil complaint and criminal prosecution. O'Neil's reply acknowledged Connor's request for information, but failed to actually provide the requested information. Connor sent a second letter to O'Neil on September 28, 2001, informing him that the Commission would be conducting an investigation to determine whether O'Neil was engaged in the unauthorized practice of law. In his October 9, 2001 reply, O'Neil engaged in a tirade against the Commission stating, "If your object is to try me without a jury, you had better bring along your chains and restraints."

¶ 14 On April 25, 2002, Connor again wrote O'Neil explaining that, based upon its investigation to date, the Commission had determined that there was probable cause to believe that O'Neil was engaged in the unauthorized practice of law. In his letter, Connor directed O'Neil to cease and desist from all such activities. Connor further stated that if the Commission did not receive a written assurance of compliance from O'Neil, it would pursue appropriate legal action against him.

¶ 15 Because O'Neil failed to provide the written assurance requested, the Commission filed its Petition for Finding of Civil Contempt and for Permanent Injunction on July 15, 2002. The Prayer for Relief requested that O'Neil be found in civil contempt for engaging in the unauthorized practice of law and that the District Court issue a permanent injunction prohibiting O'Neil from engaging in such conduct.

¶ 16 On November 19, 2002, O'Neil filed a counterclaim against the Commission and a third-party complaint against the Bar, alleging defamation, tortious interference with contract and violation of his, his customers' and his constituents' rights to privacy. O'Neil also demanded a jury trial. O'Neil's actions against the Bar and the Commission were based on the following facts.

¶ 17 On November 15, 2000, Bar general counsel Betsy Brandborg received a telephone call from Julia Thomason at U.S. West Dex asking if O'Neil was a licensed attorney and, if not, why he was listed under the "Attorney" heading in the Yellow Pages. Brandborg explained that O'Neil was not a licensed attorney with the Bar. Thomason requested a letter confirming that information and suggested that Brandborg also request that O'Neil's name be removed from the "Attorney" section of the Yellow Pages. Brandborg wrote the following letter and sent a copy to O'Neil:

I have noticed that Jerry O'Neil's "Independent Paralegal" advertisement is included under the attorney listing in the yellow pages. Jerry O'Neil is not an attorney. In spite of his representation to the contrary, Jerry O'Neil is not a member of the State Bar of Montana. I request that you remove Jerry O'Neil's listing from the attorney section of the yellow pages.

¶ 18 On November 23, 2000, O'Neil wrote a letter in reply claiming that he was an attorney duly licensed by the Blackfeet Tribal Court and the Confederated Salish and Kootenai Tribal Court (CS & K Tribal Court). Upon receiving this information, Brandborg called the CS & K Tribal Court and learned that while O'Neil was licensed as an attorney in that court, they had based that licensure upon O'Neil's representation that he was licensed as an attorney in the Blackfeet Tribal Court. Brandborg next called the Blackfeet Tribal Court and learned that O'Neil was a licensed lay advocate with that court, not an attorney. Thereafter, Brandborg called the CS & K Tribal Court and conveyed the information she had obtained from the Blackfeet Tribal Court that O'Neil was not a licensed attorney with that court. The CS & K Tribal Court subsequently terminated O'Neil's license to practice before that court.

¶ 19 Brandborg wrote a second letter to Thomason at U.S. West Dex, dated December 5, 2000, to clarify the Bar's position. This letter read in pertinent part:

As I indicated earlier, Jerry O'Neil is not an attorney, i.e., he has not given the State Bar of Montana any information indicating that he has graduated from an ABA accredited law school, taken Montana's bar examination, or been admitted to the State Bar of Montana as a member of the State Bar of Montana. Mr. O'Neil is an associate member of the Family Law Section of the State Bar of Montana. In accord with Article 1, Section 3 of our bylaws, the fact of Mr. O'Neil's associate membership with the Family Law Section does not mean Mr. O'Neil can claim membership in the State Bar of Montana.

As to Mr. O'Neil's status with the Tribal Courts, it is appropriate for your business to check with them. . . .

Brandborg did not convey this letter or the November 15, 2000 letter to the Tribes nor did she write to either Tribe confirming the information in the telephone calls.

¶ 20 On September 10, 2004...