In re Best
| Citation | 229 P.3d 1201,355 Mont. 365,2010 MT 59 |
| Decision Date | 23 March 2010 |
| Docket Number | No. OP 10-0005.,OP 10-0005. |
| Parties | In the Matter of Elizabeth A. BEST and The Rules of Professional Conduct and Rules for Lawyer Disciplinary Enforcement and Private Admonitions: Elizabeth A. Best, Best Law Offices, P.C., Petitioner. |
| Court | Montana Supreme Court |
¶ 1 On January 7, 2010, Elizabeth Best filed with this Court a Petition for Original Jurisdiction and Application for Injunctive and Declaratory Relief wherein she contended that the attempt by the Commission on Practice (the COP) to discipline her with a private admonition was a violation of her rights to due process, to equal protection, to know and participate in government, and to free speech. By order dated January 12, 2010, we directed the COP to vacate the private admonition which was scheduled to occur on January 21, 2010, and we stayed all further proceedings pending our decision in this matter. In addition, we granted the COP time to respond to Best's petition. Thereafter, we granted the Office of Disciplinary Counsel (the ODC) time to respond to the petition and we allowed Best time to file a reply to the COP's response.
¶ 2 Having now carefully reviewed the petition, the responses, the reply and the associated appendices, we conclude that the dispositive issues in this case are: (1) whether we should accept jurisdiction of Best's petition, (2) if we accept jurisdiction, whether the COP violated Best's right to due process, and (3) whether the COP can, sua sponte, charge a lawyer with a violation of the Montana Rules of Professional Conduct (M.R.P.C.) outside of any violation alleged in a complaint or report by the ODC.
¶ 3 Best filed a lawsuit in June 2008 on behalf of Dr. Elaine Samuel against a Montana hospital (the Hospital) alleging, inter alia, that a restrictive covenant contained in Dr. Samuel's employment contract with the Hospital was void as contrary to public policy. Best alleges in her petition before this Court that after the lawsuit was filed, several of Dr. Samuel's colleagues encouraged Dr. Samuel to join the Montana Medical Association (the MMA) as well as the American Medical Association (the AMA) because both organizations oppose restrictive covenants, and because either or both organizations might be interested in participating in the case as amici or in sharing the costs of litigation. Dr. Samuel joined the MMA in December 2008.
¶ 4 Best further alleges that around the time that Dr. Samuel joined the MMA, Dr. Samuel informed Best that the attorneys representing the Hospital in her case also represented the MMA. Best contends that as part of discovery and trial preparation, she learned that the MMA and the AMA oppose restrictive covenants. Seeing this as a potential positional conflict on the part of the Hospital's attorneys, Best wrote them to point out the problem. The Hospital's attorneys wrote back providing only the ODC's address.
¶ 5 Thereafter, Best wrote to the ODC to report the potential conflict and enclosed both her letter to the Hospital's lawyers and their response. Best notes in her petition that she believed it was her duty to do so under M.R.P.C. 8.3 (Reporting Professional Misconduct) and this Court's decisions in Schuff v. A.T. Klemens & Son, 2000 MT 357, 303 Mont. 274, 16 P.3d 1002, and In re Engel (Engel I), 2008 MT 42, 341 Mont. 360, 177 P.3d 502.
¶ 6 By letter dated January 6, 2009, the ODC dismissed Best's complaint after determining that there was no conflict. The ODC noted that because the Hospital's attorneys "represent the association and not the individual members," the pending litigation between Dr. Samuel and the Hospital did not involve the MMA. Best did not appeal this decision.
¶ 7 Prior to her receipt of the ODC's decision, Best had written to the MMA seeking assistance with Dr. Samuel's case against the Hospital, ostensibly because of the broad significance of the issues in the case to the medical profession. In her letter to the MMA, Best pointed out that it was her understanding that the Hospital was represented by the same attorneys that represent the MMA.
¶ 8 On April 2, 2009, the Hospital's attorneys filed a complaint with the ODC against Best asserting that Best sent the letter to the MMA for the purposes of causing the Hospital's attorneys "difficulties in their relationship with the MMA." They also alleged that because Dr. Samuel joined the MMA the very same day that Best mailed her letter accusing the Hospital's attorneys of a conflict of interest, Best and Dr. Samuel had "contrived a conflict of interest ... for the purpose of harassing and intimidating" the Hospital's attorneys. Specifically, the complaint accused Best of violating M.R.P.C. 3.1 (Meritorious Claims and Contentions), 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 4.1 (Truthfulness in Statement to Others).
¶ 9 The ODC investigated the complaint against Best and presented it to the COP's Review Panel with the recommendation that the complaint be dismissed with a letter of caution. On September 28, 2009, the Review Panel considered the matter and agreed that the allegations against Best of violations of M.R.P.C. 3.1, 3.3, 3.4, and 4.1 should be dismissed. However, the Review Panel concluded that the undisputed evidence clearly and convincingly proved that Best sought to interfere with the attorney-client relationship between the Hospital's attorneys and the MMA, thereby violating M.R.P.C. 4.2 (Communication with Person Represented by Counsel). The Review Panel recommended a private admonition.
¶ 10 Thereafter, the Adjudicatory Panel of the COP reviewed the matter and also determined that Best violated M.R.P.C. 4.2. The Adjudicatory Panel approved the Review Panel's recommendation of a private admonition.
¶ 11 On December 22, 2009, the COP issued an Order to Appear stating that it had reviewed the complaint and the report from the ODC and that it had found "just cause" for a private admonition of Best under Rule 13 of the Montana Rules for Lawyer Disciplinary Enforcement (RLDE) (2002). The order directed Best to appear on January 21, 2010, for the admonition. Best's petition to this Court followed.
¶ 12 Whether this Court should accept jurisdiction of Best's petition.
¶ 13 Best requests that we assume jurisdiction of this original proceeding because the regulation of the practice of law is exclusively within the jurisdiction of this Court, the issues presented are of statewide importance, and there is no other adequate or speedy remedy. As Best notes in her petition, the preamble to the RLDE provides the following:
The Supreme Court of the State of Montana... declares that it possesses original and exclusive jurisdiction and responsibility under Article VII, Section 2(3), of the 1972 Montana Constitution and the provisions of Chapter 61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all matters involving admission of persons to practice law in the State of Montana, and the conduct and disciplining of such persons. Emphasis added.
¶ 14 Article VII, Section 2(3) of the Montana Constitution provides that this Court "may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members." Thus, this Court has a "constitutional mandate to fashion and interpret the Rules of Professional Conduct." In re Rules of Professional Conduct, 2000 MT 110, ¶ 9, 299 Mont. 321, 2 P.3d 806.
¶ 15 In addition, we have determined that "the regulation of lawyers in Montana `is a matter peculiarly within the inherent power of this Court, subject, of course, to constitutional guarantees....'" In re Engel (Engel II), 2008 MT 215, ¶ 6, 344 Mont. 219, 194 P.3d 613, cert. denied, ___ U.S. ___, 129 S.Ct. 619, 172 L.Ed.2d 456 (2008) (quoting Goetz v. Harrison, 153 Mont. 403, 404, 457 P.2d 911, 912 (1969)).
¶ 16 Furthermore, this Court has the authority to entertain original proceedings and to exercise supervisory control under Article VII, Section 2 of the Montana Constitution and M.R.App. P. 14(3) and (4) (formerly M.R.App. P. 17(a)). See Inter-Fluve v. Eighteenth Jud. Dist. Court, 2005 MT 103, ¶ 17, 327 Mont. 14, 112 P.3d 258; Plumb v. Fourth Jud. Dist. Court, 279 Mont. 363, 369, 927 P.2d 1011, 1015 (1996). In Plumb, we recognized that original jurisdiction may be exercised where constitutional issues of major statewide importance are involved; where the case involves purely legal questions of statutory and constitutional construction; and where urgency and emergency factors make the normal appeal process inadequate. Plumb, 279 Mont. at 369, 927 P.2d at 1015. It is not necessary for all three circumstances to be present for this Court to exercise jurisdiction. Plumb, 279 Mont. at 369, 927 P.2d at 1015.
¶ 17 Best was ordered to appear before the COP on January 21, 2010, for a private admonition. That order stated that the COP, in making its determination, considered the complaint and the report prepared by the ODC. However, as Best noted in her petition to this Court, she was denied access to the ODC's report and recommendation, and neither the ODC nor the COP identified the conduct or the rule which they claim she violated. Indeed, Best was not made aware of the actual reason for the disciplinary action to be taken against her until the COP filed its response to her petition before this Court.
¶ 18 As Best stated in her petition,
¶ 19 We agree with Best that this case involves issues of major statewide importance and we accept jurisdiction of her petition.
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