In re Engel

• Decision Date: 17 June 2008
• Docket Number: No. 05-174.,05-174.
• Citation: 194 P.3d 613,344 Mont. 219,2008 MT 215
• Parties: In the Matter of Joseph ENGEL, III, An Attorney at Law. Respondent.
• Court: Montana Supreme Court

194 P.3d 613

2008 MT 215

344 Mont. 219

In the Matter of Joseph ENGEL, III, An Attorney at Law. Respondent.

No. 05-174.

Supreme Court of Montana.

June 17, 2008.

OPINION AND ORDER

BRIAN MORRIS, Justice.

¶ 1 Respondent Joseph Engel, III (Engel) filed an objection to the Orders and Opinions rendered in In re Engel, 2007 MT 172, 338 Mont. 179, 169 P.3d 345 [hereinafter Engel I], and In re Engel, 2008 MT 42, 341 Mont. 360, 177 P.3d 502 [hereinafter Engel II]. Our Order of March 13, 2008, directed Engel and the Office of Disciplinary Counsel (ODC) to file briefs addressing the Court's subject matter jurisdiction to impose a discipline upon Engel. Engel and ODC filed their briefs and we now deny Engel's petition.

¶ 2 We determined in Engel I that Engel had violated Rules 1.5, 1.15, and 1.18, of the Montana Rules of Professional Conduct (MRPC). Engel I, ¶ 48. In Engel II, we declined to follow the recommendation of the Commission on Practice of the Supreme Court of the State of Montana (the Commission) that Engel's discipline be limited to a public censure and the cost of the disciplinary proceedings. Engel II, ¶ 2. We instead determined that Engel's conduct also warranted a sixty-day suspension from practice. Engel II, ¶ 38. We directed Engel to appear before the Court on March 18, 2008, for administration of the public censure and further directed that Engel's sixty-day suspension would commence as of the date of the public censure. Engel II, ¶¶ 36, 38.

¶ 3 Engel filed a motion for leave to file a petition for withdrawal of opinions in Engel I and Engel II, dismissal, and a request for oral argument. Engel alleged that the process by which the Court has reviewed his disciplinary proceeding has deprived the Court of subject matter jurisdiction over the formal complaint filed by ODC against Engel. Engel also raises procedural due process issues. ODC filed a brief in opposition to Engel's motion. We vacated Engel's scheduled public censure and directed the parties to file briefs addressing the issue of the Court's subject matter jurisdiction.

STANDARD OF REVIEW

¶ 4 Whether a court possesses subject matter jurisdiction presents a question of law. We review a fact finder's conclusions of law to determine whether they are correct. Boe v. Court Adm'r for the Mon. Jud. Branch, 2007 MT 7, ¶ 5, 335 Mont. 228, ¶ 5, 150 P.3d 927, ¶ 5. Whether a party has been denied a due process right presents a constitutional law question. We exercise plenary review of constitutional law questions. State v. Racz, 2007 MT 244, ¶ 13, 339 Mont. 218, ¶ 13, 168 P.3d 685, ¶ 13.

DISCUSSION

¶ 5 The Court finds it difficult to square Engel's subject matter jurisdiction argument with the nature of the Court's role in the attorney discipline system. As we have noted on several occasions, this Court "`possesses original and exclusive jurisdiction and responsibility'" in all matters involving the disciplining of lawyers in the state of Montana. See In re Potts, 2007 MT 81, ¶ 31, 336 Mont. 517, ¶ 31, 158 P.3d 418, ¶ 31 (quoting Introduction, Montana Rules for Lawyer Disciplinary Enforcement (MRLDE)); Engel I, ¶ 18 (same); In re Potts, 2007 MT 236, ¶ 14, 339 Mont. 186, ¶ 14, 171 P.3d 286, ¶ 14 (same); and Engel II, ¶ 3 (same).

¶ 6 This authority derives from the 1972 Montana Constitution. Article VII, Section 2(3) provides that the Court may make rules governing "admission to the bar and the conduct of its members." Moreover, the regulation of lawyers in Montana "is a matter peculiarly within the inherent powers of this Court, subject, of course, to constitutional guaranties...." Goetz v. Harrison, 153 Mont. 403, 404, 457 P.2d 911, 912 (1969). Rule 7, MRLDE, further provides that any lawyer admitted to practice in the State of Montana "is subject to the disciplinary jurisdiction of the Supreme Court of the State of Montana." Engel challenges only the process by which the Court came to review the complaint against him.

¶ 7 A brief review of that process is in order. Rule 11(5), MRLDE, empowers the Commission to request that ODC prepare and file a formal complaint. See also Rule 3(B)(5), MRLDE. At the request of a review panel of the Commission, ODC filed a formal complaint against Engel on March 25, 2005. Once ODC initiated the formal disciplinary proceeding, the Commission's authority ended to resolve the complaint against Engel without a review by the Court. For example, Rule 13, MRLDE, allows the Commission, in its discretion, to give a lawyer a private admonition "in the name of the Supreme Court...." Rule 13, MRLDE, limits the Commission's discretion, however, to "any time before initiation of formal disciplinary proceedings...." ODC filed a formal complaint at the Commission's request and thereby triggered the Court's review of any disposition of the complaint against Engel.

¶ 8 The complaint proceeded through a hearing. An adjudicatory panel of the Commission issued findings of fact, conclusions of law, and a recommendation on November 16, 2006. The Commission recommended that the complaint against Engel be dismissed. Rule 12(C)(3), MRLDE, authorizes the Commission to recommend "for discipline or other disposition ..." of formal complaints. See also Rule 4(B)(2), MRLDE. The Commission opted for the "other disposition" in the form of recommending that the complaint be dismissed. Engel makes no complaint of the process afforded to him through that point. Engel challenges what happened next.

¶ 9 Engel contends that the disciplinary process should have ended upon the Commission recommending that the complaint be dismissed. He points to the fact that Rule 16, MRLDE, contemplates that the Court's review of the Commission's proceeding will be limited to a recommendation of discipline. The Commission recommended no discipline here, and, therefore, Engel contends that the Court has no power to review the Commission's proposed disposition. Engel correctly notes that Rule 16, MRLDE, first discusses serving the lawyer with a copy of the Commission's "recommendation of discipline. ..." This service provides the lawyer with the chance to file any objections to the Commission's recommendation. Rule 16, MRLDE. Rule 16 makes no provision for ODC filing an objection to the Commission's recommendation.

¶ 10 Rule 16 provides, however, that the Court "shall determine the appropriate discipline, if any, authorized by these rules" upon expiration of the time for the lawyer filing an objection to the Commission's recommendation. Rule 16 further provides that the Court "shall consider the matter, issue its written decision, and impose such discipline if any, as it considers appropriate." (Emphasis added). Thus, Rule 16 imposes two limitations on the Court's power to impose discipline: (1) discipline authorized by the rules; and (2) discipline that the Court considers appropriate. The Court determined that a public censure, sixty-day suspension, and imposition of the costs of the proceedings against Engel would constitute the appropriate discipline. Rule 9, MRLDE, specifically authorizes suspension, public censure, and imposition of the costs of the proceedings as appropriate forms of discipline.

¶ 11 The directive in Rule 12(C)(3) that the Commission shall make "a recommendation to the Supreme Court for discipline or other disposition of the case" further undermines Engel's claim that the Commission's dismissal recommendation should have ended the case. The Commission elected to recommend for "other disposition" in the form of the dismissal of the complaint against Engel. The Commission's authority stops upon making a recommendation of a proposed disposition. The Court retains the ultimate authority to determine the appropriate discipline. Rule 16, MRLDE.

¶ 12 Engel relies largely on cases where a court reversed disciplinary charges where some sort of procedural due process violation had infected the proceedings. In Disciplinary Counsel v. Simecek, 83 Ohio St.3d 320, 699 N.E.2d 933, 934 (1998), the Ohio Supreme Court upheld three misconduct charges against a lawyer, but dismissed three others. The dismissed charges stemmed from the determination of a disciplinary panel that the lawyer's conduct violated not only the three charges originally contained in the complaint, but that the lawyer's conduct also violated three additional provisions of the disciplinary rules not contained in the complaint. The court refused to condone what it deemed to be a serious violation of the lawyer's right to procedural due process. Simecek, 699 N.E.2d at 934-35.

¶ 13 The court in Simecek analogized the procedural due process violation to the one addressed in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Engel also relies upon Ruffalo. The lawyer disciplinary board in Ruffalo added a misconduct charge after it had heard the testimony against a lawyer. The Court stated that a lawyer in a disciplinary proceeding is "entitled to procedural due process, which includes fair notice of the charge." Ruffalo, 390 U.S. at 550, 88 S.Ct. at 1226. The charge must be known before the proceedings begin to avoid laying a trap for the accused. The Court held that the absence of fair notice "as to the reach of the grievance procedure and the precise nature of the charges ..." had deprived the lawyer of procedural due process. Ruffalo, 390 U.S. at 552, 88 S.Ct. at 1226.

¶ 14 The proceedings against Engel suffer from no similar infirmity. ODC filed the formal complaint against Engel. ODC's original complaint alleged that Engel had committed four counts of professional misconduct. Engel I, ¶ 15. At no time did ODC or the Commission add new charges of misconduct. Engel takes issue, however, with the fact that the Commission determined that no clear and convincing evidence supported the allegations in ODC's complaint. The Commission initially had recommended that this Court dismiss the complaint. Engel I, ¶ 17. Engel contends that the proceedings should have ended upon the...