In re Neuhardt
| Decision Date | 01 April 2014 |
| Docket Number | No. PR 13–0070.,PR 13–0070. |
| Citation | 321 P.3d 833,374 Mont. 379 |
| Court | Montana Supreme Court |
| Parties | In the Matter of Solomon NEUHARDT, an Attorney at Law, Respondent. |
OPINION TEXT STARTS HERE
¶ 1 On January 25, 2013, the Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint under this cause number against Montana attorney Solomon Neuhardt. The complaint involves Neuhardt's concurrent representation of both Tommy Vasquez and Vasquez's then-wife Adrian Christenson during a federal investigation of methamphetamine distribution in the Billings, Montana, area. The disciplinary complaint and all other documents filed in this matter may be reviewed by any interested persons in the office of the Clerk of this Court.
¶ 2 ODC alleged violations of Rules 1.7, 1.9, 8.4(c), 8.4(d), and 8.1(a) of the Montana Rules of Professional Conduct (MRPC), arising out of Neuhardt's joint representation of Vasquez and Christenson. The Commission on Practice held a hearing on the complaint on July 17, 2013, and on October 17, 2013, at which hearing Neuhardt was present with counsel and testimony was presented. On December 5, 2013, the Commission submitted to this Court its findings of fact, conclusions of law, and recommendation for discipline.
¶ 3 Both parties have filed objections to the Commission's decision. We restate the following issues for review:
1. Was the testimony of ODC witness Bryan Norcross properly stricken from the record?
2. Did ODC prove by clear and convincing evidence that Neuhardt violated Rule 1.7, MRPC?
3. Did ODC prove by clear and convincing evidence that Neuhardt violated Rule 1.9, MRPC?
4. What is the appropriate discipline for the established violations?
¶ 4 At the hearing before the Commission on Practice, ODC called as a witness Yellowstone County Deputy Sheriff Frank Fritz (Fritz), whose testimony established the following. On the morning of June 22, 2007, in Billings, Neuhardt accompanied his client, Adrian Christenson (Christenson), to a law enforcement interview conducted by members of a joint drug and gang task force called Big Sky Safe Streets Task Force (Task Force). The Task Force included Fritz and comprised local, state, and federal law enforcement agents. The target of the investigation was Tommy Vasquez (Vasquez). Vasquez and Christenson, at that time, were husband and wife. Christenson was considered a confidential witness in the investigation and her identity as a witness was protected by law enforcement because she was related to Vasquez. Christenson received her Miranda warnings, signed a Miranda waiver, and Neuhardt signed the waiver as her attorney. Fritz testified that Christenson told the Task Force during this interview that Vasquez was dealing methamphetamine. Fritz additionally explained that the information the Task Force received from Christenson was used to further the investigation into Vasquez's drug distribution. According to Fritz, Christenson gave the task force information that helped in the subsequent prosecution of Vasquez. Fritz indicated that Christenson had “ratted him [Vasquez] out.”
¶ 5 Later in the evening on June 22, 2007, Neuhardt accompanied Vasquez to an interview with the Task Force. Vasquez signed a Miranda waiver, which Neuhardt acknowledged as Vasquez's counsel. Fritz testified that the Task Force used the information it received from Christenson to interview Vasquez. During this interview, Fritz testified that Vasquez incriminated himself in methamphetaminepossession and distribution and that the information Vasquez gave furthered the investigation against Vasquez. Vasquez's information previously had been corroborated by Christenson. Neuhardt was present during both interviews as counsel for Christenson and Vasquez.
¶ 6 One year later, on August 11, 2008, Neuhardt accompanied Christenson to a second interview with the Task Force. Fritz testified that Christenson executed a Miranda waiver which Neuhardt acknowledged as her counsel. During this interview, the Task Force learned from Christenson that Vasquez was the main supplier of methamphetamine in Billings and that he possessed firearms. At the conclusion of the interview, Neuhardt advised the Task Force that he was no longer representing Vasquez.
¶ 7 ODC presented documentary evidence to the Commission establishing that on August 12, 2008, the day following Christenson's second interview with the Task Force, Neuhardt filed a petition on Christenson's behalf for dissolution of her marriage to Vasquez. On September 5, 2008, Neuhardt sent a letter to Vasquez's real estate agent, with a copy of the dissolution petition and restraining order, indicating that Vasquez was not allowed to transfer real property.
¶ 8 Neuhardt did not obtain an informed waiver of any actual or potential conflict from Christenson or Vasquez in either of the interviews held on June 22, 2007, or August 11, 2008.
¶ 9 On September 17, 2008, an Indictment was filed in United States District Court charging Vasquez with distribution of methamphetamine and numerous firearms violations. Count I charged that in January of 2007, and continuing to present, Vasquez distributed methamphetamine. Counts II through V charged additional drug and firearms violations, alleged to have occurred on or about April 22, 2008. On May 26, 2009, a Superseding Indictment was filed adding a forfeiture count and another count charging distribution on or about September 18, 2008.
¶ 10 Vasquez pleaded guilty to Count II of the Superseding Indictment, which charged that on April 22, 2008, he distributed methamphetamines. At the time of Vasquez's guilty plea, he was represented by defense counsel Bryan Norcross. Vasquez received a twenty-year prison sentence, followed by six years of supervised release.
¶ 11 The Commission also heard testimony from Norcross. Upon objection by Neuhardt's counsel, the Commission struck Norcross's testimony that Christenson's statement to law enforcement substantially harmed and compromised Vasquez's defense.
¶ 12 Neuhardt acknowledged that Christenson implicated Vasquez in illegal drug dealing during her 2007 interview, but claimed that the husband and wife both had agreed to cooperate with the investigation at that time. Neuhardt pointed out in cross-examination of Fritz that Vasquez had “rat[ted] himself out” during the 2007 interview. Neuhardt argued that the only way Vasquez was going to avoid life in prison was to cooperate and that it was in Vasquez's and Christenson's joint interests to provide full information to law enforcement during the 2007 interview. Neuhardt pointed out further that Vasquez was never convicted of any offenses described in the 2007 interview.
¶ 13 Neuhardt testified that Christenson's interview on August 11, 2008, was in her and Vasquez's best interests, given the earlier interviews in 2007. The Commission found that Neuhardt was evasive in his testimony and claimed to have very little recall of the events. Although ODC received Vasquez's complaint against Neuhardt on March 23, 2009, Neuhardt apparently disposed of his files, having no information that the Vasquez complaint was still under investigation.
¶ 14 In its findings, conclusions, and recommendations, the Commission concluded that ODC proved by clear and convincing evidence that Neuhardt violated Rule 1.7, MRPC, by engaging in a concurrent conflict of interest on June 22, 2007, when he represented both Vasquez and Christenson, despite Christenson's potential adversity to Vasquez and the significant risk that his representation of Christenson would materially prejudice his representation of Vasquez. The Commission concluded, however, that ODC did not prove by clear and convincing evidence that Neuhardt's dual representation of Vasquez and Christenson prejudiced Vasquez's defense of subsequent criminal charges or that it prejudiced either client in connection with events in 2007. The Commission further concluded that ODC failed to prove by clear and convincing evidence that Neuhardt violated Rule 1.9 or Rule 8.4(d), MRPC, by engaging in a conflict of interest with his then-former client Vasquez on August 11, 2008, when he represented Christenson during the subsequent law enforcement interview. Finally, the Commission concluded that Neuhardt's less-than-candid initial response to ODC regarding Vasquez's informal complaint against him violated Rules 8.1(a) and 8.4(c), MRPC.
¶ 15 The Commission recommends that, as a result of these violations of the Montana Rules of Professional Conduct, Neuhardt should be publicly admonished by this Court and be suspended from the practice of law in Montana for 90 days. The Commission also recommends that Neuhardt be ordered to pay the costs of these proceedings.
¶ 16 This Court possesses “original and exclusive jurisdiction and responsibility” in all matters involving the disciplining of attorneys in Montana. See Introduction, Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). As a result, our review of the Commission's findings of fact, conclusions of law, and recommendations is de novo. In re Potts, 2007 MT 81, ¶ 32, 336 Mont. 517, 158 P.3d 418. “Our duty includes weighing the evidence upon which the Commission's findings rest.” Potts, ¶ 32. Matters of trial administration are reviewed for abuse of discretion. Blanton v. Dep't of Pub. HHS, 2011 MT 110, ¶ 22, 360 Mont. 396, 255 P.3d 1229. Further, despite our duty to weigh the evidence, Potts, ¶ 32.
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