In re Potts

• Decision Date: 18 September 2007
• Docket Number: No. 04-562.,04-562.
• Citation: 2007 MT 236,171 P.3d 286,339 Mont. 186
• Parties: In the Matter of Steven T. POTTS, an Attorney at Law.
• Court: Montana Supreme Court

171 P.3d 286

2007 MT 236

339 Mont. 186

In the Matter of Steven T. POTTS, an Attorney at Law.

No. 04-562.

Supreme Court of Montana.

September 18, 2007.

OPINION AND ORDER

¶ 1 Respondent Steven T. Potts (Potts), an attorney licensed to practice law in the State of Montana, objects to the Statement of Costs filed by the Office of Disciplinary Counsel (ODC) on May 29, 2007, stemming from the disciplinary proceeding against Potts before the Commission on Practice of the Supreme Court of the State of Montana (the Commission). Potts also requests a hearing before an Adjudicatory Panel pursuant to Rule 9(A)(8), Montana Rules for Lawyer Disciplinary Enforcement (MRLDE), and this Court's decision in In re Potts, 2007 MT 81, 336 Mont. 517, 158 P.3d 418. We deny Potts's objections to ODC's Statement of Costs. We grant Potts's request for a hearing before an Adjudicatory Panel regarding the reasonableness of ODC's costs.

¶ 2 Potts misapprehends the scope and application of the MRLDE. He suffers from the misimpression that M.R.App. P. 33 and related Montana statutes control the issue of costs imposed as part of the discipline and sanction by the Court for Potts's violation of various provisions of the Montana Rules of Professional Conduct (MRPC). We take this opportunity to disabuse Potts, specifically, and all members of the Bar, generally, of the proper application and interpretation of the MRLDE.

¶ 3 The Commission entered its Findings of Fact, Conclusions of Law, and Recommendations on January 5, 2006, regarding a complaint filed against Potts. The Commission concluded that Potts violated Rules 1.2(d) and 3.3(a)(2) of the MRPC during his representation of heirs in a will contest. The Commission recommended that this Court publicly censure Potts and suspend him from the practice of law for a period of thirty days. The Commission further recommended that the Court order Potts to pay the "costs of these proceedings."

¶ 4 We adopted the Commission's Findings of Fact and Conclusions of Law, but we elected to revise the recommended discipline and sanction. Potts, ¶¶ 79-80. We chose to impose a public censure, without any suspension, along with the costs of the disciplinary proceedings before the Commission as the appropriate discipline and sanction for Potts's violation of the MRPC. Potts, ¶¶ 80 and 82. We censured Potts at a public session of this Court on May 2, 2007. Potts, ¶ 81. Potts chose not to make any statement to the Court at the censure; he instead elected to have his counsel address the Court. Potts's counsel assured the Court that Potts accepted the Court's decision.

¶ 5 We further directed ODC to assemble and serve upon Potts an itemized list of the costs and expenses incurred in this matter. Potts, ¶ 82. ODC filed its Statement of Costs on May 29, 2007. Potts's acceptance of the Court's decision at his public censure apparently did not include the Court's decision to impose costs as part of the discipline and sanction pursuant to Rule 9(A)(8), MRLDE. Potts timely filed his objection to the costs on June 8, 2007, and at the same time requested a hearing before an Adjudicatory Panel.

¶ 6 Potts presents the following objections to ODC's Statement of Costs:

¶ 7 1. That ODC failed to claim costs within a timely manner as required by § 25-10-501, MCA, and § 25-10-503, MCA; and

¶ 8 2. That ODC improperly included costs not contemplated by § 25-10-201, MCA.

BACKGROUND

¶ 9 Our order in Potts directed Potts to "pay, or make arrangements to pay, the costs of the proceedings before the Commission." Potts, ¶ 82. We further directed ODC to assemble and serve upon Potts an itemized lists of the "costs and expenses" incurred in this matter. Potts, ¶ 82. ODC assembled and served upon Potts its Statement of Costs on May 29, 2007.

¶ 10 ODC requested costs of $10,388.96, including $7,553.55 for ODC, and $2,835.41 for the Commission. ODC's requested costs include travel, lodging, and meals for ODC investigation in Great Falls and for the hearing in Great Falls before the Commission on July 27, 2005. ODC's requested costs also include the costs of depositions, fees for professional services provided by several lawyers, and copying charges. ODC's requested costs for the Commission include the transcript of the hearing and travel expenses to Great Falls for the hearing for participating Commission members.

DISCUSSION

¶ 11 Potts argues first that M.R.App. P. 33 governs costs in all civil cases. M.R.App. P. 33(d) provides that costs should be taxed pursuant to "Montana Code Annotated, sections 25-10-101, 25-10-102, 25-10-103, and 25-10-105." Section 25-10-501, MCA, and § 25-10-503, MCA, in turn, set forth the process by which a party may claim costs in a civil action at the district court and on appeal. Section 25-10-501, MCA, provides that a party must serve a bill of costs within five days after the decision of the district court. Section 25-10-503, MCA, provides a 30-day window in which a party must file a bill of costs on appeal. As a result, Potts contends that ODC had to claim costs within five days if the Court's review of the Commission's recommendation in Potts constituted an original proceeding, and within thirty days if the Court's review of the Commission's recommendation in Potts constituted an appeal.

¶ 12 Potts points to the fact that we issued our decision in Potts on March 22, 2007, and that ODC did not file its Statement of Costs until May 29, 2007. He suggests that our decision in Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 71, 293 Mont. 97, ¶ 71, 973 P.2d 818, ¶ 71, holds that ODC's untimely claim of costs waives its right to receive costs. Delaware simply stands for the proposition that a party must file a memorandum of costs within five days after the jury returns its verdict. Delaware, ¶ 66. Here, of course, ODC did not seek its costs following a jury trial. ODC instead filed its Statement of Costs as directed by the Court in Potts. Delaware, and its five-day rule, has no application.

¶ 13 ODC filed its memorandum in opposition on June 28, 2007. ODC counters that the time limits in § 25-10-501, MCA, and § 25-10-503, MCA, do not apply to disciplinary proceedings before the Commission. ODC argues instead that Rule 9(A)(8), MRLDE, controls the assessment of costs in disciplinary proceedings. We agree.

¶ 14 We declared in Potts that this Court "`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.'" Potts, ¶ 31 (quoting Introduction, MRLDE). We specifically adopted and promulgated the MRLDE in 2002 in the exercise of this jurisdiction. Introduction, MRLDE.

¶ 15 We rejected a similar attempt to limit the ability of the ODC to prosecute lawyer disciplinary complaints in In the Matter of Joseph Engel, III, 2007 MT 172, 338 Mont. 179, 169 P.3d 345. Engel argued that the MRLDE did not allow for our review of ODC's objection to the Commission's decision unless ODC first sought reconsideration of the Commission's decision under Rule 14, MRLDE. We explained, however, that Rule 14's limitation of our review to matters that had been reconsidered by the Commission did not apply to formal complaints submitted by ODC. Engel, ¶ 20. The apparent ambiguity cited by Engel originated out of the former disciplinary rules that existed before we made "global changes to the lawyer disciplinary system that became effective in July 2002." Engel, ¶ 20.

¶ 16 Potts misplaces reliance on M.R.App. P. 33 as the authority for including costs of the proceedings before the Commission as part of the discipline and sanction imposed against him. M.R.App. P. 33 generally governs costs in civil cases and focuses on costs being awarded to the "successful party" in the underlying litigation. Rule 9(A)(8), MRLDE, by contrast, specifically allows for the assessment of "the cost of the proceedings, investigations and audits" as a form of discipline and sanction to be imposed against the disciplined lawyer. We did not award "costs" to ODC as the "successful party" in the underlying litigation pursuant to M.R.App. P. 33. The Court instead imposed costs against Potts pursuant to Rule 9(A)(8), MRLDE, as part of the discipline and sanction against Potts for his violation of various provisions of the MRPC. Potts, ¶ 82.

¶ 17 Potts's argument founders when set against the plain language of Rule 9(A)(8) MRLDE, regarding the imposition of costs. Rule 9(A)(8), MRLDE, provides no time limit for the filing of a statement of costs by ODC. The only time limit imposed relates to the written objections filed by the lawyer who is the subject of the disciplinary proceedings. Our order in Potts likewise contains no time limit regarding the filing of the statement of costs by ODC. The order simply parrots the language in Rule 9(A)(8), MRLDE, regarding the time limit by which Potts could file written objections. Potts, ¶ 82.

¶ 18 Rule 9(A)(8), MRLDE, makes no reference to § 25-10-501, MCA, and § 25-10-503, MCA. It would be anomalous indeed to allow a statute never mentioned anywhere in the MRLDE to limit the scope of the discipline and sanction permitted by Rule 9(A)(8). In fact, to do so would contradict and render meaningless certain provisions of Rule 9(A)(8). For example, Rule 9(A)(8) allows the Court to impose discipline in the form of "[a]ssessment of the cost of the proceedings, investigations and audits." Section 25-10-201, MCA, makes no mention of costs including "investigations and audits." Potts's position would prevent the Court from imposing a sanction against a lawyer that included the cost of the investigations and audits undertaken to develop and prosecute the disciplinary complaint. Nothing in Rule 9(A)(8), MRLDE,...