“A Complete Disdain” Gets Attorney Suspended

The Montana Supreme Court has suspended  an attorney for not less than seven months as a result of a contempt

The complaint arises from the Office of Disciplinary Counsel’s (ODC) investigation of a different Montana attorney for suspected violations of the Rules of Professional Conduct. ODC requested McCann to produce certain documents and she refused, claiming privilege. ODC then requested and obtained a hearing under Rule 24 of the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). At that hearing, McCann appeared and again contended that the documents ODC sought were privileged. The Commission directed her to produce the documents, along with a privilege log, to the Commission for in camera inspection. McCann complied and, on November 27, 2017, the Commission entered an order overruling most of her privilege claims and directing McCann to produce the non-privileged documents within ten days.

She did not timely comply.

The scheduled show cause hearing did not occur because McCann attempted to remove the matter to federal court. The United States District Court for the District of Montana remanded the case, ruling that removal was improper.

She did not respond to the show cause order

On March 26, 2018, the Commission issued its written recommendation, recounting the above facts and summarizing the myriad actions McCann had taken subsequent to its issuance of the Order to Show Cause. These actions included the referenced procedural motions before the Commission seeking dismissal, stay, or continuance, as well as the attempted removal to federal court. McCann also filed in the United States District Court a motion to recuse the federal judge who had determined her removal to be improper and a complaint for declaratory and injunctive relief against the Commission, its Chair and Vice Chair, and Chief Disciplinary Counsel. The Commission observed that the gravamen of the federal complaint is the alleged deprivation of her mother’s right to counsel in a guardianship proceeding.

Further

The Commission found that McCann’s various filings did not reflect the “full ferocity of her attacks on the Commission and ODC,” and that her actions “reflect a complete disdain for the law and this Court’s disciplinary process as well as any modicum of competent practice.” The Commission concluded that McCann’s conduct was “directly and vehemently at odds” with her professional obligations as a licensed Montana attorney. The Commission recommends that McCann be found in contempt and that discipline be imposed. McCann filed objections to the Commission’s recommendation, and ODC filed a brief reply.

The court

In this case, ODC was acting within the scope of its authority when it began an investigation of the other attorney’s conduct after receiving a complaint. As a licensed Montana attorney who has taken the oath to comply with the Rules of Professional Conduct, McCann is subject to the MRLDE and had an obligation to comply with ODC’ s request for documents. Rule 8(A)(6), IVIRLDE. When she did not do so, ODC had discretion under Rule 24, MRLDE, to request a hearing. The Commission acted in accordance with that rule when it convened a hearing on ODC’ s request, and McCann appeared at that hearing to raise her objections. When the Commission then directed her to produce documents within a specified time and McCann refused, the Commission gave her the appropriate opportunity to show cause why she should not be subject to discipline. The Commission had authority under Rule 19(D), IVIRLDE, to request that McCann be cited for contempt of the Supreme Court and to recommend appropriate discipline. The matter now is properly before this Court…

As an arm of this Court empowered to conduct a judicial investigation under the Court’s authority, the Commission had jurisdiction to order McCann to produce documents requested by ODC and to recommend that she be found in contempt when she did not show cause for her failure to comply with the Commission’s order as directed.

…we conclude that McCann did not comply with the terms of the Commission’s November 27, 2017 Order; that McCann’s conduct in response to ODC’ s inquiry has obstructed the disciplinary process, consumed an overwhelming amount of time of the individual Commissioners, the Office of Disciplinary Counsel, officers and judges of the United States District Court and the Ninth Circuit Court of Appeals, and this Court; that her actions amounted to disorderly and contemptuous behavior toward the Commission, interrupting the due course of its proceedings, see § 3-1-501, MCA; and that—as the Commission found—her actions greatly exceed any bound of reasonableness or moderation
and reflect a disdain for the law and judicial processes. She is in contempt of the Supreme Court for her actions in the Commission’s proceedings.

(Mike Frisch)