No. 82-85
IN THE SUPREME: COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF RONALD C . WYSE,
an attorney and counselor at law,
Respondent.
Commission on Practice:
Arnold Huppert, Jr, Secretary, Livingston, Montana
Respondent:
Ronald C. Wyse, Missoula, Montana
Submitted: September 27, 1982
Decided: September 18, 1984
Filed:
l j t P r c; I984
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
We conclude that Ronald C. Wyse, an attorney authorized
to practice law in the State of Montana, should receive a
public censure pursuant to a written recommendation made to
us by the Commission on Practice of the Supreme Court of the
State of Montana. The facts giving rise to our decision and
the reasons for our conclusion follow.
Ronald C. Wyse was admitted to practice law in Montana
on October 27, 1977. At the time of the hearing in 1982,
before the Commission on Practice, he was employed as a
professor in the Law School at the University of Monta.na,
Missoula, Montana. He was also an associate of a law firm in
Missoula.
At about 4 : 3 0 p.m., on October 28, 1980, Wyse responded
LO
J- a telephone call from Alan Robbins, calling from
California. Robbins indicated that he was engaged in
politics in California, that his election was coming before
the voters in California shortly, and that he was about to be
indicted by a grand jury in California, on the charge of
unlawful intercourse, which in California is consensual, but
with a woman under the age of consent.
Robbins informed Wyse that the woman involved had lived
in Missoula, in 1976 and 1977, and that the same young woman
had been involved in some sort of similar charge. Wyse
testified that Robbins vociferously denied the charges made
against him by the young woman and in the telephone call, he
retained Wyse to investigate the young woman's background for
information which might lead to the dropping of the charges
against Robbins in California.
Wyse had never met or known Robbins prior to the time
that he was retained to represent him. Following the
telephone conversation, Wyse used the local telephone book
and found nothing therein relating to the names that Robbins
had supplied him. Wyse then looked in the card file of the
law firm with which he was associated and found in the card
file of closed matters a reference to a file that had a
similar name, described by Wyse as "simply a name, a file
number." He went to the firm's closed file, which was a
simple manila folder with a name on it, opened it, and found
it to be a neatly organized file with documents fastened on
one side. In examining the firm file, FJyse found documents
which tended to corroborate what Robbins had told him, that
there had been a charge by this young woman of sexual
harrassment by her stepfather. The Missoula firm with which
Wyse was associated had been hired by the mother in
connection with the charge. The nature of the proceeding was
to have the young woman declared an abused and neglected
child. The file revealed that the State, by its own motion,
had dismissed the charge and had released the custody of the
young woman to her natural mother. From this, Wyse concluded
that the young woman's charges against the stepfather had
been false.
Robbins had told Wyse that the grand jury was scheduled
to be impaneled on the afternoon of October 30, 1980, and
Wyse felt it was necessary to proceed to get the information
about the young woman into Robbins' possession as quickly as
possible. It was Wyse's intention that the information be
delivered to the California prosecutor with the thought that
if the prosecutor had such information, any possible charges
involving the young woman, against Robbins, would be
suspended or dismissed.
Wyse was generally aware that matters involving
juveniles are protected. He did not consult the statutes to
find the specific provisions at the time. He testified that
"I probably was wrong in not looking up the statute, and yet
in my mind, I knew the statute was there and I had a pretty
good idea what it said."
Wyse talked to Robbins by telephone a second time. He
told Robbins that "there was some kind of information there."
They discussed the fact that this kind of information is
protected and that they would have to get a court order
before it could be used in a public manner in the
defense-in-chief of the particular action. Nevertheless,
they thought if the information could be communicated
privately to the district attorney's office in California,
he, as a rational prosecutor, might think his case not as
strong as it appeared, investigate it, and eventually dismiss
the cause.
On the morning of October 29, 1980, Wyse went to the
courthouse in Missoula, first to the office of the Clerk of
the District Court. He identified himself to the clerk
personnel as an attorney associated with a Missoula law firm
and asked to see the file which he identified by its court
file number. Wyse testified: "The lady behind the counter
went to their file cabinet, opened it up, pulled out the
file, turned to me and said, 'This is a juvenile matter.' I
said, 'Yes. ' She then turned to someone in the back of the
room and said, 'This individual is from [the Missoula law
firm] , they were involved in the case before, may I let them
see the file? ' And the answer was, ' Yes. ' They let me see
the file. I compared it, I did get certified copies of a
couple of documents that contained the inferences I
previously mentioned."
Wyse then went downstairs in the courthouse to the
county attorney's office to see the deputies who handled
juvenile matters. They were busy, so he went across the hall
to the receptionist's office, where he found a young woman
who had been a receptionist formerly at the law firm with
which he was associated, and who was now acting as a legal
secretary in the county attorney's office. He told her that
his firm had represented the parents in a juvenile matter
sometime before, that he was investigating a matter in
California that involved a girl, and he wanted to see if his
firm file was complete. She procured the file; Wyse looked
at it, found a brief summary of a psychologist's report, and
obtained from the secretary a copy of that. He sent a copy
of that report to Robbins and to Robbins' attorney in
California.
In his contempt conviction, which we will later
describe, the record of which is before us in this cause, the
secretary testified that when Wyse talked to her about the
file he had told her that he was with the Ilissoula law firm,
that the law firm had represented the parents of the child,
that the young girl was living in California, and that,
because she was under age in the State of California, the
file was still open and needed to be updated. On the basis
of that representation, the secretary testified that she
surrendered the contents of the file to Wyse. Wyse denied at
the Commission hearing that he made such representations,
although, he admitted that "in retrospect, yes, I think there
is a distinct possibility that she may have been led to
believe something. I am certainly not saying that she lied
under oath, that is not the question at all, but I don't
believe I intentionally misled her."
Wyse, by telephone and by mail, divulged to Robbins and
to Robbins' defense counsel the information that he had
obtained from the file of the firm with which he was
associated and a copy of the document that he had obtained
from the county attorney's file.
When the Missoula county attorney discovered that Wyse
obtained the information from his files and those of the
court, he petitioned the District Court for an order
directing Wyse to appear and show cause why he should not be
held in contempt of court. Wyse was found guilty of contempt
by the District Court, and the decision of the District Court
was reviewed by us in Wyse v. District Court of the Fourth
Judicial District in and for Missoula County (1981), 195
Mont. 434, 636 P.2d 865. This Court, though divided, upheld
on review the finding of contempt of court.
The Commission on Practice filed its complaint against
Wyse in this Court on March 19, 1982. On September 20, 1982,
the Commission filed with us findings of fact, conclusions of
law and recommendation. On September 27, 1982, Wyse filed
his answer in opposition to the findings, conclusions and.
recommendation. Thus, the matter comes before us for final
decision.
Wyse urges the dismissal of the charges against him on
these grounds:
.
1 The findings are incorrect in stating that his law
firm represented the young woman.
2. There is no evidence before the Commission on
Practice that he discussed this case with the law students at
the University of Montana.
3. His due process rights have been violated by the
proceedings before the Commission on Practice.
4. The term "dissemination" as used in section
41-3-205, MCA, is not synonymous with the term "public
disclosure" and that he made no public disclosure of the
information.
5. The right of Robbins to effective assistance of
counsel overrides any considerations of confidentiality in
juvenile proceedings.
We look first at the constitutional issues raised by
Wyse. His due process argument is that the Commission on
Practice is the prosecutor, judge and jury and as such, these
proceedings deprived him of due process. Wyse relies on the
holding of In Re Schleslinger (1961), 404 Pa. 584, 172 A.2d
835. There, the Pennsylvania Supreme Court found a denial of
due process in the disbarment proceedings of an attorney
where the functions of prosecutor, judge and jury were vested
in a single committee. Schleslinger was charged with being a
member of the Communist party in violation of the oath, which
he took when he was admitted to practice, that he would
support the Constitution of the United States. Under
Pennsylvania proceedings, a committee of 15 lawyers appointed
by the court served as the committee for discipline, and on a
vote of the 15 members, it assigned the charges against
Schleslinger to a subcommittee of 3 persons to hear the case.
The subcommittee took evidence, and made its findings that
Schleslinger was a member of the Communist party, that his
membership violated his oath to uphold the Constitution of
the United States, and ordered his disbarment. The
Pennsylvania Supreme Court, in a divided decision, reversed
the disbarment.
The procedure which has been applied to Wyse cannot be
compared with the procedure that was followed in
Schlessinger. Our Commission on Practice acted under order
no. 10910, issued by this Court on January 5, 1965. The
rules regarding proceedings before the Commission on Practice
and before us in disciplinary matters were amended by us in
our order of August 23, 1983, also in cause no. 10910 of this
Court. In each set of rules setting forth proceedings before
the Commission on Practice, this Court has been careful to
state that "it possesses original and exclusive jurisdiction
and responsibility under Art. VII, 5 2(3), 1972 Mont. Const.,
and the provisions of Ch. 61, Title 37, MCA, in addition to
its inherent jurisdiction, in all matters involving
admissions of persons to practice law in the State of Montana
and the conduct and disciplining of such persons." Under the
1965 set of rules, all questions relating to discipline are
to be finally decided only by this Court. Under the 1983
rules, this Court continues to assert its exclusive
jurisdiction in all matters involving public censure,
disbarment or suspension. Under both sets of rules, and
particularly under the rules applicable to Wyse, the
proceedings before the Commission on Practice are designed to
establish a record upon which this Court must act. The
respondent attorney in such proceedings is given full right
of representation by counsel, confronta.tionof witnesses, the
adducement of evidence in his own behalf and the right fully
to argue the merits on the facts and law. When the report
from the Commission reaches this Court, its findings of fact
are not attended by any special binding effect upon us and we
have always maintained the right to accept or reject the
findings of fact made by the Commission on Practice and to
accept, reject or modify its recommendations for discipline.
It is important to note that in this case, Wyse has not
pointed out any prejudice resulting to him from a purported
denial of due process, except that he disagrees with the
findings and conclusions of the members of the Commission.
The discipline of lawyers is constitutionally and
inherently imposed in the Supreme Court of this state.
Rather than depriving lawyers of due process, our rules
provide for an orderly method of preserving to the attorney
accused before the Commission, and later before us, his
denials and defenses to the charges made against him in the
widest latitude. We find no deprivation of due process
affecting Wyse's rights in this cause.
Wyse also contends that since his law firm did not
represent the young woman, but rather her mother who was
seeking a return of her custody, that no disclosure of
confj-dential information of a client is involved in this
case. The Commission on Practice found that Wyse had
violated DR 4-101 of the Canons of Professional Ethics which
relates to the preservation of confidences and secrets of a
client. (See Canons of Professional Ethics, Vol. 160,
Montana Reports, promulgated and effective May 1, 1973. )
The proceeding in which Wyse's law firm represented the
mother was brought by the State Department of Public Welfare
to have the young woman declared an abused or neglected child
under section 41-3-404, MCA. The mother of the young woman
retained the law firm to oppose the action and to retain
custody of the young woman. The State Department of Public
Welfare eventually dismissed the action.
If we regard the mother as the client of the law firm,
and not the child, Wyse, by utilizing information gained by
the law firm and. by him as a member of the law firm
nonetheless violated DR 4-101. The rule terms as "secret"
information gained in the professional relationship, the
disclosure of which would be embarrassing or would be likely
to be detrimental to the client. The rule further provides
that "secret" information may be revealed by a lawyer with
the consent of the client affected, but only after a full
disclosure to the client. Wyse made no effort to consult
with the mother, or to obtain a consent to release the
information he had obtained. We find that he violated DR
The statute respecting confidentiality in juvenile
proceedings is section 41-3-205, MCA, which follows:
"Confidentiality. (1) The case records of the
department of social and rehabilitation services,
and its local affiliate, the county welfare
department, the county attorney and the court
concerning actions taken under this chapter and all
records concerning reports of child abuse and
neglect shall be kept confidential except as
provided by this section. Any person who permits
or encourages the unauthorized dissemination of
their contents is guilty of a misdemeanor.
" (3) Records may be disclosed to a court for in
camera inspection if relevant to an issue before
it. The court may permit public disclosure if it
finds such disclosure to be necessary for the fair
resolution of an issue before it . . ."
Wyse submits that in the contempt proceedings in the
District Court, and again before this Court, he had contended
that the words "unauthorized dissemination" and "public
disclosure" are conflicting and that he did not violate the
statute on confidentiality. He also argues, as he did in the
contempt case, that the right of Robbins to effective
assistance of counsel overweighs any provisions of statute
for confidentiality in juvenile proceedings.
Wyse also states that he raised the same issues
respecting section 41-3-205, MCA, and that these were not
treated by this Court in its decision upholding his contempt.
In effect, in the disbarment proceedings, he is seeking again
to argue the issues that were before this Court in the
contempt proceedings. It is enough to say that under the
facts of this case, which are relatively undisputed, Wyse
made an "unauthorized dissemination" of the contents of the
documents contained in the files of the county attorney and
of the court and in doing so, he was in contempt of court.
The provisions relating to "public disclosure" are not
synonymous with nor intended to be synonymous with the term
"unauthorized dissemination." Any unauthorized
dissemination, public or private, is prohibited under section
41-3-205(l). The term "public disclosure" comes into play if
request is made to the court to permit the same and the court
finds such public disclosure necessary for the fair
resolution of an issue before it.
Wyse also contends that the statute on confidentiality
and juvenile matters is vague and overbroad. This issue is
answered in Wyse, 636 P.2d 865, 867, where we stated:
"Relator cannot argue that the statute is vague
when he admits knowing that this type of statute
exists and admits knowing that a court order is
required to obtain the information in the file."
Wyse's final contention is that Robbins' rights
overweighed the confidentiality statute. He relies for
a.uthority on Davis v. Alaska (1974), 415 U.S. 308, 319-320,
94 S.Ct. 1105, 39 L.Ed.2d 347. Davis was a case where the
trial- court refused a defendant the right of
cross-examination of a juvenile with a record of burglary, to
show the juvenile's possible bias as a probationer and as a
possible burglar. The United States Supreme Court held that
the right of confrontation is paramount to any state policy
affording protection to juvenile offenders.
We are not confronted here with a Davis situation. We
do not have a defendant here seeking to cross-examine a
witness on information which was foreclosed from him by a
court order. No application was made here to the court for
the right to disseminate, privately or publicly, the
information in the juvenile proceedings. The zeal of a
lawyer to protect his client is not a sufficient excuse for
the abuse of the confidentiality provisions of section
41-3-205, MCA, without application to the court for
permission to disseminate the information.
Wyse points out that the information in the juvenile
files had already been transmitted by the county attorney's
office to the office of the prosecutor in California. That
may well be. How such information was disseminated to the
authorities in California is not within the purview of this
cause relating to his violation of the statute on
confidentiality.
We determine that the actions of Wyse in this situation,
constituting as it does a misdemeanor violation under our
statutes, and, more seriously, a contempt of the court which
we have upheld, requires discipline. We reach this decision
without regard to the finding of the Commission on Practice
that Wyse had discussed the case with his law students. Wyse
is correct in contending that there is no record before the
Commission itself relating to discussions with law students.
Irrespective of that, we have here a lawyer who, while
knowing that a statute existed protecting the confidentiality
of juvenile proceedings, gained access to the law firm's, the
clerk of court's and the county attorney's files, by using
the fact that he was associated with a law firm which
represented a party in the juvenile proceedings. He obtained
therefrom documents from these files that he transmitted,
without authorization, to persons out of the State of
Montana. We are unable to condone the actions of Wyse by
dismissal of the charges or by ordering private censure. His
actions require at least a public censure before this Court.
IT IS THEREFORE ORDERED THAT:
On recommendation of the Commission on Practice of the
Supreme Court of the State of Montana, Ronald C. Wyse be
given a public censure for his actions in connection with the
juvenile proceedings in Missoula on October 28-29, 1980, in
the courtroom of this Court in the Justice Building, Helena,
Montana, at a time and on a date to be fixed by a future
order of this Court.
;+qy ,*,/J&~:~
Hon. Russell C. McDon uq
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Justices
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Hod. Leonard Langen,
District Judge
Mr. J u s t i c e D a n i e l J . Shea d i s s e n t s and w i l l f i l e a w r i t t e n
dissent later.