Goldstein v. Commission on Practice of the Supreme Court

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Nos. 97-557 and 98-011

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 8

297 Mont. 493

995 P.2d 923

IN THE MATTER OF MORTON B.

GOLDSTEIN, at Attorney at Law,

and

IN THE MATTER OF SCOTT A.

ALBERS, an Attorney at Law,

Petitioners,

v.

THE COMMISSION ON PRACTICE OF

THE SUPREME COURT OF THE STATE

OF MONTANA,

Respondent.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Petitioners:

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Robert J. Emmons (argued), Attorney at Law, Great Falls, Montana

(Albers); Andrew J. Utick (argued) , Attorney at Law, Helena,

Montana (Goldstein)

For Respondent:

Sam E. Haddon (argued) , Chair, Commission on Practice,

Missoula, Montana; Keith Strong (argued) , Attorney at Law,

Great Falls, Montana

For Amici Curiae:

Martha Sheehy (argued) , Attorney at Law, Billings, Montana

(State Bar of Montana); Charles F. Moses (argued), Attorney at Law,

Billings, Montana; Wade J. Dahood (argued), Attorney at Law,

Anaconda, Montana; Melody K. Brown (argued), Attorney at Law,

Ammon, Idaho; Frank B. Morrison, Jr., Whitefish, Montana;

L. Sanford Selvey, II, Billings, Montana; Patricia O'Brien Cotter,

Great Falls, Montana

Heard: October 26, 1999

Submitted: November 23, 1999

Decided: January 13, 2000

Filed:

__________________________________________

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Clerk

2

Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1.These matters are before the Court following the filing of formal complaints against
Morton B. Goldstein and Scott A. Albers before the Commission on Practice, and the
Commission's subsequent filings of findings, conclusions, and recommendations for
discipline of those attorneys with this Court. The cases were consolidated for oral
argument on common issues concerning the constitutionality of the structure and function
of the Commission on Practice.

¶2.In this Opinion, we address only those issues of general import to attorney disciplinary
proceedings which were orally argued before the Court. We do not here discuss the
Commission's findings, conclusions, and recommendations as to the particulars of the
Goldstein or Albers case. The issues which have been raised as to those matters, and the
Court's final determination as to the appropriate discipline, if any, of Goldstein and
Albers, will be discussed in separate Orders or Opinions to be issued at a later date.

¶3.The constitutional issues discussed herein are:

¶(1). Does Rule 9 of the Rules on Lawyer Disciplinary Enforcement deny the respondent
attorneys due process of law, the right to an impartial tribunal, and equal protection under
the law?

¶(2). Were Goldstein and Albers denied their constitutional rights by virtue of the
confidentiality provisions of Rule 13 of the Rules on Lawyer Disciplinary Enforcement?

Background on the Rules on Lawyer Disciplinary Enforcement

¶4.This Court adopted the Rules on Lawyer Disciplinary Enforcement which are currently
in effect in 1983, replacing substantially similar rules which had been in effect since 1965
and had been adopted pursuant to the Court's authority under the 1889 Montana
Constitution. The 1983 Rules were promulgated pursuant to the Court's rule-making
authority under Article VII, Section 2(3) of the Montana Constitution:

a.[The Supreme Court] may make rules governing . . . admission to the bar and the

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conduct of its members.

The Court which adopted the Rules now in effect did not include any of the Court's
present members.

¶5.The Rules provide that the Court shall appoint an eleven-member commission known
as the Commission on Practice of the Supreme Court of the State of Montana. Eight
members of the Commission are lawyers appointed from eight designated areas of the
State. Those appointees are selected from lists from each area of the three attorneys who
received the highest number of votes in an election by the area resident members of the
State Bar of Montana. The Court also appoints three nonlawyer members to the
Commission. The members of the Commission elect from its lawyer members a
chairperson, a vice chairperson, and a secretary.

¶6.Under the Rules, the Commission performs the initial consideration of complaints
against attorneys for violation of the canons of professional ethics or rules of professional
conduct adopted by this Court. The Commission is empowered, inter alia, to adopt rules
or policies providing for procedural rules not in conflict with the Rules adopted by this
Court, to administer admonitions and private censures, and to conduct formal disciplinary
proceedings as provided in the Rules. The Commission also possesses authority to appoint
investigators to investigate complaints and report to the Commission.

¶7.The procedure followed in handling a complaint against a Montana attorney under the
Rules and the additional procedures adopted by the Commission is, in general, as follows:
Upon receipt of a complaint against a Montana attorney, the Commission sends a copy of
the complaint to the attorney against whom the complaint is made. The attorney is given
time to submit a written reply to the complaint. The complainant is then given the
opportunity to point out any factual errors in the reply. Thereafter, the full Commission
meets to conduct a preliminary consideration of the complaint. If it appears that the facts
do not warrant disciplinary action, the Commission dismisses the matter and so notifies
the complainant and the attorney involved.

¶8.If, on the other hand, the complaint is not dismissed, the Commission may refer the
matter either to a grievance committee or to an investigator. Because grievance committee
proceedings are not at issue here, we shall not discuss them further.

¶9.The Rules on Lawyer Disciplinary Enforcement authorize the Commission to appoint

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as investigators either lawyers or nonlawyers. Investigators generally serve in a volunteer,
or pro bono, capacity. The Commission has adopted a procedure in which four lawyers
located in different parts of the State, who are themselves appointed by the president of the
State Bar of Montana, assist the Commission in recruiting investigators. Each of these four
lawyers appointed by the president of the State Bar is charged with recruiting lawyers to
serve as investigators for disciplinary matters in a given area of the State. When the
Commission has determined that an investigator should be appointed, it notifies one of the
four lawyers, who then secures an investigator for that particular complaint.

¶10.Upon completion of an investigation, the investigator submits a written report to the
Commission. The Commission then determines what type of disciplinary action, if any, to
pursue. The Commission may vote to administer a private admonition to the attorney. In
such cases, the matter is then deemed terminated.

¶11.If the Commission instead determines that formal disciplinary proceedings should be
initiated against the attorney, it appoints special counsel to prepare and file a formal
complaint setting forth the nature of the alleged misconduct. The investigating attorney
may or may not be the attorney who is appointed as special counsel. The complaint
subsequently drafted by special counsel is filed with the Commission and with the Clerk
of the Montana Supreme Court, and is served with a citation upon the attorney against
whom the complaint is filed. Under the present Rules on Lawyer Disciplinary
Enforcement, only at this point do the proceedings against the attorney become public.

¶12.The attorney against whom the formal complaint is filed is granted twenty days to
prepare, file, and serve a written response to the formal complaint. Then, the Commission
must give at least twenty days' notice of the date, time, and place set for a hearing on the
complaint. Discovery may be undertaken at this time.

¶13.At the hearing on the complaint, the attorney is entitled to be represented by a lawyer,
to cross-examine witnesses, and to present evidence. Special counsel presents the case that
disciplinary action is justified. The hearing is recorded and is conducted, in general, in
accordance with the practice and the trial of civil actions. The full Commission sits as the
finder of fact.

¶14.Following the hearing, the Commission submits to the Court a transcript of the
hearing and a report in which it sets forth its findings, conclusions, and recommendations.
The attorney is served with the Commission's report and is allowed time to file written

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objections thereto; special counsel is then allowed time to file a brief in opposition to the
objections.

¶15.At that time, the disciplinary proceeding is considered submitted to the Court, which,
under the Preamble to the Rules, retains "original and exclusive jurisdiction and
responsibility . . . in all matters involving admission of persons to practice law in the State
of Montana, and the conduct and disciplining of such persons." The Court may set the
matter for oral argument and may hold additional hearings. Thereafter, the Court may
dismiss the complaint or impose such discipline as it deems appropriate, including private
censure, public censure, or suspension or disbarment of the attorney from the practice of
law in Montana.

Issue 1

¶16.Does Rule 9 of the Rules on Lawyer Disciplinary Enforcement deny the respondent
attorney due process of law, the right to an impartial tribunal, and equal protection under
the law?

¶17.Rule 9 of the Rules on Lawyer Disciplinary Enforcement sets forth the procedure
followed by the Commission on Practice, as outlined above. Goldstein and Albers assert
that this procedure violates their rights to due process, to an impartial tribunal, and to
equal protection in that it improperly vests both investigatory and adjudicatory functions
in one body-the Commission on Practice. The bulk of Goldstein's and Albers' arguments,
and thus the bulk of our discussion, relate to whether Rule 9 violates the constitutional
right to due process of law.

¶18.This Court considered a similar challenge to Montana's lawyer discipline system in
Matter of Wyse (1984), 212 Mont. 339, 688 P.2d 758. In that case, attorney Wyse argued
that because the Commission on Practice acted as prosecutor, judge, and jury in
proceedings before it, he was deprived of due process.

¶19.This Court disagreed. The Court explained that "the proceedings before the
Commission on Practice are designed to establish a record upon which this Court must
act." Wyse, 212 Mont. at 346, 688 P.2d at 762. The Court pointed out that it retains
exclusive jurisdiction in all matters involving public censure, disbarment, or suspension. It
further pointed out that under the rules, the respondent attorney was given full rights of
representation by counsel, confrontation of witnesses, the adducement of evidence in his

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own behalf, and the right to fully argue the merits on the facts and the law. Finally, the
Court pointed out that Wyse had not identified any prejudice resulting to him from a
purported denial of due process, except that he disagreed with the findings and
conclusions of the Commission. The Court found no deprivation of due process. Wyse,
212 Mont. at 346, 688 P.2d at 762.

¶20.Although the Wyse case was prosecuted under rules of disciplinary enforcement which
have since been superseded, the Rules on Lawyer Disciplinary Enforcement currently in
effect had been adopted by the time this Court heard that case. In connection therewith,
the Court specifically noted that the due process protections which it identified under the
rules which controlled in Wyse continue to be provided under the then-newly-adopted
Rules on Lawyer Disciplinary Enforcement. Wyse, 212 Mont. at 346, 688 P.2d at 762.

¶21.Goldstein and Albers cite a 1993 study by the American Bar Association Standing
Committee on Professional Discipline which suggested that in order to avoid presenting an
appearance of unfairness, full-time disciplinary counsel should be appointed in Montana.
The ABA committee also suggested that the Commission should be divided into separate
panels for reviewing and hearing proceedings in each case before it. However, the ABA
committee made no determination, and had no authority to do so, as to the
constitutionality or lack thereof of the present system of lawyer discipline in Montana. We
are not convinced that Montana's lawyer discipline system is unconstitutional merely
because it may be possible to improve the system.

¶22.Our position is supported by an Opinion of the United States Supreme Court. In
Withrow v. Larkin (1975), 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456, the Court upheld
the constitutionality of an administrative disciplinary system for Wisconsin physicians
which combined investigatory and adjudicatory functions. The Court noted that bias in a
decision maker is not presumed and must be proven, and that "the case law, both federal
and state, generally rejects the idea that the combination (of) judging (and) investigating
functions is a denial of due process." Withrow, 421 U.S. at 47 and 51 (citation omitted).

¶23.The Withrow Court termed "untenable" the argument that bias automatically arises
from a combination of investigatory and adjudicatory functions. Withrow, 421 U.S. at 55.
The court reasoned:

Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe
that a crime has been committed and that the person named in the warrant has committed

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it. Judges also preside at preliminary hearings where they must decide whether the
evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements
has been thought to raise any constitutional barrier against the judge's presiding over the
criminal trial and, if the trial is without a jury, against making the necessary determination
of guilt or innocence. Nor has it been thought that a judge is disqualified from presiding
over injunction proceedings because he has initially assessed the facts in issuing or
denying a temporary restraining order or a preliminary injunction. It is also very typical
for the members of administrative agencies to receive the results of investigations, to
approve the filing of charges or formal complaints instituting enforcement proceedings,
and then to participate in the ensuing hearings. This mode of procedure does not violate
the Administrative Procedure Act, and it does not violate due process of law. We should
also remember that it is not contrary to due process to allow judges and administrators
who have had their initial decisions reversed on appeal to confront and decide the same
questions a second time around.

Withrow, 421 U.S. at 56-57.

¶24.The procedure for Montana attorney discipline is more protective of the licensee than
the one found constitutional in Withrow in that the entity which allegedly improperly
combines functions in the Montana lawyer discipline system, the Commission, makes only
recommendations for discipline. In Withrow, the entity which combined prosecutorial and
adjudicatory functions also had the authority to suspend the physician's license. Withrow,
421 U.S. at 37. As noted in Wyse, and as clearly provided under the Rules on Lawyer
Disciplinary Enforcement, this Court has taken upon itself the sole responsibility to
adjudicate lawyer ethical violations.

¶25.The Withrow Court held, however, that the special facts and circumstances of a case
in which investigatory and adjudicatory functions were combined may justify a conclusion
that the risk of unfairness from the combination of functions is intolerably high in that
particular case. Withrow, 421 U.S. at 58. Although Goldstein and Albers raise this specter,
they have made no allegations of specific facts and circumstances which would overcome
the presumption of honesty and justify a conclusion that, in either of these cases, the risk
of unfairness from the combination of functions is intolerably high or that they have been
denied their rights to impartial tribunals.

¶26.Goldstein, Albers, and some amici maintain that attorneys should be accorded the
same procedural protections as are other licensed professionals in the State of Montana,

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whose professional discipline proceedings are governed by the Uniform Professional
Licensing and Regulation Procedures set forth at Title 37, Chapter 1, part 3, MCA. This is
the apparent centerpiece of their equal protection argument.

¶27.Goldstein and Albers point out that under the Uniform Professional Licensing and
Regulation Procedures, the persons who sit on a screening panel to determine whether
there is reasonable cause to believe that disciplinary procedures are justified must not
thereafter participate in the final decision in the case. See § 37-1-307(1)(e), MCA.
Goldstein and Albers cite that as a due process protection. The Commission responds that
the present lawyer discipline system in which a majority of the full 11-member
Commission, including both lawyers and nonlawyers of various backgrounds, must agree
that a formal complaint against an attorney is justified provides more protection to the
respondent attorney than would a system in which a 3-member subcommittee was allowed
to make that critical determination. We agree.

¶28.There are other ways in which the Rules on Lawyer Disciplinary Enforcement may
offer the licensee more protections than do the Uniform Professional Licensing and
Regulation Procedures. For example, the Montana Administrative Procedure Act, under
which adjudicative proceedings in licensing matters are held, see § 37-1-310, MCA,
allows the agency to select the hearing examiner to conduct the disciplinary hearing. See §
2-4-611(1) and (2), MCA. The findings of that agency-selected hearing examiner are
difficult to overturn. See § 2-4-621(3), MCA ("the agency . . . may not reject or modify the
findings of fact unless the agency first determines from a review of the complete record
and states with particularity in the order that the findings of fact were not based upon
competent substantial evidence or that the proceedings on which the findings were based
did not comply with essential requirements of law") and § 2-4-704, MCA (regarding
judicial standards of review of agency decisions). In contrast, this Court exercises de novo
review over the findings of the Commission on Practice.

¶29.We agree that attorneys confronted with proceedings which may result in the loss of
their licenses to practice their profession are entitled to due process, as are other
professionals faced with such proceedings. Goldstein and Albers have cited no authority,
however, stating that either equal protection or due process requires that identical
procedures must be followed in all types of professional disciplinary proceedings. The
United States Supreme Court has indicated to the contrary, noting in Withrow that "the
incredible variety of administrative mechanisms in this country will not yield to any single
organizing principle." Withrow, 421 U.S. at 52.

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¶30.We conclude that neither Goldstein nor Albers has established that the procedure for
handling disciplinary complaints as set forth under Rule 9 of the Rules on Lawyer
Disciplinary Enforcement denies a respondent attorney due process of law, the right to an
impartial tribunal, or equal protection under the law.

Issue 2

¶31.Were Goldstein and Albers denied their constitutional rights by virtue of the
confidentiality provisions of Rule 13 of the Rules on Lawyer Disciplinary Enforcement?

¶32.Rule 13 of the Rules on Lawyer Disciplinary Enforcement provides:

A. Confidentiality. All disciplinary proceedings which are prior in time to the filing of a
formal complaint with the Clerk of the Supreme Court and all documents in connection
therewith shall be confidential.

B. Public Proceedings. Upon the filing of a formal complaint with the Clerk of the
Supreme Court in a disciplinary matter, or upon the filing with the Clerk of the Supreme
Court of a petition for reinstatement, the proceedings before the Commission shall be
public except for:

(1) deliberations of the Commission;

(2) information or proceedings with respect to which the Commission or Supreme Court
has issued a protective order.

C. Violation. Violation by any person of any confidential information under these rules
shall be punishable as a contempt of the Supreme Court.

D. Duty of Participants. All participants in a proceeding under these rules shall conduct
themselves so as to maintain the confidentiality mandated by this rule.

¶33.Goldstein and Albers complain that pursuant to Rule 13, they were denied access to
documents which had been filed with the Commission prior to the filing of the formal
complaints against them, and that they were excluded from Commission deliberations on
their cases. Albers also complains that he was not allowed to depose the chairman or
members of the Commission on Practice, the investigator of the informal complaint

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against him, or the special prosecutor of the formal complaint against him.

¶34.Goldstein and Albers argue that Rule 13 violates their rights to free speech under
Article II, Section 7 of the Montana Constitution because the Rule places a "blanket gag
order on all freedom of expression relating to ethical charges against an attorney." In so
arguing, Goldstein cites Doe v. Supreme Court of Florida (S.D. Fla. 1990), 734 F.Supp.
981.

¶35.The plaintiff in Doe had filed a complaint with the Florida Bar against his former
attorney. The Florida Bar determined that the complaint was meritorious and that the
attorney in question had indeed violated the Code of Professional Responsibility. A
private reprimand was issued against the lawyer. The plaintiff subsequently wished to
speak and publish articles about his complaint. He dared not do so, however, out of fear of
being punished for violation of a disciplinary rule which provided for confidentiality of
disciplinary proceedings. He filed suit asking that the rule be declared unconstitutional.
The United States District Court for the Southern District of Florida entered summary
judgment for the plaintiff, declaring that the disciplinary rule was unconstitutional on its
face and as applied. Doe, 734 F.Supp. at 988.

¶36.Doe is clearly distinguishable from the cases before us. First, and contrary to
Goldstein's assertions, Montana's Rule 13 is not "identical" to the confidentiality provision
at issue in Doe. Under Rule 13, after the Commission determines that a complaint is
meritorious and directs the filing of a formal complaint, the proceedings are public. Such
was apparently not the case after the Florida Bar determined that plaintiff Doe's complaint
was meritorious. Second, the facts and circumstances listed above which Goldstein and
Albers cite in support of their argument that they were deprived of their rights to free
speech under the confidentiality rule are totally different from the facts and circumstances
which served as the basis for the court's "unconstitutional as applied" decision in Doe.
After considering Goldstein's and Albers' free speech claims, we hold that they have not
established that their rights to free speech were violated.

¶37.We next consider the contention that Goldstein and Albers were denied their right to
due process of law through application of Rule 13. Again, this claim relates to Goldstein's
and Alber's alleged inability to prepare for their cases before the Commission as a result of
being prohibited from reviewing documents in the Commission's files which were filed
prior to the filing of the formal complaints against them.

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¶38.Due process requires notice and an opportunity to be heard. Goldberg v. Kelly (1970),
397 U.S. 254, 25 L.Ed.2d 287, 90 S.Ct. 1011. Our review of the Court's files in the
Goldstein and Albers matters establishes that the formal complaints filed against Goldstein
and Albers were detailed, thorough, and public. Goldstein and Albers cannot deny that
well before their public hearings before the Commission they were fully informed in detail
of each charge against them and the legal basis for each.

¶39.Discovery in the Albers case included special counsel's disclosure of the names of
persons with relevant knowledge, and the names of the witnesses the special counsel
intended to call. In fact, prior to his public hearing before the Commission, Albers
deposed all three principal witnesses who testified against him. In Goldstein's case, special
counsel provided to Goldstein's counsel the names and addresses of all witnesses special
counsel intended to call at the hearing; a list of all exhibits special counsel intended to
offer, and an opportunity for Goldstein to copy all such exhibits. Neither Goldstein nor
Albers claims that he was surprised by any of the evidence presented against him at the
formal hearing before the Commission or that he consequently did not have a chance to
meet that evidence.

¶40.Goldstein and Albers argue, however, that they were deprived of due process in that
they were not allowed to examine documents filed with the Commission prior to the filing
of the formal complaints. In considering this aspect, we first note that any evidence
relating to portions of an informal complaint not included in the formal charges filed
against an attorney is not relevant, much less important, to the respondent attorney's
preparation to meet the charges at the formal hearing. Because the informal stage of the
proceedings is not part of the record normally considered by the Court, any evidence
which comes to light during the informal investigation but does not relate to matters
included in the formal complaint does not enter into the ultimate outcome. The formal
complaint controls the issues to be decided at the hearing before the Commission and the
ultimate outcome of the disciplinary proceedings before this Court.

¶41.More troubling is the concern that evidence which may be exculpatory to the
respondent attorneys as to issues which were included in the formal complaints may exist
in the Commission's pre-formal-complaint files. We agree that any exculpatory evidence
which was filed before the formal complaint and which relates to matters eventually
included in the formal complaint must be disclosed to the respondent attorney.

¶42.The Court has obtained from the Commission and examined the Commission's files

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and records in the Goldstein and Albers cases prior to the dates of filing of the formal
complaints. We have found no such exculpatory evidence. We conclude that neither
Goldstein nor Albers has demonstrated violation of his right to due process by virtue of
Rule 13.

¶43.Albers argues that Rule 13 denies him his right to equal protection under the law,
making a comparison with the constitutional provision and statutes concerning the Judicial
Standards Commission under which a judge responding to a disciplinary complaint may
waive confidentiality. See Art. VII, § 11(4), Mont. Const., and § 3-1-1122, MCA. Beyond
a bare accusation of denial of equal protection, Albers' argument is inscrutable, and we
will not consider it further. Albers has not established that he was treated differently under
the Rules on Lawyer Disciplinary Enforcement from any other attorney facing disciplinary
charges.

¶44.In his objections to the Commission's findings, conclusion, and recommendation,
Albers also asserts that Rule 13 violates his right to full legal redress. He makes this
argument only in general and cursory form, and he did not address the issue at oral
argument. We find no merit in this argument.

¶45.In his briefs, Albers further asserts that the Rule 13 provision on confidentiality of
Commission proceedings violates his right to know under Article II, Section 9, of
Montana's Constitution in that deliberations and all records of public bodies must be open.
Albers asserts that confidential Commission proceedings also violate his right to
participate in government decisions under Article II, Section 8. In addition, Albers argues
that Article VII, Section 2(3) of the Montana Constitution does not specifically allow any
proceedings of the Commission on Practice to be confidential.

¶46.According to these arguments an amount of consideration commensurate with their
skeletal presentation by Albers, we reject them. First, Albers has failed to establish that the
deliberations of the Commission, as an arm of this Court, and unlike the deliberations of
this Court or of juries, are subject to the open meeting requirements set forth in Montana's
Constitution. See Order In re Selection of a Fifth Member to the Montana Districting
Apportionment Commission, August 3, 1999.

¶47.It is also plain that because the Commission sits only in an advisory capacity to the
Court, no prejudice has been shown, or can be shown, to Goldstein and Albers as a result
of their exclusion from the Commission's deliberation meetings. Goldstein, Albers, and

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some amici have suggested that the Commission might somehow be swayed by
confidential information outside the record. We again point out that this Court reviews the
record in an attorney discipline matter de novo to determine whether the charges have
been proven by clear and convincing evidence. Goldstein, Albers, and their supporting
amici have offered no speculation about how confidential information provided to the
Commission prior to the filing of a formal complaint could sway the opinion of this Court,
whose review is limited to the record of the formal proceedings against the attorney. In
short, there has been a complete failure to show how any confidential information outside
the record, with the exception of exculpatory evidence filed with the Commission prior to
the filing of the formal complaints, could have any actual prejudicial effect on the results.

¶48.Goldstein and Albers were granted full discovery of all evidence to be presented at the
formal hearings against them. Moreover, the final decision maker, this Court, ordinarily
has no access to any material not found in the record filed with the Clerk of this Court.
Our review leads us to conclude that Goldstein and Albers have not established that Rule
13 confidentiality prior to the filing of a formal complaint, the confidentiality of
Commission deliberations after the filing of the formal complaint, or the denial of some of
Albers' discovery requests interfered with their due process or other constitutional rights.

Conclusion

¶49.We hold that Goldstein and Albers have not established violation of their
constitutional rights by application of either Rule 9 or Rule 13 of the Rules on Lawyer
Disciplinary Enforcement. We take under further advisement the remaining issues raised
in these matters as to the discipline to be imposed, if any, against Morton B. Goldstein and
Scott A. Albers.

/S/ J. A. TURNAGE

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ KARLA M. GRAY

Justice James C. Nelson dissenting.
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¶50.I dissent from the Court's decision that Rules 9 and 13 of the Rules for Lawyer
Disciplinary Enforcement (hereafter, simply referred to as Rules or Rule) do not deny a
respondent attorney due process of law. I conclude and would hold that the rules fail in
this regard and, accordingly, are violative of Montana's Constitution, Article II, Section
17. I also conclude and would hold that Rule 13 is unconstitutional as violative of
Montana's Constitution, Article II, Section 9.

Introduction

¶51.Before commencing my discussion of the law, I want to make one thing
unequivocally clear. My dissent should not be read as a criticism of the members of the
Commission on Practice (COP), either past or present, or of any of the attorney
investigators and special counsel who, with no compensation and little thanks, have and
continue to unselfishly give of their time and talent to the cause of lawyer discipline in
Montana. Quite simply, without the generous, voluntary contributions of these respected
and dedicated members of the State Bar of Montana (Bar), the whole discipline system
would collapse; we would not have what little we have now.

¶52.And that is part of the problem. As this dissent suggests, this Court has imposed too
great a burden for lawyer discipline on the few members of the Bar willing to serve. The
Bar has argued for reform; respected members of the Bar (one, a delegate to the
Constitutional Convention) as amici curiae have argued for reform; the respondent
attorneys in these cases and attorneys in other cases pending before the COP have argued
for reform, yet we have ignored their pleas. Lawyer discipline in Montana is
constitutionally deficient, not because of anything the COP or the Bar have done or have
failed to do but, rather, because this Court, in the exercise of its constitutional authority
under Article VII, Section 2(3), has mandated the use of an unconstitutional scheme for
disciplining attorneys.

¶53.Whether to avoid what would, no doubt, be a politically unpopular Court-mandated
Bar dues increase to fund needed reforms, or out of fear of having to rehear the instant
cases and jeopardizing the numerous other disciplinary proceedings pending before the
(1)
COP we have refused to acknowledge and to rectify the glaring constitutional
deficiencies in Montana's disciplinary scheme that are patently obvious to nearly every
organization and attorney who has appeared in these proceedings.

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¶54.Indeed, I am dumb-founded by our decision. In 1996, after years of studying the
current disciplinary system and after suggesting changes to rectify the obvious
constitutional and practical infirmities it identified, the leadership of the Bar went "on the
road" to promote to the membership a modest dues increase to fund some of the
hereinafter discussed needed improvements to this State's lawyer disciplinary system. In
support of that effort various members of the COP and this Court, this writer included,
joined the band-wagon to pointedly argue to Montana's attorneys the urgent need and legal
necessity for these changes. Now, a mere three-plus years later--at a time when the COP
continues to struggle with its heavy case load of lawyer disciplinary proceedings and at a
time when the law supporting the mandate for these changes has been forcefully and
eloquently argued by the respondent attorneys, by the Bar and by numerous other amici
curiae--this Court's support has evaporated. Go figure.

¶55.That we have failed to discharge our singular administrative responsibility to reform
the system for lawyer discipline in this State is bad enough; that we have failed in our
most solemn obligation as judges to support, protect and defend the constitutional rights of
a whole profession--the very profession, ironically, that is sworn to defend the due process
rights of every other citizen--is unforgivable.

¶56.Montana is the Last Best Place for many things. In terms of a constitutionally
sufficient lawyer disciplinary system, however, Montana is simply last!

Discussion

I. Rule 9

A. The American Bar Association Report

¶57.In 1992, this Court invited the American Bar Association (ABA) to consult on
Montana's lawyer regulatory system. An experienced and highly credentialed team from
the ABA conducted interviews with persons involved with all facets of the regulatory
system, including members of this Court, the Board of Governors (now Board of Trustees)
and Executive Director of the Bar, Members of the COP, volunteer investigators and
special counsel, respondents' counsel, respondents, complainants, members of the client
protection committee, members of the lawyer assistance program and members of the Bar
generally. The team also reviewed internal office records and procedures of the COP and
the client protection committee as well as the rules governing lawyer discipline, client

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protection and lawyer assistance. The team also received written comments from persons
that it was unable to interview. Report on the Montana Lawyer Regulation System, at 2
(Nov. 1993) (hereafter ABA Report).

¶58.As a result of this study, the ABA issued an insightful and comprehensive report in
November 1993. This report--the ABA Report--analyzed, discussed and made
recommendations on all phases of Montana's regulatory system for lawyers including the
need for creation of an office of disciplinary counsel, restructuring of the COP, reforming
lawyer disciplinary procedures, sanctions, access to the disciplinary system, protection
mechanisms (lawyer trust accounts), and other lawyer and client security matters not at
issue here. The ABA Report is worth reading. It graphically points up the deficiencies in
Montana's lawyer regulation and disciplinary system and, of particular relevance to the
matters under discussion, the ABA Report is severely critical of Montana's procedures
under Rule 9.

¶59.Not surprisingly, the majority gives the ABA Report short shrift. However, portions of
this study serve to focus the due process infirmities inherent in Montana's disciplinary
system which this Court has chosen to ignore. With apologies to the reader for the lengthy
block quote, those parts of the ABA Report, because of their relevance and importance, are
set out here:

I. CREATION OF THE OFFICE OF DISCIPLINARY COUNSEL

Recommendation 1: Appointment of Disciplinary Counsel

The Supreme Court should establish an Office of Disciplinary Counsel and appoint
an attorney to serve as Disciplinary Counsel. The Disciplinary Counsel should have
the duty to receive, screen, investigate and prosecute complaints of attorney
misconduct in Montana. Disciplinary Counsel should have the authority to hire staff
necessary to perform his or her duties and not rely on the use of volunteer
investigators and prosecutors.

Recommendation 2: Staff in the Office of Disciplinary Counsel

Disciplinary Counsel should share one full-time assistant counsel, 2 full-time
secretaries and part-time non-lawyer investigators as needed on a contract basis.

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The Montana System

Montana is the only jurisdiction in the United States that has no professional staff
employed in the investigation and prosecution of complaints against attorneys. The
Commission on Practice handles a complaint at every stage in the process until final
adjudication by the Montana Supreme Court. Volunteer investigators and special counsel
from different geographical areas are called upon to investigate and prosecute cases.

Effects on the Montana System

Having the same group perform oversight and review functions at each stage in the
process as well as conduct hearings and make findings, conclusions, and recommendations
to the Supreme Court creates an appearance of unfairness, although no improprieties were
found. It is difficult for any person to review complaints initially to determine whether
they should be investigated, review them again after investigation to determine whether
formal charges should be filed and then sit as an impartial adjudicator.

The use of volunteers to investigate and prosecute causes delay and inconsistency.
Volunteers lack expertise in disciplinary enforcement. They are often not aware of the
nuances of the rules of professional conduct or of all the procedural rules applicable in a
particular situation, such as interim suspension or subpoena power, or are unsure how to
apply these rules. The team learned there is also some resistance on the part of the
volunteers to performing the investigative and prosecutorial function because of the time it
takes away from their own practice and their lack of expertise. There was agreement
among those interviewed by the team that the use of volunteer investigators and
prosecutors is the weakest link in the lawyer disciplinary system. Many noted that
investigators are not promptly appointed and that, once appointed, they do not promptly
complete the investigation and report to the Commission. Often an attorney will agree to
investigate a matter and then advise the Commission several months later that he or she is
too busy to handle the matter. The Commission must then find another investigator.

The delay that results is harmful to the profession. As one Commission member stated,
"To have a hearing on a serious matter one or two years after the complaint was filed is
unfair to the complainant and the attorney involved. Justice is not served."

The Recommendation

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The team recommends that the Supreme Court appoint a full-time disciplinary counsel to
screen, investigate and prosecute disciplinary complaints. The Supreme Court is already
responsible for appointing the member of the Commission on Practice. The team believes
that the disciplinary system should be controlled and managed exclusively by the Montana
Supreme Court and agrees that the disciplinary system should continue to be separate from
the state bar. In Recommendation 19, several suggestions are made regarding programs
that can properly be managed by the state bar.

The team heard no complaint about any individuals who serve on the Commission on
Practice. The recommendation to appoint full-time disciplinary counsel is in no way a
relation on the quality of service or the dedication of those individuals. Rather, the team
believes that this structural change is needed because the capacity of the current system
has been reached and will soon be exceeded. The system is overly dependent on too few
people. Several Commission members noted that the amount of time it takes to handle
Commission business, including meetings, phone calls from complainants and
respondents, and review of files and hearings, is becoming prohibitive, especially for
small or solo practitioners. The appointment of professional disciplinary counsel would
reduce the workload for the Commission members making it possible for all types of
persons to serve on it.

Several Commission members expressed concern that if a professional disciplinary
counsel were appointed, the Commission would be totally removed from the preliminary
decision-making process and that this would hamper the Commission's ability to function
as an agency of the Court. The team believes that the Commission on Practice should
continue to be involved in the decision to file formal charges and suggests in
recommendation 7 that the Commission divide into panels of three to review the
recommendation of the disciplinary counsel after investigation.

ABA Report, at 9-11.

III. DISCIPLINARY PROCEDURES

Disciplinary counsel should screen complaints and conduct an investigation when the
facts alleged, if true, would constitute a violation of the Montana Rules of
Professional Conduct.

Recommendation 7: Review Panels

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The Commission on Practice should be divided into three person panels to review the
recommendations of disciplinary counsel after investigation and decide whether to
dismiss, issue a cautionary letter or private reprimand, or direct that formal charges
be filed.

The Montana System

Currently all cases are referred to the full Commission for review after a complaint has
been filed and the respondent has answered the complaint. No screening occurs. The files
are given to individual Commission members for review. Each Commission member
reports at the next meeting on the files he or she reviewed. The Commission reviews
approximately 100-120 cases at each meeting with each member reporting on
approximately 10 cases. The Commission determines whether to dismiss the matter, issue
a cautionary letter or a private reprimand, or assign the matter to a volunteer investigator.
After the report from the volunteer investigator has been received, the Commission
determines whether formal charges should be filed.

ABA Report, at 19.

Recommendation 9: Hearings

Hearings should be conducted by the nine Commission on Practice members who did
not serve on the review panel that determined probable cause existed to file formal
charges in the matter.

The Montana System

All members of the Commission sit as the hearing body after having reviewed all matters
at the investigation and probable cause stages.

Effects on the Montana System

As discussed in Recommendation 1, the current system creates an appearance of
unfairness.

The Recommendation

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The Commission on Practice has argued that the current system of its involvement at each
stage is appropriate because its role is to remain informed about and involved in all phases
of the disciplinary process, acting as the "eyes and ears" of the Supreme Court in order to
make appropriate recommendations to the Court, which remains ultimately responsible for
lawyer discipline in the state. The team believes, however, that the separation of the
prosecutorial and adjudicative functions is essential to maintaining a system that is and
appears to be fair and one in which the public and the bar can have confidence. If the
Court were to delegate additional authority to the Commission to impose some types of
public discipline, which Commission members agreed is possible as the volume of
complaints increases, the separation of prosecutorial and adjudicative functions will be
required.

In order to keep the investigative and adjudicative functions separate, the members who sit
on the review panel of a case should not participate on the hearing panel for that case.
Thus, the team recommends that the nine Commission members who did not participate in
the probable cause determination sit as the hearing body in the case.

An alternative utilized in a number of states would be for the Commission on Practice,
composed of twelve members, to be divided into four panels comprised of two lawyers
and one non-lawyer. After review by one panel of the Commission, a case would go to
another three member panel for hearing. This approach separates investigative and
adjudicative functions of the Commission and makes scheduling of the hearing dependent
on a smaller number of people.

ABA Report, at 23-24.

B. The Majority Opinion

¶60.The foregoing analysis and recommendations offered by the ABA Report could not be
more germane to the controversy at bar.

¶61.As this Court's opinion points out, Goldstein and Albers primarily assert that the
procedures employed under Rule 9 by the COP violate their due process rights on the
grounds that they "improperly vest both investigatory and adjudicatory functions in one
body," and therefore deny their right to an impartial tribunal. As one of the amici suggests,
despite the Commission's best efforts in this matter, its members "came into the hearing
room with their minds made up."

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¶62.A fair and impartial tribunal is a basic guarantee of due process under both the United
States and the Montana Constitution. See, e.g., State v. Moore (1994) 268 Mont. 20, 51,
885 P.2d 457, 477. Critical to any review of the Rules here is the principle that due
process violations may be adjudged not only on the basis of actual harm--the lack of
which the majority ultimately relies on for its decision--but also on the basis of the
appearance or risk that potential harm or prejudice may occur due to an inherent flaw in
the process itself. See Mayberry v. Pennsylvania (1971), 400 U.S. 455, 469, 91 S.Ct. 499,
507, 27 L.Ed.2d 532 (Harlan, J., concurring) (stating that "the appearance of even-handed
justice . . . is at the core of due process"). As previously stated, the failure of due process
in Montana's attorney disciplinary scheme does not lie with the COP or with the attorney
investigators and special counsel, but, rather with the structural lack of due process
afforded by the Rules themselves. Thus, the majority's "no harm, no foul" approach does
not solve the problem nor is this tack consistent with the standards of due process which
we have articulated for tribunals in non-lawyer discipline cases. As we have stated, "any
tribunal permitted by law to try cases and controversies not only must be unbiased but also
must avoid even the appearance of bias." May v. First Nat. Pawn Brokers, Ltd. (1994),
269 Mont. 19, 24, 887 P.2d 185, 188 (quoting Commonwealth Coatings Corp. v.
Continental Casualty Co. (1968), 393 U.S. 145, 150, 89 S.Ct. 337, 340, 21 L.Ed.2d 301
(emphasis added).

¶63.In support of the respondents' position, several amici have persuasively argued that
without sufficient "walls of division" between the investigative/prosecutorial and judicial
functions of the COP, the actual threat or appearance of bias will persist under the current
attorney disciplinary rules. See generally Lyness, M.D. v. State Board of Medicine (Pa.
1992), 605 A.2d 1204, 1209-10 (holding that a physician's due process rights were
violated by commingling of prosecutorial and adjudicatory functions within single multi-
administrative board). Consequently, until such changes as those suggested in the ABA
Report are implemented, the unfairness inherent in our own "commingling of
prosecutorial and adjudicatory functions" in the COP, as presently structured, will never
be corrected. The appearance of bias will continue to exist and with that appearance the
failure of due process.

¶64.The respondents and amici also persuasively argue that Montana lawyers are not
afforded the same measure of due process protection as are other professionals in
Montana. The majority also summarily rejects this argument, concluding that Montana
lawyers enjoy "more"protection in disciplinary proceedings than other professionals (a
determination that I will address later). I agree with the respondents and amici.

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¶65.Montana's Administrative Procedure Act, §§ 2-4-101 through 711, MCA, and the
statutes governing professional licensing, §§ 37-1-101 through 413, MCA, provide due
process "walls of division" in the investigative, prosecutorial and adjudicative phases of
the discipline process for other professions that are lacking in Montana's attorney
disciplinary system. Thus, other professionals in Montana are afforded a hearing examiner
or "judge" assigned on the basis of his or her "expertise required for the particular matter,"
under § 2-4-611(1), MCA, or an independent hearing examiner selected from the attorney
general's office or from another agency, under § 2-4-611(2), MCA. Other professionals
have the right to move for disqualification of the examiner due to bias or lack of
independence, under § 2-4-611(4), MCA. Other professionals are guaranteed that final
decisions of a disciplinary board will be made by persons who did not serve on the
"reasonable cause" screening panel, and that the preliminary investigators will not be
permitted to participate in the subsequent hearing of a case, under § 37-1-307(1)(e), MCA.

¶66.These sorts of "walls of division" are an essential component of due process and are
the centerpiece of the ABA Report's recommendations. Unfortunately, this concept is also
summarily dismissed by the majority. Even the low-impact suggestion of dividing the
COP into panels comprised of two lawyers and one non-lawyer, so as to separate the
investigative functions of one panel from the adjudicative functions of a different panel is
rejected.

¶67.Rather, in concluding that the procedures set forth under Rule 9, do not impermissibly
combine functions, the majority relies on this Court's decision in Wyse--a 15-year old case
which was decided under a completely different disciplinary scheme, i.e., the 1965
(2)
disciplinary rules. According to the majority, the due process issues raised here, under
the current 1983 rules, were presumptively addressed and resolved by our decision in
Wyse. Our opinion states at ¶ 22 that: "the Court [in Wyse] specifically noted that the due
process protections which it identified under the rules which controlled in Wyse continue
to be provided under the then newly-adopted Rules on Lawyer Disciplinary Enforcement."

¶68.I do not disagree that in Wyse the issue of whether the COP serving as "prosecutor,
judge and jury" deprives an attorney of due process was raised by the respondent, just as it
has been raised here. Wyse, 212 Mont. at 345, 688 P.2d at 761. The problem with the
majority's reliance on Wyse is that once the separation of functions issue was clearly set
out in that case, we disposed of it without actually addressing its merits.

¶69.We stated that "[u]nder both sets of rules, and particularly under the rules applicable

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to Wyse [the 1965 rules], the proceedings before the COP are designed to establish a
record upon which this Court must act." Wyse, 212 Mont. at 346, 688 P.2d at 762
(emphasis added). We continued our due process analysis by determining that the
respondent attorney also had been afforded: 1) full right of representation by counsel, 2)
confrontation of witnesses, 3) the adducement of evidence in his own behalf, and 4) the
right to argue the merits on the facts and law. Wyse, 212 Mont. at 346, 688 P.2d at 762.
We then concluded:

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, 212 Mont. at 346, 688 P.2d at 762.

¶70.None of the foregoing due process rights which we discussed, however, even remotely
implicated Wyse's right to an impartial tribunal and the separation of investigative,
prosecutorial and adjudicative functions under the 1965--much less under the 1983 rules,
where such "walls of division" do not exist. Even assuming that the elements of procedural
due process addressed in Wyse apply to the current rules, the specific due process issue
raised by Goldstein and Albers--whether the disciplinary rules deny their right to an
impartial tribunal--has never been addressed by this Court, and Wyse cannot be relied on
for that proposition, the majority's conclusion to the contrary notwithstanding.

¶71.Moreover, a review of related decisions by this Court reveals that Wyse, in fact,
followed a trend of ducking procedural due process analysis--a trend which the majority
here seems willing to blindly follow. For example, in a rather lengthy and detailed
decision issued prior to Wyse, this Court skirted the opportunity to render a comprehensive
analysis of procedural due process as applied to the disciplinary rules. We stated: "[a]ll
due process requires . . . is the attorney be given a fair hearing before the Commission. He
has received this." Matter of Goldman (1978), 179 Mont. 526, 551, 588 P.2d 964, 978
(addressing the due process right to cross examine witnesses against the attorney). We
then only peripherally addressed the issue of whether it was "improper for the chairman of
the Commission on Practice to act as both the person in charge of the hearing, and as the
trier of the facts." We concluded that no prejudice occurred. Goldman, 179 Mont. at 552,
588 P.2d at 978. However, we reached this conclusion without any comprehensive review
of procedural due process under either a federal or state law. See also In re Porter (1970),

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156 Mont. 190, 190-91, 478 P.2d 866, 866-67 (addressing without reference to due
process whether it was "unfair" for the Commission to first secure counsel to present the
results of its investigation and then "sit in judgment on its merit").

¶72.Simply put, neither Wyse nor any other Montana case has substantively addressed and
properly resolved the separation of functions/impartial tribunal/due process issues raised
by Goldstein and Albers in the instant proceeding. The majority's reliance on Wyse for the
contrary conclusion is, as Abraham Lincoln is reported to have observed, "as thin as the
homeopathic soup that was made by boiling the shadow of a pigeon that had been starved
to death." See Beamsley v. Commissioner of Internal Revenue (7th Cir. 1953), 205 F.2d
743, 748.

¶73.Even more disturbing is the majority's reliance on the U.S. Supreme Court's decision
in Withrow v. Larkin (1975), 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712. For nearly 20
years, Withrow has been argued for the tenuous principle that combining investigatory
functions with adjudicative functions does not, "without more," deny due process in
attorney disciplinary proceedings. See, e.g., In re Davis (Ariz. 1981), 628 P.2d 38, 40
(citing Withrow and concluding that it was not "unfair" for an attorney disciplinary
committee chairman to initiate and then participate in a formal hearing). Attorney
disciplinary proceedings, however, were not even mentioned in Withrow, nor did the
Court cite to any of its own case law concerning attorney disciplinary proceedings in its
decision.

¶74.Rather, as the majority here acknowledges, the Withrow Court upheld the
constitutionality of an administrative disciplinary system for Wisconsin physicians, a
system entirely regulated by Wisconsin's state legislature. Therefore, Withrow does not
specifically address the unique "quasi-criminal" process by which states' judicial branches
discipline attorneys--a unique classification which the Court itself established prior to the
Withrow decision. See In re Ruffalo (1968), 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.
Ed.2d 117 (recognizing that such proceedings are neither criminal nor civil, but are
"adversary proceedings of a quasi-criminal nature"), modified on other grounds, (1968),
392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380. See also Tweedy v. Oklahoma Bar Ass'n
(Okla. 1981), 624 P.2d 1049, 1053 (acknowledging the Withrow holding, and stating that
in "contrast to the principles which affect administrative agencies, due process is offended
when a judicial institution functions both as an organ of enforcement and adjudication);
Razatos v. Colorado Supreme Court (10th Cir. 1984), 756 F.2d 1429, 1435 (identifying
attorney disciplinary proceedings as "definitely judicial rather than administrative in

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nature").

¶75.This Court, like the Oklahoma Supreme Court in Tweedy and most other states,
possesses original and exclusive jurisdiction in all matters involving the admission of
persons to the bar and sole responsibility for disciplining unprofessional and unethical
conduct of its members. See Wyse, 212 Mont. at 345-46, 688 P.2d at 762 (citing Article
VII, Section 2(3) of the Montana Constitution). The legal profession in this country, as
noted by Chief Justice Marshall in 1824, has always been one regulated by the judiciary
itself. See Ex parte Burr (1824), 22 U.S. (9 Wheat.) 529, 530, 6 L.Ed. 152.

¶76.As an arm of this Court, the COP is necessarily bound by all precedents regarding the
impartiality of the judiciary in relation to prosecutorial functions. Therefore, "[c]
oncentrating the powers of judge and prosecutor in the same person or body poses an
unreasonably high risk of compromising the protected and cherished value of judicial
detachment and neutrality." Tweedy, 624 P.2d at 1053 (citations omitted). Although
factually distinguishable from the matter at bar, the underlying principles expressed in
Tweedy relative to the Oklahoma attorney disciplinary process remain the same: "[v]esting
prosecutorial duty in a judge is incompatible with the Constitution's command for an
untrammeled exercise of adjudicative function." Tweedy, 624 P.2d at 1053 n.8 (citations
omitted).

¶77.This critical distinction addressed in Tweedy is precisely why Withrow should not be
applied to attorney disciplinary proceedings. Unfortunately, that has not been the case.
According to the rather misleading reasoning of Withrow, because judges in criminal
matters "issue arrest warrants on the basis that there is probable cause to believe that a
crime has been committed and that the person named in the warrant has committed it," and
then the same judge presides over the defendant's trial, this combination of "investigative"
and "adjudicative" functions does not, "without more," violate due process. See Withrow,
421 U.S. at 56-58, 95 S.Ct. at 1469-70 (stating that where the same agency makes the
"initial charge or determination of probable cause and the ultimate adjudication" in
"tandem" does not result in a procedural due process violation). This same illustration is
relied on by the majority here. See ¶ 25. That does not make the analogy any less faulty,
however.

¶78.A judge determines probable cause and issues an arrest warrant for the plain and
simple reason that the Constitution requires that certain functions in the criminal process
be kept separate, and not combined. Unlike the COP (the "trial tribunal") in Montana's

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present disciplinary scheme, a judge does not investigate criminal activities and then file
or direct the filing of criminal charges on the basis of the investigation. A judge does not
decide who should be arrested. Rather, the prosecutor--a member of the executive branch
of government--performs these investigative and charging functions. It is the prosecutor
who requests the issuance of an arrest warrant from the neutral and detached magistrate
who has determined only that probable cause supports the charge and the issuance of the
warrant. While the same judge who made the probable cause determination may
ultimately preside over the trial of the criminal case, the judge does not have a vested
interest in the outcome by reason of the judge's having investigated the case and having
determined that, or what charges should be filed in the first instance. In fact, whether the
case comes to trial at all, is plead out, or is dismissed altogether, are basically
prosecutorial, not judicial, decisions. See State ex rel. Fletcher v. District Court (1993),
260 Mont. 410, 415, 859 P.2d 992, 995. Furthermore, unless the defendant waives his
constitutional right to a jury trial, the accused's guilt will not even be decided by the judge.

¶79.Moreover, as the U.S. Supreme Court has often stated, "[t]he prominent place the
warrant requirement is given in our decisions reflects the basic constitutional doctrine that
individual freedoms will best be preserved through a separation of powers and division of
functions among the different branches and levels of Government." Arkansas v. Sanders
(1979), 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (emphasis added)
(citation omitted). Similarly, we have recognized the same principle in our own
jurisprudence in stating that probable cause and the scope of a search must "be drawn by a
neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime." State ex rel. Townsend v. District Court
(1975), 168 Mont. 357, 363, 543 P.2d 193, 195 (quoting Johnson v. United States (1948),
333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436).

¶80.Indeed, the illustration used by the Court in Withrow does not even mesh with its own
jurisprudence. As noted already, eight years prior to Withrow, the U.S. Supreme Court
explicitly recognized an attorney's basic right to procedural due process in a disciplinary
proceeding. Ruffalo, 390 U.S. at 550, 88 S.Ct. at 1226. Specifically, the Ruffalo Court held
that the absence of "fair notice as to the reach of the grievance procedure and the precise
nature of the charges" deprived the attorney of his procedural due process. Ruffalo, 392 U.
S. at 552, 88 S.Ct. at 1226. See also Cafeteria & Restaurant Workers Union v. McElroy
(1961), 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (stating that
"consideration of what procedures due process may require under any given set of
circumstances must begin with a determination of the precise nature of the government

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function involved").

¶81.Since Ruffalo was decided, the U.S. Supreme Court has not revisited due process
violations specifically concerning state attorney disciplinary proceedings. Unfortunately,
however, the skewed logic of Withrow has made its way into the due process
jurisprudence of numerous state courts that have addressed the same issue presented here.
See, e.g., People v. Varallo (1996), 913 P.2d 1, 4-5 (following Withrow and finding no per
se due process violation in combination of investigative and adjudicative functions in
attorney disciplinary proceedings, and citing to similar decisions that relied on Withrow
from California, Connecticut, Kansas, Michigan, Utah, and Wyoming).

¶82.However, a closer look at many of the states that have adopted Withrow reveals that,
even in those jurisdictions, the "walls of division"--as suggested here by the ABA Report,
the respondents and by amici--have been implemented to maintain the appearance of
impartiality. See, e.g., Varallo, 913 P.2d at 4 (noting that "[n]o member of the hearing
board or hearing panel can exercise investigative or prosecutorial functions because of the
separation between the inquiry panel and hearing panel"). Rather, it remains, that

Montana is the only jurisdiction in the United States that has no professional staff
employed in the investigation and prosecution of complaints against attorneys. The
Commission on Practice handles a complaint at every stage in the process until final
adjudication by the Montana Supreme Court.

ABA Report, at 9.

¶83.Additionally, in joining these states, the majority fails to acknowledge those courts
which have carefully delineated elements of due process specifically for attorney
disciplinary proceedings. See Wilburn Brewer, Jr., Due Process in Lawyer Disciplinary
Cases: From the Cradle to the Grave, 42 S.C.L. Rev. 925 (1991) (identifying seven
elements of due process in attorney disciplinary proceedings). See also In re Robson
(Alaska 1978), 575 P.2d 771 (discussing right to neutral decision-maker and holding that
counsel associated with either the prosecution or defense of attorney disciplinary
proceeding should not be present during deliberations); State v. Turner (Kan. 1975), 538
P.2d 966 (discussing right to public hearing); People v. Morely (Colo. 1986), 725 P.2d 510
(identifying right to call and cross-examine witnesses); In re Meade (Wash. 1985), 693
P.2d 713 (examining right to counsel); Kentucky Bar Ass'n v. Shewmaker (Ky. 1992), 842
S.W.2d 520 (discussing right to pretrial discovery and taking of depositions); Matter of

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Jaques (E.D.Tex. 1997), 972 F.Supp. 1070 (requiring burden of clear and convincing
evidence).

¶84.Similarly, in In re Schlesinger (Pa. 1961), 172 A.2d 835, the Pennsylvania Supreme
Court, relying on the U.S. Supreme Court's decision in In re Murchison (1955), 349 U.S.
133, 75 S.Ct. 623, 99 L.Ed. 942, expressly ruled that the combination of the functions of
prosecutor, judge and jury in an attorney disciplinary proceeding violated due process.
One of the concerns addressed by the Pennsylvania Court was that the Committee on
Offenses (like the COP in Montana) appointed counsel to prosecute on its behalf.
Schlesinger, 172 A.2d at 840. The court stated:

Here, a member of the bar, charged with unprofessional conduct by a bar Committee on
Offenses, was prosecuted on the Committee's complaint before a Subcommittee,
composed of three members of the Committee, sitting as the trial tribunal. In such a
procedure, so contrary to traditional American judicial concepts, unfairness was, ipso
facto, inherent; it was fraught with the possibility of temptation to each member of the trial
tribunal to favor, consciously or unconsciously, the prosecuting body which appointed him
and of which he was a member. The record as a whole contains a reasonable basis for
doubt as to whether impartiality on the part of the members of the tribunal was completely
absent and suggests an unsympathetic predisposition toward the appellant.

Schlesinger, 172 A.2d at 841. The Schlesinger court concluded that an actual "predilection to favor
one side over the other is not required in order to vitiate a judicial proceeding as being violative of due
process." Schlesinger, 172 A.2d at 841. Rather, the respondent need merely show that a "possible
temptation" exists. Schlesinger, 172 A.2d at 841.

¶85.Likewise, once the faulty logic of Withrow is discarded, our own case law clearly
points to the necessity for separating the investigative, prosecutorial and adjudicative
functions in our system of disciplining lawyers. For example, in State v. Wilson (1994),
266 Mont. 146, 879 P.2d 683, we concluded that a search warrant issued by a justice of
the peace was invalid because he had traveled with a sheriff to recover evidence of the
crime and had discussed the evidence and investigation with the sheriff. Wilson, 266
Mont. at 149, 879 P.2d at 684-85. We ruled that by becoming a member of the
"investigatory team," the justice of the peace could no longer make a neutral and detached
evaluation of evidence. Wilson, 266 Mont. at 149, 879 P.2d at 684-85. See also Matter of
Sorini (1986), 220 Mont. 459, 464, 717 P.2d 7, 11 (Sheehy, J., dissenting) (addressing
administrative hearing process and stating that the "most elemental notions of due process
ought to tell us that objectivity is impossible when one party owns both the prosecutor and

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the judge"). See also, Townsend, supra.

¶86.While the majority extolls the adequacy of due process provided under Montana's
attorney disciplinary scheme, a closer look demonstrates how the failure to separate
functions destroys, if not the fact, at least the perception of impartiality. Under our
disciplinary rules, the COP may upon its own volition order an investigation into an
attorney's misconduct. Rule 9A. If not satisfied with the results of this investigation--akin
to a finding that no probable cause exists warranting arrest--the COP may nevertheless
institute a formal disciplinary proceeding, and then appoint a "special counsel" to file a
complaint with the COP. Rule 9C. At the direction of the COP, the special counsel, whose
role can be likened to that of a prosecutor, sets forth "the charges with sufficient clarity
and particularity so as to inform the respondent of the alleged misconduct." Rule 9C.
Subsequently, the COP's presiding officer--either the chairperson or another member of
the COP appointed by the chair--sits as judge at the hearing, with the authority to "rule on
all motions, objections, and other matters presented in connection with such hearing." Rule
9C.

¶87.That the foregoing combines the functions of adversary-investigator/ prosecutor with
neutral and detached judicial/decision-maker is obvious. As the ABA Report observed:

Having the same group perform oversight and review functions at each stage in the
process as well as conduct hearings and make findings, conclusions, and recommendations
to the Supreme Court creates an appearance of unfairness, although no improprieties were
found. It is difficult for any person to review complaints initially to determine whether
they should be investigated, review them again after investigation to determine whether
formal charges should be filed and then sit as an impartial adjudicator.

ABA Report, at 9.

¶88.In short, under Montana's lawyer disciplinary rules, the "judge" (COP) has the power
to direct the "police" (investigator) to investigate a suspect (the respondent attorney), then
tell the "prosecutor" (special counsel) what charges to bring, and then, even against the
advice of both the "police" and the "prosecutor," order that the suspect be brought to trial.
The "judge" then decides the "guilt" of the accused on the charges it ordered filed.

¶89.Such a scheme simply does not and cannot afford attorneys subject to discipline with
the neutral and detached decision-maker that due process requires. Following the

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reasoning suggested by the courts in Tweedy and in Schlesinger, as well as the notion that
the judicial decision maker cannot be part of the "investigatory team" as we stated in
Wilson, it is clear that the disciplinary procedures established under Rule 9 violate the
right to due process of law guaranteed to attorneys under Article II, Section 17 of
Montana's Constitution.

¶90.Moreover, the fact that we have now chosen to march lockstep with the U.S. Supreme
Court and certain of our sister jurisdictions in applying the contrary logic of Withrow does
not alter the fact that we have utterly failed to provide the respondents here, and all
Montana lawyers subject to discipline, with the "most exacting demands of due process of
law." Law Students Civil Rights Research Council, Inc. v. Wadmond (1971), 401 U.S. 154,
174, 185, 91 S.Ct. 720, 731, 737, 27 L.Ed.2d 749 (Black and Douglas, JJ., dissenting)
(stating that members of a state bar "should not be disciplined . . . without full and
unquestioned due process of law and protection of all their constitutional rights . . . .
before an unquestionably impartial tribunal"). Indeed, for a Court that is defiantly proud of
providing more protection to our citizens under Montana's Constitution than they might
enjoy under the federal constitution, we have completely abrogated our responsibility to
interpret Article II, Section 17 in that fashion, choosing, instead, to rely on the logic of a U.
S. Supreme Court case that did not even involve due process in the context of unique,
quasi-criminal attorney disciplinary proceedings.

¶91.Montana attorneys subject to discipline are entitled to no less due process than are
administrative agency employees, pursuant to §§ 2-4-101 through 711, MCA, and other
licensed professionals in Montana pursuant to § 37-1-101 through 413, MCA. I would
hold the procedures under Rule 9 which fail to separate the adjudicative function from the
investigative and prosecutorial functions of the COP and which, thus, fail to guarantee an
impartial tribunal are per se violative of the due process clause of Montana's Constitution,
Article II, Section 17, and are, therefore, unconstitutional.

II. Rule 13

¶92.Along the same lines, I also disagree with our decision as to Rule 13. The majority
concludes that Rule 13's confidentiality requirements, which prevent an accused attorney's
access to investigation information made prior to filing a formal complaint, do not violate
due process. Specifically, Rule 13A provides:

Confidentiality. All disciplinary proceedings which are prior in time to the filing of a

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formal complaint with the Clerk of the Supreme Court and service upon the respondent as
provided in Rule 11A of these rules, and all documents in connection therewith shall be
confidential.

¶93.The majority summarily concludes at ¶ 42 that "any evidence relating to portions of an
informal complaint not included in the formal charges filed against an attorney is not
relevant, much less important, to the respondent attorney's preparation to meet the charges
at the formal hearing." Yet, the majority then suggests at ¶ 43 that Rule 13 may
necessarily be abridged: "any exculpatory evidence which was filed before the formal
complaint and which relates to matters eventually included in the formal complaint must
be disclosed to the respondent attorney." As written, the Rule simply does not require such
a disclosure.

¶94.This obvious contradiction between the actual language of Rule 13 and our apparent
recognition of the due-process necessity for disclosure of exculpatory information is
"resolved" by our review of the Commission's files and our conclusion that no exculpatory
evidence could be found. No doubt our determination in that regard will be of great
comfort to Goldstein and Albers (and to future attorneys who may be the beneficiaries of
our similarly magnanimous in camera review). The point is, the plain language of Rule 13
does not guarantee that exculpatory information contained in pre-formal complaint files
will be available to the accused attorney. Due process is offended by that fact, alone. And,
it bears repeating that, for the purposes of due process, actual harm need not be shown.
Mayberry, 400 U.S. at 469, 91 S.Ct. at 507; Schlesinger, 172 A.2d at 841.

¶95.Of even greater import, however, is the fact that Article II, Section 9 of Montana's
Constitution requires that matters filed with the COP--whether pre-complaint or post
complaint be available for inspection by the accused attorney. The guarantees provided to
citizens, including attorneys, under the "right to know" provision of Montana's
Constitution are as binding upon this Court and its disciplinary arm, the COP, as on any
other branch or agency of government. In fact, we stated in Associated Press v. Board. of
Public Educ. (1991), 246 Mont. 386, 391, 804 P.2d 376, 379, that "[f]irst and foremost, is
the realization that the Constitution is the supreme law of this State. Its mandate must be
followed by each of the three branches of government." (Emphasis added). It is, thus,
(3)
appropriate to begin by discussing this mandate.

¶96.Article II, Section 9 of the Montana Constitution provides:

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Right to know. No person shall be deprived of the right to examine documents or to
observe the deliberations of all public bodies or agencies of state government and its
subdivisions, except in cases in which the demand of individual privacy clearly exceeds
the merits of public disclosure. (Emphasis added).

My research reveals no Montana case law ruling on the applicability or inapplicability of
this constitutional provision to the judicial branch or, more specifically, to the proceedings
and deliberations of this Court and, hence to the COP. Therefore, I turn to the rules of
constitutional construction.

¶97.In resolving disputes of constitutional construction, this Court applies the rules of
statutory construction. Under those rules, the intent of the framers of the Constitution is
controlling and that intent must first be determined from the plain meaning of the words
used. Butte-Silver Bow Local Gov't v. State (1989), 235 Mont. 398, 403, 768 P.2d 327,
330 (citation omitted). Moreover, under these rules, if the language is clear and
unambiguous, no further interpretation is required. Lovell v. State Comp. Mut. Ins. Fund
(1993), 260 Mont. 279, 285, 860 P.2d 95, 99 (citation omitted). The courts may not go
further and apply any other means of interpretation, Tongue River Elec. Coop. v. Montana
Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864 (citation omitted), nor may a
judge insert into a constitutional provision what has been omitted or omit what has been
inserted. See § 1-2-101, MCA.

¶98.Applying these well-settled rules of constitutional construction, it is clear that the
plain language of Article II, Section 9, does not exempt this Court, much less its
disciplinary arm, from the provision's mandate. Rather, Montana's constitutional "right to
know" unambiguously covers the deliberations of all public bodies of state government.
That includes this Court and the COP.

¶99.Nonetheless, even ignoring the clarity of Article II, Section 9, and the dictates of our
constitutional construction jurisprudence, the proceedings of the 1972 Constitutional
Convention also lead to the conclusion that the "right to know" requirements do not apply
exclusively to the legislative and executive branches of state government and its
subdivisions to the exclusion of the judicial branch.

¶100.In point of fact, the delegates to the Constitutional Convention amended the language
of what became Article II, Section 8 of the Montana Constitution, which gives the public
the right to participate in the operations of governmental agencies, on Delegate Berg's

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motion, so as to exclude the judicial branch. See Montana Constitutional Convention,
Verbatim Transcript, March 7, 1972, at 1663-67 (1981) (comments of Delegates Berg,
Dahood, and McNeil). Notwithstanding that these same delegates discussed the language
of what became Article II, Section 9 of the Montana Constitution on the same afternoon
that they amended the language of what became Article II, Section 8, they did not even
discuss amending the language of what became Article II, Section 9, so as to exclude the
judicial branch. See Verbatim Transcript, at 1667-1680.

¶101.Delegate Berg, however, subsequently moved to amend the language of what
became Article II, Section 9, out of his concern that the phrase "public bodies" could be
interpreted to include juries, grand juries, or the deliberations of this Court. Verbatim
Transcript, at 2499-2501. Delegate Dahood stated that he agreed with Delegate Berg and
that the committee was "not trying to upset any traditional rule of procedure with respect
to anything within the judiciary." Notwithstanding, Delegate Dahood stated that he would
not amend the section as Delegate Berg had suggested. Delegate Berg then stated in his
closing statement in support of his motion that "my purpose in asking to delete the word[s]
'bodies or' is to eliminate the potential interpretation that it might include juries, grand
juries, [or] Supreme Court deliberations." Verbatim Transcript, at 2501. Despite Delegate
Berg's concerns, his motion failed. Verbatim Transcript, at 2501.

¶102.Thus, even though Delegate Berg expressed the same concern with regard to what
became Article II, Section 8, and what became Article II, Section 9, the delegates
amended only the language of what became Article II, Section 8, so as to exclude the
judicial branch. More to the point, the delegates declined to amend the language of what
became Article II, Section 9, so as to exclude the judicial branch even though faced with
the same concern that prompted them to amend what became Article II, Section 8.

¶103.Hence, not only the plain language but also the constitutional history of these
companion provisions of the Montana Constitution show that Article II, Section 9, is
broader than Article II, Section 8. Article II, Section 9, gives the public the right to
observe the deliberations of all public bodies and agencies while Article II, Section 8,
gives the public the right to participate only in the operations of agencies. That, of course,
begs the question whether this Court is a "public body." The answer to this question is
undeniably "yes."

¶104.In Common Cause v. Statutory Committee (1994), 263 Mont. 324, 329, 868 P.2d
604, 607, we noted that the rights, which Article II, Section 9, guarantees, are protected

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and implemented primarily through Montana's open meeting statutes, codified at §§ 2-3-
201 through 221, MCA. One of these statutes, § 2-3-203(1), MCA, provides:

All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of
the state, or any political subdivision of the state or organizations or agencies supported in
whole or in part by public funds or expending public funds must be open to the public.
(Emphasis added).

In Common Cause, we recognized that the legislature did not define "public body" or
"governmental body" in the open meeting statutes. Common Cause, 263 Mont. at 330, 868
P.2d at 608. Thus, we gave the words in these phrases their "plain, ordinary and usual
meaning" and stated that "the common understanding of the phrase 'public or
governmental body' would include a group of individuals organized for a governmental or
public purpose." Common Cause, 263 Mont. at 330, 868 P.2d at 608 (citations omitted).
There can be no doubt, this Court is a group of individuals organized by and under the
Montana Constitution for a governmental purpose--as is the COP, the appointed
disciplinary arm of this Court. It follows, then, that this Court and its COP are both public
or governmental bodies.

¶105.Similarly, in Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, ¶ 16, 289 Mont.
155, ¶ 16, 959 P.2d 508, ¶ 16, this Court, in determining whether the Department of
Corrections Committee for Private Prison Screening and Evaluation was a "public body,"
looked to the Montana Procurement Act, which defines "governmental body" as:

[A] department, commission, council, board, bureau, committee, institution, legislative
body, agency, government corporation, or other entity, instrumentality, or official of the
executive, legislative, or judicial branch of this state, including the board of regents and
the Montana university system.

Section 18-4-123(11), MCA (emphasis added). We stated that, since the committee was a
committee of the executive branch of government, and a "governmental body" for
purposes of procurement, "it necessarily follows that it is an agency of state government to
which Article II, Section 9, applies." Great Falls Tribune, ¶ 17. This Court is clearly an
"entity . . . of the . . . judicial branch of this state," and, therefore, a "governmental body."
Section 18-4-123(11), MCA. Thus, it "necessarily follows" that this Court is a "public
body" to which Article II, Section 9, applies. Great Falls Tribune, ¶ 17. It also
"necessarily follows" that the COP, as the disciplinary arm of the judicial branch of

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government, is an agency of state government to which Article II, Section 9, applies.
Great Falls Tribune, ¶ 17

¶106.The same conclusion can be drawn from our decision in Becky v. Butte-Silver Bow
Sch. Dist. 1 (1995), 274 Mont. 131, 906 P.2d 193. In Becky, this Court, in determining
whether the records of an organization were "documents of public bodies," looked to § 2-6-
101(2)(a), MCA, which states that "public writings" are:

[T]he written acts or records of the acts of the sovereign authority, of official bodies and
tribunals, and of public officers, legislative, judicial, and executive, whether of this state,
of the United States, of a sister state, or of a foreign country;

Becky, 274 Mont. at 137, 906 P.2d at 197 (quoting § 2-6-101(2)(a), MCA) (emphasis added). Section 2-
6-101, MCA, also states that there are four classes of public writings and that "judicial records" are one
of the classes. Section 2-6-101(3)(b), MCA. Finally, although we recognized that "documents of public
bodies" is not defined in the Montana Constitution, we stated that "it must reasonably be held to mean
documents generated or maintained by a public body which are somehow related to the function and
duties of that body." Becky, 274 Mont. at 138, 906 P.2d at 197.

¶107.Applying the definition of "public writings" found in § 2-6-101(2)(a), MCA, it is
clear that most, if not all, of the documents which this Court generates and maintains are
"public writings," and, therefore, are "documents of a public body." Thus, since the
documents which this Court generates and maintains are "documents of a public body," it
follows (perhaps backwardly) that this Court is a "public body" to which Article II,
Section 9, applies. Similarly, documents filed with and generated by the COP as the
disciplinary arm of this Court are likewise "documents of a public body."

¶108.As these cases demonstrate, this Court has been particularly vigilant and
uncompromising in protecting Montanans' constitutional "right to know" and in rejecting
other governmental bodies' attempts to limit or subvert this right. In Great Falls Tribune,
for example, the committee argued that the public's right to observe its meetings with
private companies which had submitted proposals to build a private correctional facility in
Montana and to review the papers associated with the companies' proposals was
outweighed by the companies' right to privacy in the information that they had submitted.
Great Falls Tribune, ¶ 8. We held, however, that the Great Falls Tribune had a
constitutional right under Article II, Section 9, to observe the committee's deliberations
and to examine the committee's documents, including proposals that had been submitted to
it. Great Falls Tribune, ¶ 33. We also stated that the only exception to the public's right to

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observe the committee's deliberations and documents concerned information to which the
companies had a privacy interest. Great Falls Tribune, ¶ 33.

¶109.And, of course in the proceedings at bar, the only persons with privacy rights at
issue--Goldstein and Albers--have waived their rights.

¶110.In sum, and based on the foregoing, if there exists some valid argument for
exempting the filings (including pre-complaint filings), the deliberations and decision-
making processes of the COP from the operation of Article II, Section 9, the rationale is
neither apparent in the tenor of our prior jurisprudence nor, more importantly, in the plain
language of the constitutional provision itself or in the history of its adoption.

¶111.Therefore, I would hold that Rule 13 is unconstitutional, not only because it fails to
protect the due process rights of attorneys subject to discipline before the COP and this
Court, but, and more fundamentally, because the Rule violates the right to know
provisions of Montana's Constitution, Article II, Section 9.

De Novo Review

¶112.Finally, I am compelled to address the lynchpin of the majority's rationale, the
conclusion which runs throughout its opinion--that, because this Court retains de novo
review of the findings, conclusions and recommendations of the COP, attorneys' right to
due process, to impartiality and to even greater protection than that enjoyed by other
professionals in disciplinary proceedings is preserved. See ¶ 26.

¶113.True. This Court does retain de novo review, as the majority points out. The
protections provided by this review are illusory, however, and exacerbate, rather than
alleviate the prejudice inherent in Montana's disciplinary system.

¶114.First, let us ignore the fact that, according to the unchallenged statement of
Goldstein's attorney, in the past 25 years there cannot be found one case in which this
Court has rejected or substantially altered the findings of fact of the COP; that in only six
cases over the past 25 years did this Court alter the recommendations of the COP; that in
four of those cases we imposed a greater punishment than recommended; that in one case,
we imposed less punishment than that recommended; and in only one case, Matter of
McKeon (1982), 201 Mont. 515, 656 P.2d 179, did we actually reject the COP's
recommendation and reinstate the attorney to the practice of law. While the COP

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contended at oral argument that this track record proved how well the present system
worked, it is just as, if not more, likely that this simply proves that, not surprisingly, this
Court relies almost exclusively on and accepts without question the findings, conclusions
and recommendations of the "fact finder" COP, rather than on any de novo examination of
the record which we undertake.

¶115.Second, let us assume for purposes of this opinion, that every member of this Court
does, in fact, review every page of the record and transcript of every disciplinary
(4)
proceeding before voting on the COP's findings, conclusions and recommendations.
That still does not solve the problem that the members of this Court never actually see and
judge the demeanor and credibility of the witnesses who testify at the COP hearings or of
the respondent attorney subject to the disciplinary proceedings. And, this is no small
deficiency.

¶116.In Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132, grounding our
decision in due process considerations, we reversed the trial court, holding that it had
abused its discretion in allowing a party/witness in a contested proceeding to testify by
telephone over objection. Bonamarte, 263 Mont at 178, 866 P.2d at 1137. Among other
things we stated that requiring a witness to testify in the presence of the fact finder "assists
the trier of fact in evaluating the witness' credibility by allowing his or her demeanor to be
observed firsthand." Bonamarte 263 Mont. at 174, 866 P.2d at 1134. We then went on to
state:

The integrity of the fact finding process at trial is undermined where the parties do not
have the opportunity to confront each other or the witnesses, where the finder of fact does
not have the opportunity to observe the parties and the witnesses and where the opposing
party cannot effectively cross-examine the other party or the witnesses.

....

Here, it was impossible for the court to make a determination as to the relative credibility
of the party-witnesses because it did not have an opportunity to observe the testimony of
both Mark and Judith. . . . [I]t is the court's role to determine who is the more credible
witness. This can be accomplished most effectively by observing each party's demeanor
during testimony.

Bonamarte, 263 Mont. at 175-76, 866 P.2d at 1135 (emphasis added). We concluded by noting that:

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"The opportunity to observe a witness is so critical to judicial control and effective cross-examination
that its denial is manifestly prejudicial." Bonamarte 263 Mont. at 178, 866 P.2d at 1137 (quoting State
ex rel. Juv. Dept. v. Gates (Or. 1987), 740 P.2d 217, 218) (emphasis added).

¶117.We have subsequently reaffirmed our commitment to the Bonamarte rule in other
proceedings. See Taylor v. Taylor (1995), 272 Mont. 30, 34-35, 899 P.2d 523, 525-26
(contested administrative child support proceeding); Matter of B.C. (1997), 283 Mont.
423, 427-28, 942 P.2d 106, 109 (judicial termination of parental rights); Bean v. Montana
Board of Labor Appeals, 1998 MT 222, ¶ 33, 290 Mont. 496, ¶ 33, 965 P.2d 256, ¶ 33
(contested administrative unemployment compensation proceeding).

¶118.Given our application of the Bonamarte rule in both court cases and in administrative
proceedings and given our unequivocal determination of the importance to the "integrity
of the fact finding process" that the trier of fact actually be able to see and to judge the
credibility of witnesses and parties, I am at a loss to understand how this Court can
conduct any sort of a meaningful de novo review of COP proceedings from a cold review
of the record having never actually seen witness or party one.

¶119.Keep in mind that, as the majority goes to great lengths to repeatedly point out, the
saving grace for all the infirmities of the present attorney disciplinary scheme is that this
Court has "taken upon itself the sole responsibility to adjudicate lawyer ethical violations,"
¶ 26, and that "this Court exercises de novo review over the findings of the [COP]," ¶ 30,
which "makes only recommendations for discipline," ¶ 26. Taking that at face value, one
is left to ponder how--in the face of Bonamarte and its progeny--this Court can truly
exercise its awesome responsibility of de novo review of proceedings where members of a
profession can, literally, loose their livelihoods, their reputations, the benefit and expense
of years of training and education, and their entire careers without our ever even seeing
face-to-face the attorney being disciplined and his or her accusers and without being able
to judge their credibility.

¶120.I can only conclude that, like our refusal to abide by Article II, Section 9, as to our
deliberations, this is just another example of our telling the courts, administrative
agencies, litigants and the citizens of Montana, "Do as we say, not as we do."

Conclusion

¶121.I do not agree with any part of our decision. I would hold Rules 9 and 13
unconstitutional for the reasons set forth in this dissent. I would order immediately the

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sorts of reforms discussed herein as to Rule 9. I would allow attorney access to all
documents and papers filed with the COP. I would order the COP's deliberations opened.
And I would order Goldstein's and Albers' cases be reheard under these reformed
procedures.

¶122.I dissent from our refusal to do so.

/S/ JAMES C. NELSON

Justice W. William Leaphart, dissenting.

¶123 I join in ¶¶ 52 - 92 of Justice Nelson's dissent wherein he concludes that the procedures under Rule
9 fail to separate the adjudicative function from the investigative and prosecutorial functions of the
Commission on Practice and thus fail to assure an impartial tribunal as guaranteed by the due process
clause of the Montana Constitution, Article II, Section 17.

¶124 As to Rule 13, I agree with Justice Regnier that, to the extent it has been interpreted by the
Commission to deny an accused attorney access to information pertaining to the alleged misconduct, it
has been misinterpreted by the Commission.

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler dissenting.

¶125.I join in Justice Nelson's dissent from the majority opinion.

¶126.I take no particular satisfaction in this position and, in fact, originally voted with the majority to
affirm the attorney discipline process, except for Rule 13. However, after careful review of both
opinions, I find the dissent the better reasoned approach, and more consistent with Montana's elevated
standards for due process and the actual practices for reviewing disciplinary recommendations by this
Court.

¶127.I take no satisfaction in concluding that the disciplinary process for attorneys needs reform because
I, like Justice Nelson, have for a number of years reviewed the results of the Commission's work and
have no criticism of the Commission's efforts at a practical level. In fact, I, like other members of the
Court, have consistently voted to enforce the Commission's recommendations.

¶128.Having made that observation, however, I must also note that I for one do not personally review
every part of the record in every Commission proceeding. I simply don't have time to do so. And, as
pointed out by Justice Nelson, even if I had time to personally review the entire record in every
disciplinary proceeding, I wouldn't be in the position the Commission members are in to evaluate the

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credibility of witnesses who present conflicting evidence. I must necessarily defer, in most cases, to the
eyes and ears of the Commission members. Therefore, I agree with the dissent that this Court's
responsibility for independent review, should be no meaningful comfort to those attorneys who suspect
the disciplinary process because of its current structure.

¶129.My greatest concern, however, is with how the disciplinary system can continue to function
effectively as it is currently constructed. The commitment of time by current Commission members who
must necessarily be involved from start to finish in every complaint about attorney conduct is more than
should reasonably be asked of people who have full-time professional responsibilities. I assume that
with growth in the profession, greater public scrutiny of attorney conduct and increased sophistication
about what a client has a right to expect from his or her attorney, the workload for the Commission
members will only increase. In that event, I am concerned as was the team from the ABA, that a cross
section of attorneys will no longer be able to serve on the Commission. I am concerned that only those
attorneys who come from large firms which are willing to subsidize a member's participation, or those
attorneys who have nothing else to do, will be able to afford the commitment of time that service will
require. I believe that for the Commission to function well and perform fairly, it must include attorneys
from diverse professional backgrounds, including large firms, public service, small firms, and solo
practitioners. I frankly don't see how that will be possible with much more of a workload than the
Commission already has and I'm sure that those people currently serving on the Commission are making
substantial professional sacrifices to do so.

¶130.My joinder in Justice Nelson's dissent is not based on my conclusion that any attorney has been
treated unfairly by the Commission, including the two attorneys presently before the Court. It is based
simply on my conclusion that there is a better process for deciding whether discipline should be imposed
which is more consistent with the requirements of due process and which would, in the long-term,
function more effectively for all of those involved in that process, including Commission members.

¶131.Rule 13, on the other hand, is patently unfair and unconstitutional. While there may be some
privacy justification for maintaining confidentiality of the Commission's files up until a complaint is
filed, there is no justification for withholding information from an attorney against whom a complaint
has been filed. I concur that to do so, violates not only the attorney's right to due process, but Article II,
Section 9 of the Montana Constitution. Furthermore, it is not up to this Court, after the fact, to determine
what is or isn't exculpatory. No one will ever know the extent to which the record was undeveloped or
defenses not presented because of information on which the Commission relied and about which the
attorney under investigation was unaware.

¶132.It is not sufficient that Rule 13 be rewritten. There is no place in the disciplinary process for hide-
and-seek.

¶133.For these reasons, I join in the dissent authored by Justice Nelson.

/S/ TERRY N. TRIEWEILER

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Justice Jim Regnier concurring.

¶134.I feel compelled to write separately in response to Justice Nelson's thorough and detailed dissent.
In fact, I agree with many of his points, but in the end reach the conclusion that our attorney disciplinary
process in Montana is not constitutionally infirm, which of course, is the ultimate question we must
answer in this proceeding.

¶135.First, I think it is important to state what this case is not about. It is not whether our system in
Montana could be improved. The ABA report is a thorough evaluation with many excellent
recommendations.

¶136.The precise question presented is whether our attorney disciplinary process, taken as a whole,
violates the due process provisions of the constitutions of Montana and the United States. Goldstein and
Albers contend, as Justice Nelson energetically states, that the procedure in Montana is systemically
unfair. They argue that the combination of the investigatory and adjudicatory functions vested in the
same individuals who serve on the Commission renders the entire process, even if only in appearance,
unfair to the lawyers who are subjected to the process.

¶137.Justice Nelson's analysis begins with his conclusion that the United States Supreme Court's
decision in Withrow v. Larkin (1975), 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712, is not sound
authority for determining whether the combination of the investigatory and adjudicatory functions in
attorney disciplinary proceedings results in a denial of due process. He refers to the United States
Supreme Court's prior decision in In re Ruffalo (1968), 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117,
for the proposition that attorney disciplinary proceedings are quasi-criminal in nature and not
administrative as characterized in Withrow and therefore, a different analysis should apply.

¶138.Ruffalo, however, had nothing to do with the question of whether the combination of the
investigatory and adjudicatory function in an attorney disciplinary action violated due process. Rather,
Ruffalo addressed the question of whether there was a violation of due process in a disbarment
proceeding where the charges were amended during the proceeding and after the attorney and a key
witness had testified at length. The Court noted that an attorney is entitled to know the charges against
him before disbarment proceedings commence and he testifies at length. Allowing amendments to the
charges after such testimony which cannot be expunged amounts to a trap and a denial of due process.
Although the Court noted that the proceedings were quasi-criminal in nature, Ruffalo does not suggest
that Withrow would have no application to attorney disciplinary proceedings. Furthermore, the statutory
framework examined in Withrow actually allowed the Examining Board "to institute criminal action or
action to revoke license . . . ." It seems to me that the proceedings in Withrow which could ultimately
result in the loss of a medical license, are not materially different than proceedings which result in the
loss of the right to practice law.

¶139.The other authority cited by Justice Nelson for his criticism of Withrow is Tweedy v. Oklahoma
Bar Association (Okla. 1981), 624 P.2d 1049. The facts in Tweedy also presented a different question

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than the one that concerns us. There, a complainant brought proceedings against three attorneys. After
two separate investigations, the Professional Responsibility Commission concluded that the charges
were unripe for further proceedings. At that juncture, the complainant directly requested the Oklahoma
Supreme Court to issue an order compelling the Professional Responsibility Commission to conduct a
reinvestigation of the grievance. The Oklahoma Supreme Court concluded that the decision to
investigate a complaint was an executive function, which it could not exercise consistent with due
process standards and its adjudicatory responsibilities regarding attorney disciplinary proceedings.

¶140.I am confident that this Court would react in a similar fashion if requested to order our
Commission on Practice to reinvestigate a complaint against a lawyer, knowing that we would
ultimately sit in judgment regarding the lawyer's conduct. Tweedy correctly distinguished Withrow,
recognizing that administrative agencies are checked by both the legislature and the judiciary. In the
Montana scheme, however, the Montana Supreme Court serves as a check on the proceedings conducted
by the Commission on Practice much the same way that a district court provides a review of an
administrative agency's action, but with a more liberal de novo review. Tweedy was concerned with the
Oklahoma Supreme Court actually meddling with its Commission's investigatory role thus eliminating
the benefit of a detached review.

¶141.It is for these reasons, I surmise, that many of the states cited by Justice Nelson still recognize
Withrow, subsequent to the Ruffalo and Tweedy decisions, as sound authority for the principle that the
combination of adjudicatory and investigative functions does not result in a per se denial of due process.
In the final analysis, however, simply because the Montana attorney disciplinary procedures are not per
se unconstitutional "does not, of course, preclude a court from determining from the special facts and
circumstances present in the case before it that the risk of unfairness is intolerably high." Withrow, 421
U.S. at 58, 95 S. Ct. at 1470, 43 L. Ed. 2d at 730. Viewing the entire process in the cases before us, I
conclude that the "risk of unfairness is not intolerably high."

¶142.Regarding Rule 13, I believe it is being misinterpreted by the Commission. A plain reading
suggests to me that the confidentiality provision in the rule is meant to protect and not hinder attorneys
who appear before the Commission. Rule 13 was intended to protect the attorney accused of an ethical
violation; to ensure that information received prior to the filing of a formal complaint regarding an
attorney would not become public. It was not intended to deny an attorney accused of an ethical
violation access to the information gathered regarding his or her alleged misconduct.

¶143.I believe at the point the formal complaint is filed the attorney is entitled to all information
contained in the Commission's files regarding his or her proceeding. I would not, however, send this
matter back for further proceedings. A fair review of the nature of the charges against both respondents,
the filings made by their counsel, the opportunity to be heard, and the review of this Court of both files,
does not justify the unraveling of these entire proceedings.

¶144.Regarding Justice Nelson's Article II, Section 9, right to know argument, I have adequately
expressed my views on the matter in my special concurrence contained in this Court's Order appointing

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a fifth member to the Montana Districting and Apportionment Commission dated August 3, 1999.

¶145.As with Justice Nelson, I am also impressed by the credentials of the advocates who have appeared
before us in this proceeding, many of whom I have admired for years. I also continue to be amazed at
the untiring efforts and contributions made by the members of the Commission on Practice. I think
everyone involved, including every member of this Court, recognizes that our profession must be no less
vigilant at protecting the constitutional rights of our colleagues as other citizens of this state. Although
our attorney disciplinary system may beg for change, I cannot say that it does not meet minimal due
process standards as defined by the United States Supreme Court and this Court. I believe that both
respondents have been provided a fair hearing.

/S/ JIM REGNIER

Justice Karla M. Gray joins in the foregoing concurring opinion of Justice Jim Regnier.

/S/ KARLA M. GRAY

1. See In the Matter of Scott A. Albers, No. 98-011, Order Denying Motion to Dismiss, June 12, 1998,
(Nelson, J. dissenting).

2. The 1965 disciplinary scheme did, arguably, have some due process "walls of division" that are
lacking in the current rules. For example, the rules provided for a district judge to appoint three to five
attorneys in each judicial district to be the local grievance committee to investigate complaints referred
to the committee by the COP or a judge. The committee could recommend no charges be filed and the
COP, if it concurred, would dismiss the complaint. If the grievance committee recommended the filing
of charges and if the COP concurred, the COP would prepare and file the charges and the complaint
would be signed by an interested person. A hearing examiner or hearing committee then heard the
charges which the COP had drafted and a report was made to the COP, which could accept or reject the
findings and recommendations. See Rules IV, VI and VIII of the 1965 Rules, adopted by this Court,
Order No.10910, January 5, 1965.

3. This same rationale was set out in my dissent to our August 3, 1999 Order, In Re the Selection of a
Fifth Member to the Montana Districting and Apportionment Commission. Since the majority cites to
that order at ¶ 48 as authority for its decision on the Rule 13 issue and since our order was, technically,
not published as an opinion, I will restate my rationale here.

4. Of course no one except the individual members of this Court will ever know how these cases are
actually reviewed, given the majority's decision that Article II, Section 9, does not apply to our
deliberations. See our August 3, 1999 Order In Re the Selection of a Fifth Member to the Montana
Districting and Apportionment Commission, cited at ¶ 48 of the majority opinion.

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