December 31 2009
PR 07-0131
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 455
_________________
IN THE MATTER OF ERIC OLSON, OPINION
An Attorney at Law, AND
Respondent. ORDER
_________________
¶1 On February 15, 2007, the Office of Disciplinary Counsel (ODC) filed a formal
complaint against Eric Olson (Olson) alleging violations of Rule 3.4 and Rules 8.4(b)-(d)
of the Montana Rules of Professional Conduct (MRPC). These rules read in relevant part
as follows:
Rule 3.4—Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence,
unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value, or counsel or assist another person to do any
such act . . . .
Rule 8.4—Misconduct
It is professional misconduct for a lawyer to . . .
(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice . . . .
1
¶2 Olson contested the charges. On January 17 and 18, 2008, the Commission on
Practice (Commission) held a hearing on ODC’s complaint. Testimony and documentary
evidence was presented at the hearing. On July 28, 2009, the Commission issued its
Findings of Fact, Conclusions of Law, and Recommendation regarding ODC’s complaint
against Olson. The Commission concluded that ODC had failed to prove by clear and
convincing evidence that Olson had violated Rules 3.4 and 8.4(b)-(d) of the MRPC. The
Commission recommended that ODC’s complaint be dismissed with prejudice.
¶3 The ODC now objects to the Findings of Fact, Conclusions of Law, and
Recommendation of the Commission. For the reasons set forth below, we deny ODC’s
objections and adopt the Commission’s recommendation to dismiss the complaint with
prejudice.
¶4 Olson was admitted to the practice of law in Montana in 1993. Olson was the
Chief Public Defender in Cascade County until February 28, 2006. On or about
December 25, 2005, police in Great Falls, Montana, searched the apartment of Shaun and
Kelly Mortenson, seizing various items of evidence related to child pornography. The
Mortensons were charged with 38 counts of sexual abuse of children.
¶5 Olson undertook the representation of Kelly Mortenson. Neither Olson nor
anyone else in his office had ever represented a client in a child pornography case. Olson
met with Kelly for 2 to 3 hours after her arrest and began to form a compulsion defense to
the charges against her. Olson also retained the services of Dan Kohm (Kohm), a retired
detective from the Cascade County Sheriff’s Office and an experienced investigator. On
or about January 9, 2006, Kohm and Olson were contacted by Kelly’s mother regarding
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items left in the Mortensons’ apartment that the defense should look at. Olson and Kohm
confirmed that an eviction notice had been issued, and were further aware that the
apartment had been searched and released by the Great Falls Police Department.
¶6 Olson and Kohm went to the Mortensons’ apartment. While there, they collected
items they believed would be potentially helpful in formulating a defense. Among the
items taken were 13 photographs which had been apparently downloaded from the
Internet. All the removed items were bagged, tagged, sealed as evidence, inventoried,
and stored under lock and key in Kohm’s office. The 13 photographs were introduced by
ODC at the hearing in this matter and have been included in the record on appeal. They
depict young girls in various erotic poses. In many of these pictures, the genital areas of
the girls are exposed.
¶7 At the hearing, Olson and Kohm testified that they did not believe any of the
photographs were child pornography. Olson further testified that he did not believe any
of the items were contraband. However, Olson did harbor concerns that someone else
might think so in light of the language in §§ 45-620(1)(f) and -625, MCA (2005). These
statutes read in pertinent part as follows:
45-5-620. Definitions. A s u s e d i n 4 5-5-625, the following
definitions apply:
(1) “Sexual conduct” means actual or simulated . . .
(f) lewd exhibition of the genitals, breasts, pubic or rectal area, or
other intimate parts of any person . . . .
45-5-625. Sexual abuse of children. (1) A person commits the
offense of sexual abuse of children if the person . . .
(d) knowingly processes, develops, prints, publishes, transports,
distributes, sells, exhibits, or advertises any visual or print medium,
including a medium by use of electronic communication, as defined in
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45-8-213, in which a child is engaged in sexual conduct, actual or
simulated;
(e) knowingly possesses any visual or print medium, including a
medium by use of electronic communication, as defined in 45-8-213, in
which a child is engaged in sexual conduct, actual or simulated . . . .
¶8 Kohm also expressed concerns to Olson about whether they could be subject to
criminal culpability for possessing the photographs. Accordingly, Olson sought the
advice and counsel of Tony Gallagher (Gallagher), the Chief Federal Defender in the
District of Montana, who had extensive experience in handling child pornography cases.
Gallagher advised Olson to seek a protective order in the event someone might consider
the items child pornography. At the hearing, Gallagher testified that such orders are
commonplace in these matters and are obtained ex parte from the court. Gallagher also
testified that Olson did not believe he was in possession of contraband or child
pornography. Gallagher further testified that Olson had an obligation to gather items in
preparation of a defense, and did not have a duty to turn over the information at that point
in time.
¶9 Based on Gallagher’s advice, Olson sought and received a protective order from
Cascade County District Court Judge Thomas M. McKittrick authorizing him and Kohm
to retain possession of the seized items. Judge McKittrick testified at the hearing that he
believed Olson was an aggressive defense attorney and needed to investigate the case
adequately. Judge McKittrick also stated that the criminal statutes noted above could
expose criminal defense lawyers to criminal liability when investigating charges against
their clients. Judge McKittrick expressed the view that these statutes could potentially
have a chilling effect on the conduct of criminal defense attorneys.
4
¶10 In early 2006, Olson retained forensic psychologist Dr. Michael J. Scolatti to
evaluate his client, review the evidence, and advise him on the compulsion theory of his
defense. Dr. Scolatti reviewed the photographs, opined that none of the photographs
were child pornography, and agreed with Olson’s compulsion theory of defense.
¶11 On January 17, 2006, Cascade County Attorney Brant Light informed Olson via
email that the Mortensons’ case would likely “go federal” and that the state charges
would probably be dismissed. That same month, Olson was hired as the state training
coordinator for the Office of the State Public Defender. By reason of the email and
Olson’s new job, he did not go forward with his defense of Kelly Mortenson. Olson
started his new job on March 1, 2006, and left the Cascade County Public Defender’s
office.
¶12 Olson did not turn over any of the seized evidence to law enforcement officials, or
advise them of the existence of this evidence prior to leaving the public defender’s office.
After Olson left, Kelly Mortenson’s case was assigned to Carl Jensen (Jensen). Olson
attempted to talk to Jensen about the matter, but Jensen did not have time to discuss it and
simply asked for a memo. Olson prepared an email memo on the case. Sometime after
reading the email, Jensen learned of the existence of the seized evidence. Jensen
contacted Kohm and ordered him to take the items out of the tagged and secured
envelopes and turn them over to County Attorney Light. Jensen did not review any of the
evidence, which included some of Kelly Mortenson’s private writings, along with the
photographs. Kohm objected to Jensen’s request but did carry it out.
5
¶13 When County Attorney Light received the material, he turned it over to the Great
Falls Police Department. At the hearing, County Attorney Light testified that he never
had any thought of prosecuting Olson for possessing the material.
¶14 Marcia Hurd is the Assistant U.S. Attorney who prosecuted Kelly Mortenson in
federal court. AUSA Hurd testified at the hearing that most of the photographs had
already been found elsewhere by the police in their search of the apartment. Because the
items had been removed from the tagged and sealed envelopes at Jensen’s request, Hurd
was unable to use any of the recovered items in the federal case. However, she clearly
testified that she had sufficient evidence to prosecute and convict. Furthermore, Brian
Norcross represented Kelly Mortenson in the federal trial, and independently developed
the same compulsion defense formulated by Olson in response to the state charges.
¶15 ODC’s complaint alleged that Olson violated MRPC 3.4 when he “unlawfully
obstructed another party’s access to evidence and/or concealed documents or other
materials having potential evidentiary value.” The complaint alleged Olson violated
MRPC 8.4(b), referencing the criminal offense of “tampering with or fabricating physical
evidence” in § 45-7-207, MCA. This statute reads in pertinent part as follows:
45-7-207. Tampering with or fabricating physical evidence. (1)
A person commits the offense of tampering with or fabricating physical
evidence if, believing that an official proceeding or investigation is
pending or about to be instituted, the person:
(a) alters, destroys, conceals, or removes any record, document, or
thing with purpose to impair its verity or availability in such proceeding or
investigation . . . .
¶16 Based on ODC’s references to this statute in conjunction with the purported
MRPC 8.4 violation, the Commission inferred that ODC was alleging that Olson violated
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§ 45-7-207, MCA. The complaint also alleged Olson violated MRPC 8.4(c) by virtue of
his “dishonest and deceitful” conduct. The violation of MRPC 8.4(d) allegedly occurred
because Olson’s conduct in this matter was “prejudicial to the administration of justice.”
¶17 At the hearing, the Commission received testimony from Professor Norm Lefstein
(Lefstein), former Dean of the Indiana University School of Law, and an expert on
professional responsibility and defense representation in criminal cases. Lefstein was
familiar with the Montana criminal statutes, the Model Penal Code upon which
Montana’s criminal statutes are based, the MRPC, and the American Bar Association’s
(ABA) Criminal Justice Standards. Lefstein opined that the drafters of the Model Penal
Code never considered the impact that a tampering with evidence offense could have on
criminal defense attorneys, or the possibility this offense could be used against a criminal
defense attorney. Lefstein also reviewed portions of the ABA’s Criminal Justice
Standards pertaining to the possession of items of physical evidence in connection with
an ongoing criminal matter. Under ABA Defense Function Standards 4-4.6(a) and
4-4.6(c), Lefstein opined that Olson was not required by law or the court to turn the
physical items over to law enforcement or the prosecution during the time he worked on
this case. These Criminal Justice Standards provide as follows:
Defense counsel who receives a physical item under circumstances
implicating a client in criminal conduct should disclose the location of or
should deliver that item to law enforcement only: (1) if required by law or
court order, or (2) provided in [4-4.6(d)].
Defense Function Standard 4-4.6(a), Physical Evidence.
Defense counsel may receive the item for a reasonable period of time
during which defense counsel: (1) intends to return it to the owner; (2)
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reasonably fears that return of the item to the source will result in
destruction of the item; (3) reasonably fears that return of the item to the
source will result in physical harm to anyone; (4) intends to test, examine,
inspect, or use the item in any way as part of defense counsel’s
representation of the client; or (5) cannot return it to the source.
Defense Function Standard 4-4.6(c), Physical Evidence.
¶18 In its findings, the Commission specifically found that “the fact that Olson
obtained a court protective order to retain the items is totally inconsistent with the intent
required under the tampering with physical evidence statute.” While the Commission
noted there was no “bright line” rule in the MRPC or model rules directly bearing on this
case, it found the testimony of Lefstein and consideration of the ABA Criminal Justice
Standards helpful. The Commission noted that the duty to investigate criminal cases is a
“very broad responsibility and the failure to perform said duty would be a serious failure
upon the part of defense counsel.” Further, the Commission noted the ABA’s recognition
of diligent investigation, and the importance of a defense lawyer taking possession of
material produced by his client in order to make a judgment about its possible utility in
defending his client. In comparing Olson’s conduct to the ABA Criminal Justice
Standards noted above, the Commission concluded that his conduct was a “text book
example” of the type of functioning expected of defense counsel.
¶19 Additionally, the Commission noted that the case before it involved a complicated
area in which the lawyer’s judgment must be given some leeway and understanding. The
Commission also noted testimony to the effect that there was “bad blood” between
Jensen and Olson prior to Jensen’s handing of the materials over to County Attorney
Light.
8
¶20 In its conclusions of law, the Commission concluded that Olson had a “good faith
belief” that the items taken from the Mortenson apartment were possibly supportive of
the defense, needed for examination and evaluation, contained privileged attorney-client
information, and were not child pornography or contraband. The Commission noted that
Olson had an obligation to provide competent representation to his client, and did so in
trying to establish a compulsion defense. The Commission also concluded Olson had a
good faith belief that he could not reveal the information in this case, except as required
by a discovery statute or court order. In this case, no such statute or order applied.
¶21 With regard to the allegations under MRPC 3.4, the Commission concluded that
Olson did everything to comply with this rule as he preserved the evidence in a manner
that was safe, and sought a protective order for its possession.
¶22 Under MRPC 8.4(b) and (c), the Commission found no misconduct by Olson. The
Commission found no unlawful obstruction of a party’s access to evidence, and no
evidence of Olson’s intent to commit the offense of tampering with evidence. In order to
establish a violation MRPC 8.4(d), the Commission, citing People v. Jaramillo, 35 P.3d
723 (Colo. O.P.D.J. 2001), concluded that ODC must prove some nexus between the
conduct charged and an adverse effect upon the administration of justice. The
Commission determined that Olson’s conduct had no adverse effect on the administration
of justice, and did not affect the federal case against the Mortensons.
¶23 The Commission concluded by noting that ODC has the burden of proof in a
lawyer disciplinary proceeding, and must make its proof by clear and convincing
evidence. See Rule 11(7) of the Montana Rules for Lawyer Disciplinary Enforcement;
9
Matter of Halprin, 244 Mont. 363, 367, 798 P.2d 80, 82 (1990); Matter of LaFountain,
226 Mont. 296, 302, 738 P.2d 472, 475 (1987). The Commission determined that the
ODC had simply failed to meet its burden, and had not proven that Olson’s conduct was
fraudulent, intentional, or the result of improper motives.
¶24 This Court possesses original and exclusive jurisdiction and responsibility in all
matters involving the disciplining of lawyers in the state of Montana. In re Engel, 2008
MT 42, ¶ 3, 341 Mont. 360, 177 P.3d 502. We review de novo the Commission’s
findings of fact, conclusions of law, and recommendations, and weigh the evidence upon
which the Commission’s findings rest. In re Engel, ¶ 3 (citing In re Potts, 2007 MT 81,
¶ 32, 336 Mont. 517, 158 P.3d 418).
¶25 ODC’s challenge to the Commission’s recommendation and findings boils down
to two main points. First, ODC claims that the Commission erred when it failed to
determine whether or not the 13 photographs were child pornography. Instead, the
Commission merely determined that Olson had a good faith belief that these items were
not child pornography or contraband. ODC has included the photographs in the record
on appeal and asks this Court to review them and make a determination as to whether
they are actually contraband. ODC claims this is an important issue which was not
determined in this case.
¶26 Second, ODC contends that because these items were child pornography, they
were either the fruits or instrumentalities of a crime, and that Olson was required to turn
them over to the authorities under the MRPC. In this connection, ODC asserts that a
violation of Rule 3.4(a) does not require a violation of a criminal statute. With regard to
10
MRPC 8.4, ODC generally contends that Olson had an ethical obligation to turn the
contraband over to the authorities, and that his “good faith belief” that the items were not
in fact contraband cannot defeat this obligation. ODC argues that the evidence in this
case demonstrates that Olson knew he had child pornography because he obtained an ex
parte order for its possession. ODC contends that the fact the apartment had been
searched and released by the police does not defeat Olson’s duty under the MRPC. ODC
also disputes the correctness of the Commission’s conclusion that Olson believed in good
faith that he did not need to turn these items over in the absence of a court order or
applicable discovery statute. Again, ODC argues that a criminal statute or court order
would not obviate Olson’s ethical duties in this case.
¶27 Finally, ODC disputes the contention that Olson’s conduct in this case was a “text
book example” of what the ABA Criminal Justice Standards require. ODC contends that
there is nothing in these standards which permitted Olson to illegally possess the
contraband. Further, ODC disputes the tenability of the claim that Olson had to retain the
evidence in order to inspect it. ODC argues that it was apparent that the evidence in this
case was child pornography, and that Olson could have still used this material even if it
was in possession of the police.
¶28 In Jacobellis v. State of Ohio, 378 U.S. 184, 84 S. Ct. 1676 (1964), Justice Potter
Stewart famously said of illegal pornography that “I know it when I see it . . . .”
Jacobellis, 378 U.S. at 197, 84 S. Ct. at 1683 (Stewart, J., concurring). ODC has
included the disputed photographs on file, and it is difficult for the Court to comprehend
how anyone would not “know” that these are examples of child pornography.
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¶29 However, the dispositive question in this case is not whether the seized items in
this case are child pornography. Rather, it is whether ODC has demonstrated, by clear
and convincing evidence, that Olson violated MRPC 3.4(a) and 8.4(b)-(d), as alleged in
ODC’s complaint. In its complaint, ODC charged that Olson violated MRPC 3.4 by
unlawfully obstructing another party’s access to evidence and/or concealing documents
or other materials having potential evidentiary value. The Commission correctly
determined that Olson did not engage in such conduct. The items were stored, bagged,
and tagged, and kept under lock and key in Kohm’s office. Olson was not, at that point
in the proceedings, obligated to turn the items over to the police or prosecutor by virtue
of a statute or court order. Moreover, Olson had a duty to conduct an investigation on
behalf of his client and prepare a defense. While we have not yet formally adopted the
ABA’s Criminal Justice Standards in Montana, the Commission properly relied on them
for guidance in analyzing this matter. ODC has simply failed to demonstrate by clear and
convincing evidence that this conduct amounted to unlawfully obstructing or concealing
evidence.
¶30 The violation of MRPC 8.4(b) was premised on allegations that Olson committed
the criminal act of tampering with or fabricating physical evidence. There is no evidence
in this record of Olson’s intent to tamper with or fabricate physical evidence.
¶31 The violation of MRPC 8.4(c) was premised on Olson’s dishonest and deceitful
conduct. While ODC disputes whether Olson could have had a good faith belief that the
photographs were not contraband, it has failed to demonstrate that Olson’s conduct in this
case was dishonest or deceitful. And although we do review the Commission’s findings
12
and recommendations de novo, the fact remains that the Commission is still in the best
position to assess and observe the demeanor of the witnesses in this case. See Matter of
Matt, 252 Mont. 345, 354, 829 P.2d 625, 630 (1992).
¶32 The MRPC 8.4(d) violation requires conduct on Olson’s part which is “prejudicial
to the administration of justice.” In order to establish a violation of this rule, the
Commission concluded that ODC must demonstrate some nexus between Olson’s
conduct and an adverse effect upon the administration of justice. See Jaramillo, 35 P.3d
at 731. We agree with the Commission that ODC has failed to prove by clear and
convincing evidence that Olson’s conduct met this standard.
¶33 Finally, the Dissent opines that there is evidence in the record that Olson misled
the District Court into believing he had obtained the photographs from the County
Attorney’s files, and that such conduct implicates MRPC 8.4(c) and (d). See Dissent,
¶ 44-45. If the record before us supported a finding that such conduct occurred, we
would not hesitate to find a rule violation. However, because there is not clear and
convincing evidence in the record that Olson in fact made such misrepresentations to the
court, we decline to find that this violation occurred.
CONCLUSION
¶34 For the foregoing reasons, we adopt the recommendation of the Commission and
conclude that ODC has failed to prove by clear and convincing evidence that Olson
violated MRPC 3.4 and 8.4 in his conduct in this matter. Accordingly,
¶35 IT IS HEREBY ORDERED that the complaint against Eric Olson in this matter be
DISMISSED WITH PREJUDICE.
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¶36 IT IS FURTHER ORDERED that the Clerk of this Court is directed to mail copies
of this Order to Eric Olson, by certified mail, return receipt requested, and by regular
mail to Eric Olson’s attorney of record, the Chairman and the Secretary of the
Commission on Practice, the Office of Disciplinary Counsel, and the Executive Director
of the State Bar of Montana.
DATED this 31st day of December, 2009.
/S/ PATRICIA O. COTTER
We concur:
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
Chief Justice Mike McGrath, specially concurring.
¶37 While I concur with the majority decision, the dissent raises valid considerations.
¶38 Initially, in my view it is immaterial in this case whether the photographs in
question are pornographic. The District Court’s protective order insulated Olson from
criminal prosecution as well as claims of ethical misconduct. It is difficult to conclude
that Olson was either unlawfully obstructing access to evidence or unlawfully concealing
material having potential evidentiary value, as required by M. R. P. C. 3.4(a), when he
brought the matter to the attention of the District Court and obtained the order.
Moreover, the record does not contain sufficient evidence to conclude Olson misled the
14
District Court. Judge McKittrick testified that he specifically requested not to be told
about the facts because he was sitting on the pending case against Olson’s client. Thus, I
concur with the majority.
¶39 The dissent is correct, however, that as a general matter, § 45-7-207, MCA, as
well as M. R. P. C. 3.4(a), prohibit a criminal defense counsel from concealing
contraband and physical evidence of a client’s criminal conduct. This obligation pertains
whether or not counsel intends to use the subject evidence at trial. Moreover, neither
federal procedures nor ABA criminal justice standards is determinative of the rule in
Montana. Unlike the federal system, Montana has a mutual discovery policy; see § 46-
15-323, MCA; State, ex rel. Carkulis v. District Court, 229 Mont. 265, 746 P.2d 604
(1987). If the case against Olson’s client had proceeded in state court and if Olson had
intended to use the photographs at trial, he would have been required to disclose them.
/S/ MIKE McGRATH
Justice James C. Nelson dissents.
¶40 As noted in the Court’s Opinion, our review of disciplinary proceedings is de
novo. Opinion, ¶ 24 (citing In re Engel, 2008 MT 42, ¶ 3, 341 Mont. 360, 177 P.3d 502).
Accordingly, based on the record, and with due respect to the Court and the Commission
on Practice (COP), I cannot join the Court’s Opinion in this case.
¶41 Olson’s defense derails over his Clintonesque claim that he did not believe that the
13 photographs at issue were child pornography. Similarly, the COP’s decision runs off
15
the track for the same reason—that “Olson had the good faith belief that the items taken
from the Mortenson apartment following the search and release of the scene by the police
were . . . not child pornography or contraband.” COP, Conclusion of Law No. 3. Since
the COP never determined whether the photographs at issue were or were not child
pornography, Opinion, ¶ 25, the adjudicative panel was hardly in a position to conclude
anything about Olson’s good faith belief in possessing it or determining the bona fides of
his defense.
¶42 Suffice it to say that the photographs at issue are of pre-adolescent girls: one is
dressed in a French maid’s costume, others are completely naked, and others are partially
clothed. All are posed erotically, and the photographs focus on the girls’ exposed
genitals and breasts. If these photographs are not child pornography under
§§ 45-5-620(1)(f) and 45-5-625(1)(e), MCA (2005), then I am at a loss to know what
constitutes child pornography. At least the Court and I agree on that. Opinion, ¶ 28.
Indeed, I believe that any “good faith” conclusion to the contrary would be absurd. See
Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J.,
concurring).
¶43 The COP, however, failed to make this elemental determination, and, as a result,
rendered its decision on a faulty underlying premise—Olson’s good faith belief. The
COP’s decision errs in its deference to Olson, and the Court’s decision fails in its
deference to the COP. In my view, Olson, an experienced criminal defense attorney,
could not hold a good faith belief that the photographs of which he took possession were
not child pornography and, thus, were not contraband and evidence of the criminal acts of
16
his client. Indeed, the photographs were exactly the sort of child pornography which
formed the basis of the charges against Olson’s client. More to the point, if Olson really
believed, in good faith, that the photographs were not child pornography, then he had no
need to obtain the protective order from Judge McKittrick in order to retain possession of
the photographs.
¶44 Having concluded that the photographs were contraband and evidence, I also agree
with Disciplinary Counsel that Olson violated Montana Rules of Professional Conduct
(M. R. P. C. ) 3.4(a).1 This Rule required that Olson make the photographs available to
the County Attorney. The offense of tampering with or fabricating physical evidence
under § 45-7-207(1)(a), MCA, is committed when one conceals evidence in an official
proceeding or investigation. There is no exception in this criminal statute for the
possession by defense counsel of actual evidence of the criminal conduct at issue.
Regardless of what the ABA Criminal Justice Standards might suggest as “guidelines,”
these cannot supersede Montana’s statutes. I am, thus, persuaded that once a criminal
defense attorney comes into possession of physical evidence of his or her client’s
criminal conduct, that he or she is neither legally permitted under § 45-7-207, MCA, nor
ethically privileged under M. R. P. C. 3.4(a), to conceal that evidence from the authorities
and from the prosecutor. I have a hard time understanding how, if defense counsel comes
into possession of the bloody knife used to commit a homicide, that he or she can legally
1
M. R. P. C. 3.4(a) provides that a lawyer shall not “unlawfully obstruct another party’s
access to evidence, unlawfully alter, destroy or conceal a document or other material
having potential evidentiary value, or counsel or assist another person to do any such
act . . . .”
17
and ethically conceal that evidence from the police and prosecutor. While it goes without
saying that the defendant is entitled to all exculpatory evidence in the hands of the
prosecutor, State v. Thompson, 2001 MT 119, ¶ 31, 305 Mont. 342, 28 P.3d 1068, I
believe that the law, likewise, requires that the prosecutor be entitled to inculpatory
physical evidence and contraband in the hands of the defense, see Clutchette v. Rushen,
770 F.2d 1469, 1472-73 (9th Cir. 1985), cert. denied, 475 U.S. 1088, 106 S. Ct. 1474
(1986) (holding that a lawyer’s conduct in possessing evidence of a crime is not protected
by the Sixth Amendment right to counsel). Moreover, a lawyer’s conduct in holding
fruits and instrumentalities of a crime is not protected by the attorney-client privilege.
Wemark v. State, 602 N.W.2d 810, 816 (Iowa 1999). That the former evidence may
“chill” the prosecution and latter evidence may “chill” the defense, see Opinion, ¶ 9,
should not take precedence over the fact that our criminal justice system is fundamentally
charged with searching for and finding the “truth.” Or, so we claim. See e.g. State v.
Waters, 228 Mont. 490, 495, 743 P.2d 617, 620 (1987) (“The purpose of Montana’s
discovery scheme is to enhance the search for truth.”); State v. Dezeeuw, 1999 MT 331,
¶ 16, 297 Mont. 379, 992 P.2d 1276 (holding that the trial court’s exclusion of
defendant’s eyewitness to the altercation, when his only defense was self-defense,
hindered the search for truth and, therefore, was an abuse of the court’s discretion).
¶45 The same is true here. The photographs were clearly evidence of the charges filed
by the Cascade County Attorney against Olson’s client, and Olson had the legal and
ethical obligation to make the photographs available to the prosecution. I agree with
Disciplinary Counsel that Olson violated M. R. P. C. 3.4(a). We are not cited to any
18
authority that permits a lawyer defending or prosecuting a criminal case to break the law
in doing so.
¶46 Similarly, Olson was charged with violating M. R. P. C. 8.4(b).2 Even though
Olson was never charged with violating § 45-7-207(1)(a), MCA, that is not a bar to
concluding that he, nonetheless, violated this Rule. See generally ABA Annotated Model
Rules of Professional Conduct 579 (6th ed. 2007). As already noted, having concealed
evidence of his client’s criminal conduct, I conclude that Olson violated this Rule as well.
¶47 Finally, as to the ex parte, sealed protective order which Olson obtained from
Judge McKittrick, there is evidence in the record that Olson misled the court into
believing that the photographs were obtained from the County Attorney under that
office’s open-file policy. In regards to his conversation with Olson about the need for a
protective order, Judge McKittrick testified:
I said, “Have you gone through discovery, did you get an open file from the
County Attorney’s Office?” . . . And he said, “Yes, open file, yes,” and I
said something to the effect, “Do you have what may be considered child
pornography?” and he said, “Well, look at the Code,” and he said, “Yeah,
that’s a problem.” He said, “I’m very, very concerned about that. . . .”
¶48 M. R. P. C. 8.4(c) makes it professional misconduct for a lawyer to “engage in
conduct involving dishonesty, fraud, deceit or misrepresentation . . . .” Likewise,
M. R. P. C. 8.4(d) proscribes a lawyer from “engag[ing] in conduct that is prejudical to
the administration of justice . . . .” I conclude that these Rules were violated by Olson’s
2
M. R. P. C. 8.4(b) provides that it is professional misconduct for a lawyer to “commit a
criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects . . . .”
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lack of candor with Judge McKittrick concerning where and how he obtained the
photographs. I also conclude that Judge McKittrick’s testimony clearly and convincingly
demonstrates that he was under the false impression that Olson obtained the photographs
from the County Attorney’s Office. Obviously, Olson did not obtain the photographs by
way of the County Attorney’s open-file policy; and Olson was ethically obligated to be
candid and truthful with the trial court when he applied for the order of protection.
Attorneys should not put trial judges in the position of issuing orders based on the court’s
misapprehension of the facts.
¶49 In summary, on the facts of this case and on the record before us, I conclude that
Disciplinary Counsel got it right. I would reverse and remand to the COP for further
proceedings and a recommendation of discipline.
¶50 Therefore, respectfully, I dissent from our decision.
/S/ JAMES C. NELSON
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