It may be that what the lawyer has done, or failed to do, constitutes malpractice but may not be a violation of the rules. In that event, the client should consult with another lawyer about pursuing a claim for malpractice.

Some examples of unethical conduct that violate the Rules of Professional Conduct, include, but are not limited to, the following:

• Disclosing confidential information;
• Conflicts of interest;
• Intentionally failing to keep a client reasonably informed of the status of the client’s matter;
• Misappropriation of a client’s fund; and
• Other forms of dishonesty, fraud, or deceit.

Ordinarily, we would send a copy of your complaint to the attorney requesting a response. If you do not want us to do that, or you would like our office to talk with you before doing that, you must let us know as part of your complaint. By Rule, complaints are kept confidential unless the complaint is serious enough to require the filing of Formal Charges. The reasons for this are to: (1) protect any confidential communications between the attorney and client; (2) allow the investigation to be conducted in a fair and objective fashion; and (3) to prevent any unfair publicity about the attorney or grievant if the complaint is found to be without substance.

Specifically, Rule 20(d) of the RLDE states:

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

Further, Rule 20(a) notes:

"Confidentiality: All disciplinary proceedings which are prior in time to the filing of a formal complaint with the Clerk of the Supreme Court shall be confidential. Upon the filing of a formal complaint, the Commission’s file on the matter shall be subject to discovery."

In addition, Rule 20(c) states:

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

This means that you should maintain confidentiality about the fact that you have filed a complaint against an attorney with this office (except to discuss it with your current lawyer). This is not a prohibition about discussing the underlying facts – we only ask that you communicate about the complaint itself through this office.

When a complaint is received, it is reviewed by the Disciplinary Counsel to determine if a violation of the Rules of Professional Conduct is stated. You will receive a letter from the Disciplinary Counsel informing you either that (1) the complaint does not appear to involve conduct that is within the disciplinary jurisdiction of the Court; (2) more information is needed; or (3) an investigation has been initiated. If an investigation is initiated, the attorney will receive a copy of the complaint and he/she is required to respond in writing to the allegations. Normally, you will receive a copy of the attorney’s rebuttal.

If the investigation established that a violation has occurred, the attorney may receive informal private discipline or, in some cases, formal charges may be filed with the Court. If the attorney received informal or private discipline by the COP, you will be informed of the type of sanction and reasons for it – information concerning informal or private discipline must be kept confidential and is not for release to the public. The discipline ordered after the filing of formal charges can range from public censure to disbarment. COP can also recommend that the lawyer be required to make restitution of client’s funds that may have been misappropriated.

Contrary to what many people believe, COP has no authority to order or force a lawyer to do such things as pay damages to a client for malpractice, arbitrate or settle fee disputes between lawyer and client, or force a lawyer to complete work that he or she has neglected. COP’s jurisdiction is limited to disciplining lawyers for unethical activity and, in more serious cases, recommending discipline by the Court.

COP may dismiss a complaint if the complaint, the attorney’s response, and the complaining party’s response do not indicate that a violation of the rules has occurred. COP may conclude that further investigation and the holding of a hearing is not justified in certain cases.

In cases where the complaint is not dismissed and where it appears that a rules violation has occurred, the misconduct of the lawyer involved must be established either by clear and convincing evidence presented at a hearing conducted by COP, or by the admission of the lawyer involved. Only then, can COP make its recommendations to the Supreme Court.

If you feel that COP’s dismissal of your complaint was in error, you may file a written request to have the decision reviewed. Likewise, the attorney can request review of a COP recommendation he/she believes improper. The Supreme Court may, in its sole discretion, review the Panel’s disposition upon reconsideration.

No. COP only has jurisdiction over violations of the Rules of Professional Conduct. ODC and COP cannot handle matters that involve legal malpractice. If you feel that you have been monetarily damaged by your attorney’s actions on your case or if you feel you may have some legal recourse, you should consider discussing the matter with private legal counsel. DO NOT WAIT UNTIL WE HAVE REACHED A DECISION BEFORE TAKING ANY LEGAL ACTION. ODC cannot represent your individual interest in the matter nor can we become involved in any legal matter that might relate to your complaint. We cannot answer legal questions or give legal advice.

Each case varies according to its complexity. Cases that are complex or involve the filing of formal charges will take longer. We make every effort to see that the disposition of each complaint is handled as quickly and as thoroughly as possible.

Fee matters are not generally a basis for discipline because they usually do not involve questions of ethics or professional misconduct. There is no such thing as a "standard fee" for a particular type of case. If you feel that your attorney’s fees are too high, you may wish to enter into FEE ARBITRATION. Please contact the Montana State Bar at (406) 442-7660 for more information on this procedure.

Under special provisions of the Montana State Bar and Supreme Court Rules, a fund has been created to compensate clients for all or part of any losses caused by the "dishonest" conduct of a lawyer admitted to practice in Montana. Under the program, fees are paid by all lawyers throughout the state to assist in compensating members of the public for a Montana lawyer’s dishonest conduct when the claimant has no other recourse to recoup the loss. "Malpractice" is not necessarily dishonest conduct, and the distribution of funds is limited to victims of "dishonest" actions. If you feel that you may qualify, contact the Montana State Bar for further information about the Lawyers’ Fund for Client Protection.