PLEASE READ BEFORE FILING A COMPLAINT(Save this portion for future reference.)
ANSWERS TO COMMON QUESTIONS ON FILING A COMPLAINT
AGAINST A MONTANA ATTORNEY
1. If I believe an attorney in the State of Montana has violated the Montana Rules of Professional Conduct, where do I register a complaint?
You may register a complaint by sending it in writing with the attached Complaint Cover Sheet to:
Office of Disciplinary Counsel
P.O. Box 1099
Helena, MT 59624-1099
2. What is the Office of Disciplinary Counsel?
The Office of Disciplinary Counsel (ODC) is part of a comprehensive lawyer regulation system established by the Montana Supreme Court. The system consists of ODC and the Commission on Practice (COP). ODC performs central intake functions and processes, investigates and prosecutes complaints against lawyers that are within the jurisdiction of the Court. The Disciplinary Counsel is appointed by the Court. COP determines whether to approve Disciplinary Counsel's request to file a formal complaint, acts as a hearing body, and makes recommendations to the Court. There are nine lawyers and five non-lawyers on the COP. The Court appoints both the lawyer and the non-lawyer members of COP.
3. What are the Montana Rules of Professional Conduct?
The Montana Rules of Professional Conduct are the rules that govern the ethical conduct of all attorneys in the State of Montana.
4. How do I file a complaint against an attorney practicing law in Montana?
A complaint against an attorney must be submitted in writing, unless prior approval is received in special circumstances. Complete the attached Complaint Cover Sheet and write a detailed explanation of the reasons you are filing a grievance against the attorney. Include as much factual data as possible (i.e. dates, names, phone numbers, amounts of money involved, witnesses, etc.). If possible, organize the information in chronological order. The complaint must be signed by you. Attach copies of any documents or correspondence that will help explain the complaint; do not send any original documents. If more information is needed, we will contact you.
5. Is there a time limit within which a complaint must be filed?
With certain exceptions, a formal Complaint must be filed within six years from the date the alleged misconduct was discovered or should have been discovered. In no case may a formal Complaint be filed after 10 years from the date the alleged misconduct occurred, except misconduct that constitutes a felony criminal act, whether the lawyer has been charged, prosecuted or convicted.
6. What is attorney misconduct?
Attorney misconduct is any violation of the Montana Rules of Professional Conduct.
It is important to understand that not all conduct that makes clients unhappy with lawyers constitutes a violation of the Rules of Professional Conduct. Some examples of things that may not constitute violations of the Rules of Professional Conduct, though they may be irritating to the client, include, but are not limited to, the following:
- Losing a lawsuit;
- Not fulfilling all of a client’s expectations;
- Making an unintentional error in preparing a document; and
- Personality conflicts between a lawyer and client.
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 client funds; and
- Other forms of dishonesty, fraud, or deceit.
7. What happens after my complaint is filed?
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 (1) the complaint does not appear to involve conduct that is within the disciplinary jurisdiction of the Court; (2) more information is needed; (3) an investigation has been initiated, or, (4) that the matter is dismissed because, on its face, the matter does not warrant disciplinary action. 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 response.
After ODC investigates the matter, Disciplinary Counsel may dismiss the matter if he or she determines that the matter does not warrant disciplinary action or request leave from a Review Panel of the COP to file a formal complaint against the lawyer with the Clerk of the Montana Supreme Court.
The discipline ordered after the filing of formal charges can range from an admonition administered by the COP to disbarment by the Court.
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.
In cases where the complaint is not dismissed and where it appears that a rule violation has occurred, the alleged misconduct of the lawyer involved must be established by clear and convincing evidence.
8. Can I appeal the decision?
If you feel that Disciplinary Counsel’s dismissal of your complaint was in error, you may file a written request, within 30 days, to have the decision reviewed by a Review Panel of the COP. If a Review Panel affirms ODC's dismissal, you may make a request to the COP, in writing within 35 days of the date notice was sent to you, for the Supreme Court to review the disposition. The Supreme Court may, in its sole discretion, review the Panel's disposition.
9. Does COP have any jurisdiction over legal matters?
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.
10. How long does it take to resolve a complaint against an attorney?
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.
11. What if I feel that my attorney’s fees are too high?
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.
12. Does my complaint relate to "DISHONEST" actions of my lawyer?
The Lawyers’ Fund for Client Protection
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.
ODC appreciates your concern in helping to maintain the quality of the legal profession in Montana. You may be assured that all complaints will be handled in an appropriate and thorough manner.
To file a complaint against an attorney, please fill out a Complaint Cover Sheet and forward it to our office with your explanation.