Appendix — O'Neil v. Montana (No. 06-1076)

961076 JAN 21 2007

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

Jerry O’ Neil, on behalf of Himself,

His Clients and His Constituents,

Petitioners.

V.

Montana Supreme Court Commission on the

Unauthorized Practice of Law and the

Montana Supreme Court,

Respondents.

' Petition for a Writ of Certiorari to the

Supreme Court of the State of Montana

PETITIONERS’ APPENDIX

Jerry O'Neil

985 Walsh Road

Columbia Falls, Montana 59912

406-892-7602; 406-892-7603 fax

Representing himself

January , 2007

PETITIONER’S APPENDIX

TABLE OF CONTENTS

Montana Supreme Court Opinion, Comm.

On the Unauthorized Practice of Law v.

O'Neil, No. 04-857, 206 MT 284 (11/08/06)... .... 1-31

Flathead County, Montana, Eleventh Judicial District

Court, Judgment and Permanent Injunction,

Cause No. DV-O02-378B . wc cc cece eres 33-43

Flathead County, Montana, Eleventh Judicial

District Court, /indings of act, Conclusions

of Law, and Judgment Regarding UPL’'s

Motion for Summary Judgment

Cause No. DV-02-378B

Montana Supreme Court, Petition for

Rehearing, UPL v. O'Neil, No. 04-857 .......... 58-60

Montana Supreme Court, Order Denying

Petition for Rehearing, No. 04-857 |...

UPL v. O'Neil, Petition for inding of Civil

Contempt and for Permanent Injunction

ElJeventh Judicial Dist. Cause No. DV-02-378B .... 63-66

2/13/2001 Letter From 11th District Court Judges

to Commission on Unauthorized Practice......... 67-68

Petitioners’ Response to Respondents’ Briefs

and to Their Motion to Deny Petition, submitted

to Montana Supreme Court in Sparks v. Johnson,

(1992) 252 Mont. 39, 826 P.2d 928

November 17, 1989 letter from Montana

Board of Continuing Legal Education

(Exhibit A w/Response in Sparks)

Table of Contents Page 1

April 22, 1988 Report Summary of the

California Public Protection Committee

(Exhibit B w/Response in Sparks) .............. 84-85

In Re the Marriage of Wilcock, 7ranscript

of Proceedings, before Hon. Katherine R.

Curtis, 11° Judicial District, Flathead County... .. . 86-95

In Re the Marriage of Wilcock, Montana

Eleventh Judicial District Court, Brief on

Motion Regarding Representation .............. 96-99

In Re the Marriage of Wilcock, Montana

Eleventh Judicial District Court, DR-97-536B

Affidavit of Fernest B. Wilcock .... 2.2.0.0... 100-102

Statutory Provisions Involved ............... 103-105

Appellants’ Opening Brief, UPL v. O'Neil,

before Montana Supreme Court, Cause 04-857 .. 106-148

Deposition of Mike Alterowitz, UPL v. O'Neil,

before Montana Supreme Court, Cause 04-857 .. 149-152

Table of Contents Page i

OPINION

No. 04-857

IN THE SUPREME COURT OF THE STATE OF

MONTANA

2006 MT 284

MONTANA SUPREME COURT

COMMISSION ON THE

UNAUTHORIZED PRACTICE OF LAW,

Petitioner and Respondent,

V.

JERRY O’NEIL, on Behalf of Himself,

His Clients, and His Constituents,

Respondent and Appellant,

V.

THE MONTANA STATE BAR ASSOCIATION,

Defendant and Respondent.

APPEAL FROM: The District Court of the Eleventh Judicial

District,

In and For the County of Flathead, Cause No. DV 02-378B,

Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jerry O’Neil (pro se), Columbia Falls, Montana

For Respondent Montana Supreme Court Commission on

the Unauthorized Practice of Law:

David A. Hawkins, Attorney at Law, Helena, Montana

For Respondent Montana State Bar Association:

Stephen C. Berg, Johnson, Berg, McEvoy & Bostock,

Kalispell, Montana

Betsy Brandborg, Attorney at Law, Helena, Montana

For Amicus Curiae:

The Honorable Mike McGrath,

Montana Attorney General,

Montana Supreme. Court. Opinion Petitioner's Appendix, pg |

Anthony Johnstone, Assistant Attorney General,

Helena, Montana

Submitted on Briefs: April 5, 2006

Decided: November 8, 2006

Filed: November 8, 2006

s/ Ed Smith

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

{1 The Montana Supreme Court Commission on_ the

Unauthorized Practice of Law (the Commission) filed a Petition

for Finding Civil Contempt and for Permanent Injunction against

Jerry O’ Neil (O’Neil). O’Neil filed a counterclaim against the

Commission along with a third-party complaint against the State

Bar of Montana (the Bar)' alleging defamation, tortious

interference with contract and violation of his, his customers’

and his constituents’ rights to privacy. Prior to trial, the District

Court for the Eleventh Judicial District, Flathead County,

granted the Bar’s Motion for Summary Judgment on O’Neil’s

third-party complaint against the Bar. The court also granted the

Commission’s Motion for Summary Judgment on O’Neil’s

counterclaim against the Commission, but denied the

'O’ Neil erroneously denominated his action against

the Bar as a counterclaim. However, since the Bar was not a

party to the original action, O’Neil’s claim against the Bar

was actually a third-party complaint and will be referred to as

such throughout this Opinion.

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 2

Commission’s Motion for Summary Judgment on the issue of

whether O'Neil engaged in the unauthorized practice of law.

Following a bench trial, the court entered its Judgment and

Permanent Injunction finding O’ Neil in contempt and enjoining

him from practicing law.

42 O'Neil appeals the District Court’s judgment as well as the

court’s grants of summary judgment to the Commission and to

the Bar. O'Neil also challenges the constitutionality of §§ 37-

61-201 and -210, MCA. We affirm.

{3 We address the following issues on appeal:

44 1. Whether O’Neil’s third-party complaint against the Bar

was timely filed.

{5 2. Whether the District Court erred in granting the Bar’s

and the Commission’s Motions for Summary Judgment.

46 3. Whether the District Court abused its discretion in

denying O’ Neil a jury trial.

7 4. Whether §§ 37-61-201 and -210, MCA, are

constitutional as applied by the District Court.

8 5. Whether the District Court erred in finding that O’Neil

engaged in the unauthorized practice of law.

Factual and Procedural Background

{9 O’Neil is not, and never has been, licensed to practice law

in the State of Montana. He has not attended law school; he has

not sat for the Montana bar examination; and he has not met the

Montana Supreme Court’s character and fitness requirements.

O'Neil is not licensed to practice law in any state of the United

States. O'Neil served as a Montana State Senator in the 2001,

2003 and 2005 legislative sessions.

410 O'Neil advertised in the Greater Flathead Valley

Century Tel telephone book as an “independent paralegal” under

the “Attorney” heading in the yellow pages. The advertisement

included the statements that he is “Licensed to Practice Law in

Blackfeet Tribal Court” and that he is a “MEMBER: Child &

Family Section of the Montana State Bar.”

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 3

ql1 On February 13, 2001, Eleventh Judicial District Court

Judges Ted Lympus, Katherine Curtis and Stewart Stadler

wrote the Commission to complain that O’Neil may be engaged

in the unauthorized practice of law. The Judges asked the

Commission to investigate O’ Neil’s actions.

4/12 The Commission had received other information prior to

this time to the effect that O’Neil’s actions may constitute the

unauthorized practice of law. In June 1998, Judge Lympus

wrote to then Montana Supreme Court Chief Justice J. A.

Turnage concerning O’Neil’s efforts to represent one of the

parties in a dissolution proceeding before the District Court. In

February and March 2000, a social worker with Adult

Protective Services complained to the Commission that O’ Neil

was attempting to offer legal advice to an incapacitated

individual for whom the social worker was acting as a guardian.

O’Neil was purportedly acting on behalf of the incapacitated

individual’s ex-wife, against whom a restraining order had been

issued. In January 2001, a member of the Commission received

a transcript sent at the request of Sixteenth Judicial District

Court Judge Joe Hegel. The transcript reflected that O'Neil

assisted one of the parties in a dissolution proceeding by

preparing dissolution materials.

913 On May 16, 2001, Commission Chair John Connor wrote

O’Neil asking for a detailed description of the services O’Neil

provided and the duties that he performed on behalf of his

customers. In his letter, Connor warned O’Neil that if he was

engaged in the unauthorized practice of law, he may be subject

to civil complaint and criminal prosecution. O’Neil’s reply

acknowledged Connor’s request for information, but failed to

actually provide the requested information. Connor sent a

second letter to O’Neil on September 28, 2001, informing him

that the Commission would be conducting an investigation to

determine whether O’Neil was engaged in the unauthorized

practice of law. In his October 9, 2001 reply, O’ Neil engaged in

Montana Supreme. Court. Opinion Petitioner's Appendix. pg 4

a tirade against the Commission stating, “If your object is to try

me without a jury, you had better bring along your chains and

restraints.”

914 On April 25, 2002, Connor again wrote O’ Neil explaining

that, based upon its investigation to date, the Commission had

determined that there was probable cause to believe that O’ Neil

was engaged in the unauthorized practice of law. In his letter,

Connor directed O’Neil to cease and desist from all such

activities. Connor further stated that if the Commission did not

receive a written assurance of compliance from O’ Neil, it would

pursue appropriate legal action against him.

{15 Because O’Neil failed to provide the written assurance

requested, the Commission filed its Petition for Finding of Civil

Contempt and for Permanent Injunction on July 15, 2002. The

Prayer for Relief requested that O’Neil be found in civil

contempt for engaging in the unauthorized practice of law and

that the District Court issue a permanent injunction prohibiting

O’Neil from engaging in such conduct.

16 On November 19, 2002, O’ Neil filed a counterclaim against

the Commission and a third-party complaint against the Bar,

alleging defamation, tortious interference with contract and

violation of his, his customers’ and his constituents’ rights to

privacy. O’Neil also demanded a jury trial. O’Neil’s actions

against the Bar and the Commission were based on the

following facts.

{17 On November 15, 2000, Bar general counsel Betsy

Brandborg received a telephone call from Julia Thomason at

U.S. West Dex asking if O’ Neil was a licensed attorney and, if

not, why he was listed under the “Attorney” heading in the

Yellow Pages. Brandborg explained that O’Neil was not a

licensed attorney with the Bar. Thomason requested a letter

confirming that information and suggested that Brandborg also

request that O’Neil’s name be removed from the “Attorney”

section of the Yellow Pages. Brandborg wrote the following

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 5

letter and sent a copy to O’Neil:

I have noticed that Jerry O’Neil’s “Independent

Paralegal” advertisement is included under the attorney

listing in the yellow pages. Jerry O’Neil is not an

attorney. In spite of his representation to the contrary,

Jerry O’Neil is not a member of the State Bar of

Montana. | request that you remove Jerry O’Neil’s

listing from the attorney section of the yellow pages.

418 On November 23, 2000, O’Neil wrote a letter in reply

claiming that he was an attorney duly licensed by the Blackfeet

Tribal Court and the Confederated Salish and Kootenai Tribal

Court (CS&K Tribal Court). Upon receiving this information,

Brandborg called the CS&K Tribal Court and learned that while

O’ Neil was licensed as an attorney in that court, they had based

that licensure upon O’Neil’s representation that he was licensed

as an attorney in the Blackfeet Tribal Court. Brandborg next

called the Blackfeet Tribal Court and learned that O’ Neil was a

licensed lay advocate with that court, not an attorney.

Thereafter, Brandborg called the CS&K Tribal Court and

conveyed the information she had obtained from the Blackfeet

Tribal Court that O’ Neil was not a licensed attorney with that

court. The CS&K Tribal Court subsequently terminated

O’Neil’s license to practice before that court.

419 Brandborg wrote a second letter to Thomason at U.S. West

Dex, dated December 5, 2000, to clarify the Bar’s position. This

letter read in pertinent part:

As I indicated earlier, Jerry O’ Neil is not an attorney,

i.e., he has not given the State Bar of Montana any

information indicating that he has graduated from an

ABA accredited law school, taken Montana’s bar

examination, or been admitted to the State Bar of

Montana as a member of the State Bar of Montana.

Mr. O'Neil is an associate member of the Family Law

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 6

Section of the State Bar of Montana. In accord with

Article 1, Section 3 of our by-laws, the fact of Mr

O’Neil’s associate membership with the Family Law

Section does not mean Mr. O'Neil can claim

membership in the State Bar of Montana.

As to Mr. O’Neil’s status with the Tnbal

Courts, it is appropriate for your business to

check with them. . . .

Brandborg did not convey this letter or the November 15, 2000

letter to the Tribes nor did she write to either Tribe confirming

the information in the telephone calls

“20 On September 10, 2004, the Bar filed its Motion for

Summary Judgment arguing that it was entitled to judgment as

a matter of law because none of O’ Neil’s three claims for relief

against the Bar satisfied the necessary elements of the law to

state a claim. On September 14, 2004, the Commission filed its

Motion for Summary Judgment also arguing that it was entitled

to judgment as a matter of law because none of O’ Neil’s claims

against the Commission satisfied the necessary elements of the

law to state a claim. In addition, the Commission asserted that

it was also entitled to judgment as a matter of law on its Petition

for Finding of Civil Contempt and for Permanent Injunction

against O’ Neil.

421 The District Court subsequently dismissed O’ Neil's third-

party complaint against the Bar as untimely filed. In its

November 16, 2004 Order granting the Bar’s Motion for

Summary Judgment, the District Court concluded that the third-

party complaint was filed more than 30 days after the

Commission filed its petition and that O’ Neil had not obtained

leave from the court or the parties to file the third-party

complaint after the 30 days in violation of M. R. Civ. P. 14(a)

Montana Supreme. Court. Opinion Petitioner's Appendix. pg 7

The court also ruled that O’Neil’s claim of defamation against

the Bar failed as a matter of law under § 27-2-204(3), MCA,

because it was filed more than two years after the event

triggering the claim, namely, the November 15, 2000 letter from

Brandborg to U.S. West Dex. Moreover, the court ruled that

the Bar was entitled to judgment as a matter of law because

none of O’Neil’s claims against the Bar satisfied the necessary

elements of the law to state a claim.

422 On November 24, 2004, the District Court denied the

Commission’ s Motion for Summary Judgment on its Petition for

Finding of Civil Contempt and for Permanent Injunction against

O’Neil and granted the Commission’s Motion for Summary

Judgment as to O’Neil’s counterclaim against the Commission.

The court ruled that there remained genuine issues as to the

material facts regarding O’Neil’s practice of law as alleged in

the Commission’s petition, thus summary judgment on that issue

was not appropriate. The court dismissed O’Neil’s

counterclaims against the Commission with prejudice because

the Commission is immune from suit under Montana

Commission on the Unauthorized Practice of Law (M.C.U.P.L.)

Rule 10, and because none of O’Neil’s claims against the

Commission satisfied the necessary elements of the law to state

a claim.

423 Following a two-day trial, the District Court entered its

Judgment and Permanent Injunction finding O’ Neil in contempt

for engaging in the practice of law when he is not authorized to

do so and permanently enjoining him from engaging in the

practice of law “until such time as he becomes duly authorized.”

924 O'Neil appeals the Judgment and Permanent Injunction

along with the District Court’s grants of summary judgment to

the Bar and to the Commission. The Bar and the Commission

jointly filed a response brief on appeal.

Standard of Review

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 8

925 We review a district court’s decision to grant summary

judgment de novo. Watson v. Dundas, 2006 MT 104, § 16, 332

Mont. 164, 9 16, 136 P.3d 973, ¥ 16 (citing harmers Union

Mut. ins. Co. v. Staples, 2004 MT 108, { 18, 321 Mont. 99, §

18, 90 P.3d 381, § 18). In doing so, we apply the criteria

contained in M. R. Civ. P. 56©, which provides that the moving

party must establish both the. absence of a genuine issue of

material fact and entitlement to judgment as a matter of law.

Watson, § 16 (citing Grimsrud v. Hagel, 2005 MT 194, ¥ 14,

328 Mont. 142, 9 14, 119 P.3d 47, ¥ 14). The burden then shifts

to the non-moving party to prove, by more than mere denial and

speculation, that a genuine issue of material fact does exist.

Watson, % 16.

426 In addition, we review a district court’s findings of fact to

determine if they are clearly erroneous. Watson, 4 17 (citing

Ramsey v. Yellowstone Neurosurgical Assocs., 2005 MV 317,

q 13, 329 Mont. 489, § 13, 125 P.3d 1091, ¥ 13). To make that

determination, we use the following three-part test: (1) whether

the findings are supported by substantial evidence; (2) whether

the trial court has misapprehended the effect of the evidence;

and {3) whether a review of the record leaves this Court with

the definite and firm conviction that a mistake has been

committed. Watson, | 17. We review a district court’s

conclusions of law for correctness. Watson, § 17 (citing Galassi

v. Lincoln County Bd. of Com 'rs, 2003 MT 319, 7, 318 Mont.

288, | 7, 80 P.3d 84, 7).

Issue 1.

427 Whether O’ Neil’s third-party complaint against the Bar was

timely filed.

428 The Commission filed its Petition for Finding of Civil

Contempt and for Permanent Injunction on July 15, 2002.

O’ Neil filed his Answer to Petition and Demand for Jury Trial

on August 2, 2002. O’ Neil did not file his counterclaim against

Montana Supreme. Court. Opinion Petitioner's Appendix. pg 9

the Commission and his third-party complaint against the Bar

until November 19, 2002.

{29 In its Findings of Fact, Conclusions of Law, and Order

Regarding State Bar of Montana’s Motion for Summary

Judgment, the District Court ruled that O’Neil’s third-party

complaint was untimely under M. R. Civ. P. 14(a), which

requires leave of all parties to the action for the filing of a third-

party complaint ifthe third-party complaint is not filed within 30

days after serving the original answer. Here, O’Neil’s third-

party complaint was filed more than 30 days after he filed his

answer. Nevertheless, O’ Neil’s third-party complaint would be

considered timely if the-parties to the action agreed to the late

filing. See M. R. Civ. P. 14(a).

430 O’Neil contends that for all practical purposes the

Commission is identical in interest and standing in this case to

the Bar, thus his third-party complaint against the Bar was

timely filed along with his counterclaim against the Commission.

Moreover, he asserts that his counterclaim against the

Commission and his third-party complaint against the Bar were

incorporated in his original answer filed on August 2, 2002,

wherein he stated:

Respondent respectfully prays the Court for the

following relief

2. For all the relief requested in the Cross-claim to be

filed in this cause to be incorporated by such filing in

this Response by reference . .. .

431 Contrary to O’Neil’s assertions, the Commission and the

Bar are not the same entity. The Bar is a membership

organization unified by the Montana Supreme Court

to aid the courts in maintaining and improving the

Montana Supremc. Court. Opinion Petitioner's Appendix, pg 10

administration of justice; to foster and maintain on the

part of those engaged in the practice of law high

standards of integrity, learning, competence, public

service, and conduct; to safeguard proper professional

interests of members of the bar . . . and to insure that

the responsibilities of the legal profession to the public

are more effectively discharged.

Supreme Court Order Unifying the State Bar, No. 12616

(1974). The Commission, on the other hand, is a nine-member

investigative committee composed of practicing lawyers and

non-lawyers appointed by this Court and charged with the duty

to protect the public interest by investigating complaints of

unauthorized practice of law. M.C.U_P.L. Rules I{a), 1© and

3(a).

{32 Consequently, O’ Neil’s contention that he did not need to

meet the 30-day requirement in M. R. Civ. P. 14(a) for third-

party complaints because the Bar and the Commission are the

same entity is without merit.

433 O’Neil also contends that he had the District Court’s

express permission for the late filing rendered orally from the

bench and that the Commission and the Bar agreed not to

pursue any Rule 14 claims and to allow O’ Neil to file the third-

party complaint against the Bar.

434 The transcript of the October 28, 2004 pretrial conference

and hearing on the Motions for Summary Judgment indicates

that the following colloquy occurred:

MR. O’NEIL: . . . | don’t believe we need to have

a special rule from the Court to serve that [third-party

complaint}. But if we do | would request the Court to

give us one retroactive in order to conserve the

resources of the Court so we don’t have to go back

and litigate it over again.

As far as the -

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 11

THE COURT: If that’s an issue before the Court,

then, Mr. Berg, Mr. Hawkins, do you wish to take a

position on that?

MR. BERG [Counsel for the Bar]: Judge, for the

State Bar it ts an issue. It is purely procedural. We are

way down the line for it. We are approaching trial. We

don’t want to make it a substantive issue. We don’t

want this case to ride on that and find ourselves here

in six months.

THE COURT: So you object to the filing —

MR. BERG: I will not object to what he is

basically asking of us, which is that we waive the —

THE COURT: 30 days.

MR. BERG: Yes.

THE COURT: All right. And then, Mr. Hawkins?

MR. HAWKINS [Counsel for the Commission]:

I'd agree.

THE COURT: And, sir, based on the lack of

objection from the other two parties, then I will allow

you to file the document that you wish to file.

435 Based on the foregoing, it appears that the District Court

and the parties agreed to allow O’Neil to file his third-party

complaint against the Bar even though it was not filed within the

time prescribed by M. R. Civ. P. 14(a).

436 Accordingly, we hold that the District Court erred in

dismissing O’ Neil’s third-party complaint in part because it was

untimely. Although we have determined that the District-Court

erred on this issue, it is not necessary to remand for further

proceedings since the District Court also entered findings of fact

and conclusions of law on the merits of O’Neil’s third-party

complaint against the Bar sufficient for this Court to consider on

appeal and we affirm on those issues.

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 12

issue 2.

437 Whether the District Court erred in granting the Bar’s and

the Commission’s Motions for Summary Judgment.

38 O’Neil asserted three claims for relief against the Bar and

the Commission: defamation, tortious interference with contract

and privacy. The defamation claim is based on the letters written

by Brandborg to U.S. West Dex. The tortious interference claim

involves those same letters and alleges that the Bar and the

Commission wrongfully interfered with O’ Neil’s contracts with

U.S. West Dex and with the tribal courts and injured his ability

to earn an income. As to the privacy claim, O’ Neil alleges that

the conduct of the Bar and the Commission violated his, his

customers’ and his constituents’ rights to individual privacy “by

interfering with their discussion and disclosure of matters

involving the preparation and strategy of their personal and legal

matters with whom they choose.”

939 First, we agree with the District Court that the claims

against the Commission are barred as the Commission has

immunity from litigation when exercising its functions. To that

end, M.C.U.P.L. Rule 10 provides:

In exercising its functions and powers, the

commission, its members, employees and all personnel

through whom the commission functions shall enjoy

such judicial immunities as the Montana Supreme

Court would enjoy if performing the same functions.

440 The judicial immunities enjoyed by the Montana Supreme

Court (and, pursuant to MC.U.P.L. Rule 10, by the

Commission) are set forth in § 2-9-1 12, MCA,’ which provides:

oe

8 eee

"O'Neil raised no challenge to this statute.

Montana Supreme. Court. Opinion Petitioner’s Appendix, pg 13

(1) The state and other governmental units are immune

from suit for acts or omissions of the judiciary.

(2) A member, officer, or agent of the judiciary is

immune from suit for damages arising from his lawful

discharge of an official duty associated with judicial

actions of the court.

(3) The judiciary includes those courts established in

accordance with Article VII of the Constitution of the

State of Montana.

41 Second, O'Neil provides no evidence to suggest that the

Commission was involved in writing the letters to U.S. West

Dex or in representing to the CS&K Tribal Court that O’ Neil

was not an attorney. Consequently, O’Neil’s claims against the

Commission for defamation and for tortious merirecefa as

a matter of law.

42 Third, O’Neil’s claims against the Bar for defamation and

for tortious interference and against both the Bar and the

Commission for invasion of privacy also fail as a matter of law.

The reasons for this determination are set forth below.

Defamation

943 In its November 16, 2004 Order granting the Bar’s Motion

for Summary Judgment, the District Court determined that

O’Neil’s claim of defamation against the Bar failed as a matter

of law because it was filed more than two years after the event

triggering the claim, namely, Brandborg’s November 15, 2000

letter to U.S. West Dex. The District Court correctly cited § 27-

2-204(3), MCA, which provides that “[t]he period prescribed

for the commencement of an action for libel, slander, assault,

battery, false imprisonment, or seduction is within 2 years.”

Here, O’Neil did not file his third-party complaint against the

Bar until November 19, 2002, two years and four days after the

November 15, 2000 letter.

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 14

944 O’Neil’s argument that his third-party complaint against the

Bar was timely because it was incorporated in his August 2,

2002 answer to the Commission’s petition, is without merit. As

we have already stated, the Bar and the Commission are two

separate entities. Consequently, the Bar did not become a party

to these proceedings until O’ Neil filed his third-party complaint

on November 19, 2002. M. R. Civ. P. 3 provides that “[a] civil

action is commenced by filing a complaint with the court.”

Hence, the statute of limitations on O’ Neil’s defamation claim

did not toll until the complaint was filed, four days too late. This

Court has held that neither ignorance of the law nor the need for

time to present a pro se case constitutes an adequate excuse to

disregard a state of limitations. Columbia Falls. In re Petition

of Gray, 274 Mont. 1, 2, 908 P.2d 1352, 1352 (1995).

{45 Accordingly, we hold that the District Court did not err in

granting summary judgment to the Bar on O’Neil’s defamation

claim.

Tortious Interference

{46 O'Neil contends that the Bar wrongfully interfered with his

contract with “outside jurisdictions and businesses” and injured

his ability to earn an income. O’Neil also argues that the District

Court failed to consider Brandborg’s “false” notification to the

CS&K Tribal Court that O’ Neil was not licensed to practice law

before the Blackfeet Tribal Court and that the CS&K Tribal

Court terminated O’ Neil’s right to practice before them because

of Brandborg’s representations.

147 The Bar contends that in order to assert a prima facie claim

of tortious interference, O’ Neil must show that it “intentionally

committed a wrongful act without justification or excuse.”

Richland Nat. Bank & Trust v. Swenson, 249 Mont. 410, 419,

816 P.2d 1045, 1051 (1991). Hence, the Bar claims that O’ Neil

must show that the Bar’s acts were: (1) intentional and willful;

(2) calculated to cause damage to O’ Neil in his business; and (3)

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 15

done with the unlawful purpose of causing damage or loss

without justifiable cause on their part. Pospisil v. First Nat.

Bank of Lewistown, 2001 MT 286, 4] 13, 307 Mont. 392, 4 13,

37 P.3d 704, 4 13.

48 Here, Brandborg’s letters to U.S. West Dex and

representations to the CS&K Tribal Court were not “wrongful”

acts, nor were they committed “without justification or excuse.”

Brandborg and the Bar have a responsibility to tell the truth

regarding the status of those admitted or not admitted to

practice law in this State. Moreover, Brandborg only reported

what the Blackfeet Tribal Court told her regarding O’Neil’s

status with the Tribe, that O’Neil is a lay advocate, not an

attorney. As the Bar points out in its brief on appeal, the social

interests in protecting the freedom of action of the Bar to tell

the truth outweigh O’Neil’s claimed right to misrepresent his

status as a licensed attorney to the public. As stated in J 31 of

this Opinion, the mission of the Bar includes, armong other

things, the obligation to foster high standards of integrity,

learning, competence, public service and conduct on the part of

those who are engaged in the practice of law and,

concomitantly, to protect the public from those who do not

meet their standards.

49 Accordingly, we hold that the District Court did not err in

granting the Bar’s Motion for Summary Judgment on this issue.

Privacy

450 O’Neil contends that the Bar and the Commission violated

his, his customers’ and his constituents’ rights to privacy as

guaranteed by Article II, Section 10, of the Montana

Constitution, which provides: “The right of individual privacy

is essential to the well-being of a free society and shall not be

infringed without the showing of a compelling state interest.”

O’Neil claims that the conduct of the Bar and the Commission

“violates his customers’ rights to individual privacy by

Montana Supremc. Court. Opinion Petitioner’s Appendix, pg 16

interfering with their discussion and disclosure of matters

involving the preparation and strategy of their personal and legal

matters with whom they choose.”

451 The Bar and the Commission assert that O’ Neil’s claim of

protection for his customers and his constituents fails as O’ Neil

has no standing to assert a violation of another person’s right to

privacy. O’Neil claims, on the other hand, that he has the same

standing to argue the privacy rights of his customers as the

physicians in Armstrong vy. State, 1999 MT 261, 296 Mont. 361,

989 P.2d 364, had to argue the privacy rights of their patients.

We disagree.

452 This Court did hold in Armstrong that healthcare providers

have standing to assert the individual privacy rights of their

women patients to obtain a pre-viability abortion from a

healthcare provider of their choosing. We did so because of the

closeness of the relationship between the women patients and

their healthcare providers. Armstrong, {| 9-13. We stated in

Armstrong that “[a]side from the woman herself, therefore, the

physician is uniquely qualified to litigate the constitutionality of

the State’s interference with, or discrimination against, that

decision.” Armstrong, 4 10.

53 Lost in O’Neil’s reliance on our decision, however, is a

critical distinction between his situation and the healthcare

providers in Armstrong who we determined to have

representational standing to represent the individual privacy and

autonomy interests of their patients. Armstrong, {fj 2-13. In that

case, the physician assistants and the physicians were all licensed

by the State Board of Medical Examiners to perform the

medical procedures and to render the medical services

implicated in the statutory scheme that was at issue in that case.

Armstrong, §§| 1, 63-64. Thus, there was an intimate nexus

between the patients’ individual privacy and autonomy night to

obtain a lawful medical procedure from their chosen, /icensed

healthcare provider. The licensed healthcare providers had as

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 17

much an interest in protecting autonomy and individual privacy

implicit in the provider/patient relationship, as did the patients

themselves because the State licensing authority permitted this

relationship to exist. Armstrong, J 58.

454 This Court did not, however, hold in Armstrong thet a

patient has any individual privacy right to obtain medical

services from one not licensed by the State Board of Medical

Examiners to perform the services at issue. See Armstrong, $f}

59-62.

{55 The point to be noted is that O'Neil is not licensed to

practice law. See § 37-61-201, MCA. He performs paralegal

services. See § 37-60-101(12), MCA. O’Neil cannot enter into

an attorney/client relationship, because he is not an attorney.

Whether O’Neil’s customers reveal private personal and legal

matters to him in his capacity as a paralegal is beside the point.

What is at issue here is O’ Neil practicing law when he is not

licensed to do so. His customers have no privacy right in

seeking from O'Neil legal services which he is not licensed to

perform. And, O’Neil has no representational standing to assert

on behalf of his customers a privacy right that, by law, does not

exist.

{56 The Bar and the Commission also argue that there is no

private right of action against a non-governmental entity. They

maintain that the privacy section of the Montana Constitution

contemplates privacy invasion by state action only. On the

contrary, we stated in Armstrong that

Article Il, Section 10 of the Montana Constitution was

intended by the delegates to protect citizens from

illegal private action and from legisiation and

governmental practices that interfere with the

autonomy of each individual to make decisions in

matters generally considered private.

Armstrong, J 35 (emphasis added).

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 18

957 Finally, we also hold that O’ Neil’s own right to privacy has

not been violated in this case. O’Neil’s advertisements in the

Yellow Pages imply that he is a member of the Bar. The Bar’s

clarification of his lay status in conversations with the Tribes

and correspondence with U.S. West Dex does not fall into the

category of intruding into O’Neil’s “private activities.” No

person has a privacy interest to misrepresent himself to the

public as a licensed professional when he is not. Indeed, it is

O’Neil’s activities that he advertises to the public that are in

question.

958 Accordingly, we hold that the District Court did not err in

granting the Bar’s and the Commission’ s Motions for Summary

Judgment on this issue.

issue 3.

59 Whether the District Court abused its discretion in denying

O'Neil a jury trial.

{60 O’Neil maintains that the Commission sought a finding of

criminal contempt against him and that he was under a threat of

jail time as a result of the injunction. Consequently, he contends

that he was entitled to a jury trial and that the District Court

deprived him of his right to due process by not granting him

one.

461 O’Neil further contends that the District Court’s Order

should be vacated because it violates the mandates of Huffine

v. Montana Sixth Jud. Dist. Court, 285 Mont. 104, 110, 945

P.2d 927, 931 (1997), in that “[p]rosecution for criminal

contempt must be carried out pursuant to the procedures set

forth in Title 46, MCA, to ensure that criminal penalties are not

imposed on someone who has not been afforded the proper

protections.”

62 O’Neil’s contentions are without merit and his reliance on

Ring v. Arizona, 536 U.S. 584, 122 $.Ct. 2428 (2002), and

United States v. Gaudin, 515 U.S. 506, 115 S$.Ct. 2310 (1995),

Montana Supreme. Court. Opinion Petitioner’s Appendix, pg 19

regarding an individual’s right to a jury trial in a criminal

proceeding, is misplaced. The Commission’s requested relief

was for an injunction and a finding of civi/ contempt against

O’Neil for engaging in the unauthorized practice of law, not

criminal contempt.

463 The United States Supreme Court has determined that

contempt proceedings are sui generis.

While contempt may be an offense against the law and

subject to appropriate punishment, certain it is that

since the foundation of our government proceedings to

punish such offenses have been regarded as sui generis

and not “criminal prosecutions” within the Sixth

Amendment or common understanding.

Myers v. United States, 264 U.S. 95, 104-05, 44 §.Ct. 272, 273

(1924). Moreover, contempt proceedings are within the inherent

power of all courts to enforce obedience, and this ability is

something the courts must possess to properly perform their

functions. Myers, 264 U.S. at 103, 44 S.Ct. at 273.

964 In Montana, M.C.U.P.L. Rule 8(b) authorizes the

Commission’s request for a finding of civil contempt:

(1) A civil contempt proceeding for unauthorized

practice of law, as provided by § 37-61-210, MCA, or

other applicable statute or law, shall be prosecuted in

the manner provided by § 3-1-501, et seq., MCA.

(2) The procedure and punishment for a civil contempt

shall be provided by § 3-1-501, et seq., MCA.

(3) Nothing set forth herein shall be construed to

prohibit or limit the right of the district court to issue

a permanent injunction in liew [sic] of or in addition to

any punishment imposed for a civil contempt.

965 A person before a court charged with contempt is entitled

Montana Supreme. Court. Opinion Petitioncr’s Appendix, pg 20

to due process. The nature of the due process to be afforded is

codified at § 3-1-518, MCA, which provides:

Hearing on contempt not committed in immediate

view and presence of court or judge at chambers.

(1) When a person arrested for a contempt not

committed in the immediate view and presence of the

court or judge at chambers has been brought up or

appeared, the court or judge shall proceed to

investigate the charge, shall schedule and hold a

hearing, on any answer that the person arrested may

make to the charge, and may examine witnesses for or

against the person, for which an adjournment may be

had from time to time, if necessary. The judge

investigating the charge and scheduling and presiding

over the hearing may not be the judge against whom

the contempt was allegedly committed, except that if

the contempt arose from the violation of an order of

the court issued after a hearing on the merits of the

subject of the order, the judge who issued the order

may punish the contempt or compel compliance with

the order unless it is shown that the judge would not

be impartial in addressing the contempt.

(2) the charged person must be given a

reasonable opportunity to obtain counsel and prepare

a defense or explanation prior to the hearing. The

charged person may testify and call witnesses at the

hearing. {Emphasis added. |

{66 In Kaufman v. 21st Judicial Dist. Court, 1998 MT 239,

33, 291 Mont. 122, 9 33, 966 P.2d 715, 4 33, we delineated

the measure of due process to be afforded in contempt cases:

In cases in which it is not necessary for a court to

take instant action, however, a contemnor is entitled to

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 21

full due process. This includes a hearing before a

neutral judge, during which the contemnor is advised

of the charges against him or her, has a reasonable

opportunity to meet them by way of defense or

explanation, has the nght to be represented by counsel,

has a chance to testify and call other witnesses on his

behalf, and, in instances in which criminal punishment

is a consequence, a finding of guilt beyond ~

reasonable doubt.

67 Furthermore, even if this were a criminal contempt

proceeding, there is no general federal constitutional right to a

trial by jury with respect to criminal contempt proceedings in

federal or state courts. Bessette v. W.B. Conkey Co., 194 U.S.

324, 336-37, 24 S.Ct. 665, 670 (1904); Muniz v. Hoffman, 422

U.S. 454, 95 S.Ct. 2178 (1975); International Union, United

Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552

(1994). In criminal contempt cases imposing serious contempt

penalties, there mighi be a right to a jury trial, see Duncan v.

Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968), however, the

term “serious” has not been fully defined. In Muniz, a fine of

$10,000 imposed on a union was insufficient to be considered »

serious enough to trigger the right to tnal by jury. Muniz, 422

U.S. at 477, 95 S.Ct. at 2190-91. The Supreme Court also

suggested in /nternational Union that imprisonment for a period

of six months or less was not a serious penalty. /nternational

Union, 512 U.S. at 826-27, 114 S.Ct. at 2557.

968 Section 37-61-210, MCA, provides that if a person

practices law in any court (except a justice’s court or a City

court), without being licensed as an attorney, then that person

is guilty of contempt of court. The law does not require any

particular penalty be imposed. In addition, § 3-1-511, MCA,

provides that contempt committed in the presence of the court

allows a penalty of a fine not to exceed $500 or imprisonment

Montana Supreme. Court. Opinion Petitioncr’s Appendix, pg 22

for a term not to exceed 30 days, or both. Section 3-]-520,

MCA, provides that contempt to compel performance allows a

penalty of a fine not to exceed $500 and/or confinement unt!

the contemnor has performed the act. None of these sanctions

rise to the level of a “serious” penalty as provided under federal

law, and O’ Neil advances no argument supporting a different

definition of “serious” under State law.

969 O'Neil is entitled to due process under § 3-1-518(2), MCA,

but the potential penalty in this action did not rise to a level that

might require a jury trial. O’Neil was not charged with criminal

contempt under § 45-7-309, MCA, and the Commission did not

ask for confinement or a fine. Consequently, O'Neil was

afforded all the process due him including a reasonable

opportunity to obtain counsel and to prepare a defense or

explanation prior to the hearing, as well as the opportunity to

testify in his own behalf and to call witnesses at the hearing. On

the facts of this case, O’ Neil is not entitled to a higher standard

of due process which might include a jury trial.

470 Accordingly, we hold that the District Court properly ruled

that the contempt proceeding against O’Neil could be tried

without a jury.

Issue 4.

471 Whether §§ 37-61-201 and -210, MCA, are constitutional

as applied by the District Court.

{72 O'Neil contends that the Montana Constitution does not

give the Supreme Court any rule-making authority over those

outside of a court setting. On the contrary, in State v.

Merchants’ Credit Service, 104 Mont. 76, 94, 66 P.2d 337, 339

(1937), overruled on other grounds by Rae v. Cameron, \12

Mont. 159, 114 P.2d 1060 (1941), this Court stated:

The first question for determination is whether

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 23

this court has jurisdiction to punish for contempt, if the

acts complained of constitute unlawful practice of law.

This court is by statute given the exclusive power to

confer upon any persons the nght to practice law and

to deprive them of that right. If any person shall

engage in the practice of law without being authorized

so to do, even though that practice is not done

directly in this court, it has the right to punish for

contempt. [Internal citations omitted and emphasis

added. |

Furthermore, “[p]ursuant to the provisions of Article VIL,

Section 2, of the Constitution of the State of Montana, the

Montana Supreme Court has inherent jurisdiction to prohibit the

unauthorized practice of law.” M.C.U.P.L. Rule 1(b).

473 As the Bar and the Commission point out in their brief on

appeal, the primary reason for prohibiting the unauthorized

practice of law is to protect the public from being advised and

represented by unqualified persons not subject to professional

regulation. In a case decided more than 90 years ago, this Court

stated:

When we consider the relationship of attorney and

client and its consequences to the client, as well as to

his possible adversary, it becomes manifest that

insistence upon due authorization of the persons acting

as attorneys is of vital importance. .. . The people

have a right to presume that the law in this respect is

being enforced; if it is not enforced, such persor 25

- intrust their business to an unchallenged preter Jer are

permitted, in matters of life, of liberty and of property,

to lean upon a broken reed.

In re Bailey, 50 Mont. 365, 369, 146 P. 1101, 1103 (1915). We

also recognized in Bailey that “it is universally held that the

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 24

practice of law is not an inherent right but a privilege, subject

entirely to state control.” Bailey, 50 Mont. at 369, 146 P. at

1103 (emphasis added).

174 O’Neil also contends that §§ 37-61-201 and -210, MCA,

are too overbroad and vague to impose any restrictions on his

liberty and are insufficient to support the court’s finding of

“criminal” contempt and entry of an injunction against him. The

Bar and the Commission point out that while O’Neil did not

brief the constitutionality of these statutes at the District Court

level and the District Court did not address that issue, the

constitutionality of these statutes was implicitly raised

throughout the tral and in O’Neil’s brief on appeal and thus

merit this Court’s review. We agree.

{75 In spite of O’Neil’s contentions to the contrary, the

Legislature (and not the Supreme Court) enacted the statutes on

unauthorized practice that O’ Neil claims to be unconstitutional.

These statues provide:

Who considered to be practicing law. Any

person who shall hold himself out or advertise as an

attorney or counselor at law or who shall appear in any

court of record or before a judicial body, referee,

commissioner, or other officer appointed to determine

any question of law or fact by a court or who shail

engage in the business and duties and perform such

acts, matters, and things as are usually done or

performed by an attorney at law in the practice of his

profession for the purposes of parts | through 3 of this

chapter shall be deemed practicing law.

Section 37-61-201, MCA.

Penalty for practicing without license. If any

person practices law in any court, except a justice’s

court or a city court, without having received a license

Moniana Supreme. Court. Opinion Petitioner's Appendix, pg 25

as attorney and counselor, he is guilty of a contempt of

court.

Section 37-61-210, MCA.

976 O'Neil incorrectly frames his freedom of speech challenge

to these statutes as an overbreadth challenge. However, the

overbreadth doctrine enables plaintiffs to challenge a statute, not

because their own rights of free expression are violated, “but

because of a judicial prediction or assumption that the statute’s

very existence may cause others not before the court to refrain

from constitutionally protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908,

2916 (1973).

477 The overbreadth doctrine

is an exception to the general rule that statutes are

evaluated in light of the situation and facts before the

court. A_ statute which can be applied to

constitutionally protected speech and expression may

be found to be invalid in its entirety, even if it could

validly apply to the situation before the court.

However, a statute cannot be challenged just because

it might result in an unconstitutional abridgment of

speech in a _ hypothetical case. Rather, the

unconstitutional overbreadth must be real, but

substantial as well, judged in relation to the statute’s

plainly legitimate sweep.

State v. Allum, 2005 MT 150, § 29, 327 Mont. 363, § 29, 114

P_3d 233, ¥ 29 (internal citations and quotation marks omitted).

978 Here, O’Neil claims that there is a direct constitutional

injury to his personal “First Amendment rights of freedom of

speech, expression, association, petition and privacy” as a result

Montana Supreme. Court. Opinion Petitioncr’s Appendix. pg 26

———

of a specific application of the unauthorized practice statutes to

his conduct. O’ Neil fails to show, however, that the impact of

the statutes on the conduct of other speakers will differ from its

impact on his conduct, hence his case is not susceptible to a

facial overbreadth challenge based on hypothetical applications

of the law not before this Court. See Hill v. Colorado, 530 U.S.

703, 731-32, 120 S.Ct. 2480, 2497-98 (2000). “To the extent

that the statute may reach constitutionally protected

expression,” any potential constitutional infirmities not

implicated by O’Neil’s case could “be cured through case-by-

case analysis of the fact situations where the statute is assertedly

being applied unconstitutionally.” State v. Lilburn, 265 Mont.

258, 270, 875 P.2d 1036, 1044 (1994), ceri. denied, 513 U.S.

1078, 115 S.Ct. 726 (1995).

79 The central question O’Neil’s freedom of speech challenge

poses is whether the District Court’s injunction that O’ Neil may

not engage in the practice of law, as defined by § 37-61-201,

MCA, and further specified by the injunction’s terms,

unconstitutionally restricts O’ Neil from engaging in conduct

protected by the First Amendment and Article Il, Section 7, of

the Montana Constitution. The United States Supreme Court

has responded to this question by holding that regulation of the

bar “is a subject only marginally affected with First Amendment

concerns.” Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447, 459, 98 S.Ct. 1912, 1920 (1978). Other courts

have repeatedly rejected claims “that an individual has a First

_ Amendment right to practice law in any way of his choosing,

free even of rationally-based regulation,” because such a

“broadly formulated First Amendment argument here would, if

successful, greatly undermine the power of states to regulate bar

membership, when this power has been repeatedly recognized

and upheld by the courts.” Russell v. Hug, 275 F.3d 812, 823

(9th Cir. 2002).

80 Just as O’ Neil has no First Amendment right to practice law

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 27

siti

without a license, his customers have no First Amendment right

to unlicensed legal representation. The Supreme Court has

recognized a First Amendment right to receive legal advice, but

that right is limited to clients of duly qualified attorneys

consistent with “the State’s interest in high standards of legal

ethics.” United Mine Workers v. Illinois State Bar Ass'n, 389

U.S. 217, 225, 88 §.Ct. 353, 357 (1967). The unauthorized

practice statutes are narrowly tailored to target only the

provision of legal services in Montana by individuals who have

not proven through examination and admission to the bar that

they “are qualified and possess a familiarity with [Montana]

law.” Mothershed v. Justices of Supreme Court, 410 F.3d 602,

611-12 (9th Cir. 2005). There remain ample alternative channels

for providing legal services to O’Neil’s customers—the

thousands of licensed attorneys in Montana.

81 O’ Neil also contends that the unauthorized practice statutes

are unconstitutionally vague because they fail to define what

constitutes the practice of law. “A statute is void for vagueness

on its face if it fails to give a person of ordinary intelligence fair

notice that the statute does not permit his contemplated

conduct.” Yurczyk v. Yellowstone County, 2004 MT 3, ¥ 33,

319 Mont. 169, 33, 83 P.3d 266, 4 34° (citing State v. Martel,

273 Mont. 143, 150, 902 P.2d 14, 18 (1995)).

82 This Court has long defined the practice of law to include

legal services whose product touches legal matters not

immediately at issue in court:

A person who makes it his business to act and who

does act for and by the warrant of others in legal

The paragraph numbers in the Pacific Reporter differ from the

paragraph numbers in the Montana Reports because Pacific

Reporter numbered two consecutive paragraphs the same.

Montana Supreme. Court. Opinion Petitioncr’s Appendix, pg 28

formalities, negotiations or proceedings, practices law;

and when his acts consist in advising clients touching

legal matters pending or to be brought before a court

of record, or in preparing pleadings or proceedings for

use in a court of record, or in appearing before a court

of record, either directly or by a partner or proxy, he

is practicing law in a court of record.

Bailey, 50 Mont. at 367-68, 146 P. at 1002 (internal citations

omitted). Here, §§ 37-61-201 and -210, MCA, provide fair

notice of the prohibited conduct.

983 Accordingly, we hold that §§ 37-61-201 and -210, MCA,

are constitutional as applied by the District Court.

Issue 5.

184 Whether the District Court erred in finding that O'Neil

engaged in the unauthorized practice of law.

185 O’Neil argues that the injunction is “neither precise nor

comprehensible to a reasonable person” and that the phrase

“things usually done or performed by an attorney at law in the

practice of his profession” is “vague rather than precise,

subjective rather than objective, and utterly insufficient to

support an injunction, much less the threat of criminal contempt

for the violation of that injunction.”

{86 in its written judgment filed January 10, 2005, the District

Court listed the following as indicia of the practice of law:

a. The giving of advice or counsel to others as to their

legal nghts or responsibilities or the legal rights or responsibility

of others.

b. Selecting, drafting and completing legal papers,

pleadings, agreements and other documents which affect the

legal nghts or responsibilities of others.

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 29

c. Appearing, or attempting to appear, as a legal

representative or advocate for others in a court or tribunal of

this state.

d. -Negotiating the legal rights or responsibilities of

others.

e. Holding one’s self out or advertising one’s self as an

attorney admitted to practice law in Montana; or, holding one’s

self out as a non-attorney entitled to practice law in Montana;

or otherwise advertising services in a manner that would

reasonably mislead the public to believe that one is an attorney,

or otherwise licensed or certified legal advocate in the courts of

the State of Montana.

Contrary to O’Neil’s contentions, these indicia are precise,

comprehensible to a reasonable person and sufficient to prevent

a person of common intelligence from having to guess at their

meaning.

487 O’Neil’s conduct of drafting pleadings for his customers,

providing them with legal advice and appearing in court with his

customers, unquestionably constitutes “practicing law” under §

37-61-201, MCA. And, O’ Neil readily admits that he has done

so without having received a license to practice law under § 37-

61-210, MCA.

988 Accordingly, we hold that the District Court did not err in

finding that O’ Neil engaged in the unauthorized practice of law.

{89 O'Neil also claims that we should give full faith and credit

to the acts of the Tribes as we would the acts of any other state

or federal government. On that basis, he argues that because he

is an attorney licensed to practice in the Blackfeet Tribal Court,

we should allow him to practice law in our State courts. First,

as already noted in this Opinion, O’ Neil is not an attorney with

the Blackfeet Tribal Court, he is a lay advocate. Second, absent

a statutory requirement to the contrary, the doctrine of full faith

and credit does not apply here. The Tribe is a sovereign nation

and can license whomever it wants before its courts. There is no

Montana Supreme. Court. Opinion Petitioner's Appendix. pg 30

requirement that full faith and credit be given to that decision as

regards the practice of law in Montana’s State courts. ,

490 O’Neil further claims that he should be admitted to practice

before Montana’s state courts pro hac vice. However,

Montana’s rules on pro hac vice admission require admission in

“the highest court of another state.” Rules for Admission to the

Bar of Montana § 4 (2005). O’Neil is not an attorney and he is

not from out of state. We do not perfunctorily admit attorneys

to practice pro hac vice from out of state; there is an entire

process they must go through, not the least of which is that they

must be admitted to the practice of law in another state by that

state’s highest court.

991 Affirmed.

/S/ JAMES C. NELSON

We concur:

/S/ JIM RICE

/S/ W. WILLIAM LEAPHART

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

Montana Supreme. Court. Opinion Petitioner's Appendix, pg 31

Hon. Deborah Kim Christopher

20" Judicial District Court

Lake County Courthouse

106 Fourth Avenue E

Polson, MT 59860

(406) 883-7360

MONTANA ELEVENTH JUDICIAL DISTRICT

COURT, FLATHEAD COUNTY

COMMISSION ON THE 7

UNAUTHORIZED Cause No. DV 02-378B

PRACTICE OF LAW,

Petitioner,

VS. :

ones © pe eat JUDGMENT AND

BEHALF OF HIMSELF,

PERMANENT

HIS CLIENTS AND HIS INJUNCTION

CONSTITUENTS,

Respondent.

The above-entitled cause came on regularly for trial on

November 29, 2004 before the Honorable Deborah Kim

Christopher presiding without a jury and was tried. Special

Deputy County Attorney David A. Hawkins appeared on

behalf of the Petitioner, the Commission on Unauthorized

Practice of Law (hereinafter referred to as UPL), and

Respondent Jerry O’ Neil (hereinafter referred to as O'Neil)

appeared pro se.

Before trial the court issued partial summary judgment

on Respondent’s Counterclaims. Those findings and order are

incorporated by this reference.

Flathcad County, Judgment & Permanent Injunction Pet. App. pg 32

Oral and documentary evidence was introduced on behalf

of the respective parties and the cause was argued and

submitted. The Court, having considered the evidence and

heard argument, issued a Bench Ruling finding O’ Neil in

contempt and finding a permanent injunction appropriate.

This judgment and injunction follows in accord with that

ruling.

JURISDICTION

1. The UPL complaints shall be by written petition filed by

the Commission in its name with the district court in the

district in which the respondent resides or maintains his or her

principal place of business. MT Comm. Unauth. Prac. Law

Rule 8 (2003)

2. Petitioner is the Supreme Court Commission on the

Unauthorized Practice of Law (UPL). The UPL is authorized

to bring this action pursuant MT Comm. Unauth. Pract Law

Rule | (2003).

3. O'Neil is a resident of Flathead County, Montana

4 This Court has jurisdiction of this matter.

FINDINGS OF FACT

1. O’Neil is not, and never has been, admitted in or licensed

to practice law in Montana. He has not attended law school.

He has not sat for the bar. He is not admitted in or licensed to

practice in any sister states in the United States.

2. O’Neil is engaged in an independent business based in

Flathead County, Montana.

3. O’Neil promotes his business as that of an “Independent

Paralegal”.

4. O’Neil works without tre supervision of a licensed

attorney.

5. O’Neil consults with customers and potential clients on

legal issues. In consulting, O’ Neil determines the salient facts

and pertinent law. O’Neil analyzes the facts and the law.

Flathead County, Judgment & Permanent Injunction Pet. App. pg 33

O’Neil advised on legal rights and responsibilities, suggests

legal remedies and chooses legal documents to file based on

his analysis of his clients’ wishes.

6. Onmat least one occasion, O’Neil proposed to review a

court file, provide his analysis of the legal situation and

propose what he believed to be in the person’s “best interest”.

He proposed to then take legal action to accomplish legal

goals for this person in the form of dismissing a petition for

dissolution of marriage or bringing the dissolution to a legal

conclusion. O’ Neil offered to provide these services for an

hourly rate of $90 per hour. These services were offered to an

incapacitated person who had been appointed a guardian and

an attorney to represent his interests. O’ Neil was solicited to

provide these services by the incapacitated person’s wife

against whom there was a restraining order preventing her

from having contact with the incapacitated person.

7. O'Neil drafts pleadings and other legal documents for

others. He prepares these documents with the intent that they

be filed in court. It is intended that the court take action

through these pleadings.

8. Specifically, O’Neil routinely prepares pleadings for the

dissolution of marriage. On numerous occasions when O’ Neil

was approached by persons interested in obtaining a

dissolution of marriage he interviewed them. As a result of his

interview, he determined the appropriate legal forms he

believed were necessary for their particular dissolution, and

prepared those forms. He testified clients might be offered

choices from various selections of language he had created to

deal with various aspects of their lives. O’Neil drafted those

selections and the forms he used.

9. O’Neil also prepares testamentary wills.

10. O’Neil prepares pleadings without identifying himself as

the responsible party and designates his customer as pro se.

11. O’Neil attempts to appear on behalf of others in court by

Flathcad County, Judgment & Permanent Injunction Pet. App. pg 34

written and verbal motions to the court. Through those

motions and pleadings he asserts that he is entitled or

authorized to appear.

12. O'Neil has appeared at counsel table, or in the

courtroom, and advised others during court proceedings.

13. O'Neil charges a fee commensurate with the fees charges

by area attorneys for similar services. O’Neil’s fees are

significantly in excess of that of a typing service or of local

paralegals. Dean Knapton testified that as an experienced

attorney in the local area that his hourly rate for services is

$95 per hour. O’ Neil defended that he provided a typing

service. Knapton testified that when he last used a typing

service in about 1998 he paid $5.00 per page. O’ Neil charges

$500 to $600 to prepare the pleadings for a dissolution which

may or may not include mediation.

14. O’Neil advertises his services in the “Attorneys” section

of the Yellow = of the phone book.

15. O’Neil’s advertisement promotes that he is a member of

the Montana State Bar’s Section on Family Law, he practiced

law in the tribal courts of the Confederated Salish and

Kootenai Tribes, and he is an advocate and counselor in the

tribal court of the Blackfeet Tribe. He testified that the only

reason for these qualifications was to reassure customers that

he would not take the money they paid for his typing. But he

does not advertise he is a Montana State Senator as

reassurance that he is honest. And he is fighting to be able to

advertise in the “attorney” section. The Court finds that

O’Neil has used his memberships to imply that he is qualified

to provide the legal advice necessary to assure the documents

he prepares are legally correct and individually appropriate

for the customer. O’ Neil’s implications are false and lead a

customer to believe that O’ Neil is a licensed attorney.

From the foregoing Findings of Fact, the Court draws the

following:

Flathead County, Judgment & Permancnt Injunction Pet. App. pg 35

NCLUSION WwW

O’ Neil is engaged in the practice of law.

|. MCA § 37-61-201 defines who is considered to be

practicing law.

a. Any person who shall hold himself out or advertise

as an attorney or counselor at law; or,

b. Who shall appear in any court of record or before a

judicial body, referee, commissioner, or other officer

appointed to determine any question of law or fact by a court,

or,

c. Who shall engage in the business and duties and

perform such acts, matters and things as are usually done or

performed by an attorney at law in the practice of his

profession . .. shall be deemed practicing law. § 37-61-20].

2. Missoula Attorney Michael Alterowitz appeared and

testified on behalf of Petitioner. His testimony is accepted as

expert testimony and is credible. Alterowitz opined that the

practice of law may be defined as providing legal advice to an

unrelated third party with or without consideration. He

reviewed the exhibits submitted at trial. He reviewed the

exhibits offered as an exemplar of O’ Neil’s dissolution

pleadings. Alterowitz opined that according to the statutory

definition of the practice of law and his own understanding of

that definition, O’Neil’s activities constituted the practice of

law.

3. State District Court Judge Loren Tucker appeared and

testified on behalf of Petitioner. His testimony is accepted as

expert testimony and ts credible. Tucker opined that the

practice of law may be defined as providing legal advice. He

defined providing legal advice as assessing and evaluating

facts, ascertaining what law may be applicable to those facts;

offering advice about, or acting upon the determinations

made about what law is applicable to the facts; and assisting

others in achieving a desired goal in that context. He

Flathcad County, Judgment & Permancnt Injunction Pet. App. pg 36

reviewed the exhibits submitted at trial. He reviewed the

exhibits offered as an exemplar of O’ Neil’s dissolution :

pleadings. Judge Tucker opined that according to the

statutory definition of the practice of law and his

understanding of that definition that O’Neil’s activities

constituted the practice of law.

4. The court finds the following to be indicia that a person

is engaged in the practice of law:

a. The giving of advice or counsel to others as to-

their legal rights or responsibilities or the legal rights or

responsibility of others.

b. Selecting, drafting and completing legal papers,

pleadings, agreements and other documents which affect

the legal rights or responsibilities of others.

c. Appearing, or attempting to appear, as a legal

representative or advocate for others in a court or

tribunal of this state.

d. Negotiating the legal rights or responsibilities of

others.

e. Holding one’s self out or advertising one’s self

as an attorney admitted to practice law in Montana, or,

holding one’s self out as a non-attorney entitled to

practice law in Montana; or otherwise advertising

services in a manner that would reasonably mislead the

public to believe that one is an attorney, or otherwise

licensed or certified legal advocate in the courts of the

State of Montana. ;

5. O’Neil consults with others about legal issues and

provides legal advice. In consulting with others, O’Neil

determines the salient facts and pertinent law. O’Neil analyzes

the facts and the law. O’ Neil advises on legal rights and

responsibilities.

6. O’Neil holds himseif out, and falsely implies by his

advertising, that he is an attorney or an authorized legal

Flathead County, Judgment & Permanent Injunction Pet. App. pg 37

representative or advocate in the courts of the State of

Montana through the following acts:

a. O’Neil advertises his services in the “Attorneys”

section of the Yellow ** of the phone book.

b. O’Neil promotes himself as a member of the State

Bar’s Section on Family Law without clarifying that he is a

non-attorney member.

c. O’Neil advertises his practice of law in the Blackfeet

tribal court, falsely implying that he is a licensed attorney in

the courts of the State of Montana.

7. O’Neil attempts to appear in court on behalf of his

customers or counsels his customers with legal advice during

court proceedings.

8. O’Neil advises customers as to their legal rights and

responsibilities.

9. O'Neil drafts pleadings and other legal documents. He

prepares these documents with the intent that they be filed in

court. He intends that the court take action on behalf of third

persons through these pleadings. O’ Neil prepares pleadings

without identifying himself as the responsible party and

designates his customer as pro se.

10. Based on the whole of O’Neil’s actions it is obvious that

he is engaged in the practice of law.

O’Neil is not authorized to practice law.

1. O’Neil admits that he is not authorized to practice law in

the courts of the State of Montana.

2. The Rules for Admission to the State Bar of Montana

require that a candidate for admission:

a. Bea graduate of a law school accredited by the

American Bar Association

b. Apply for and receive a favorable decision from the

Commission on Character and Fitness.

c. Successfully complete the Bar examinations

d. Sign the roll of attorneys kept by the Clerk of the

+ tathead County, Judgment & Permanent Injunction Pet. App. pz 38

Supreme Court, sign the attorney ethics oath, and recite an

oath prescribed by the Supreme Court.

Rules for Admission to the State Bar of Montana.

3. O'Neil has not satisfied any of these prerequisites for

admission.

4. The “Unauthorized Practice of Law” is defined as the

practice of law without being first duly qualified, as

prohibited by statute, court rule, or case law of the state.

Mont. Comm. Unauth. Prac. Law Rule 2 (2003)

5. O'Neil is not duly qualified or admitted to practice and

therefore his practice of law is unauthorized.

A finding of contempt is appropmiate.

|. Ifany person practices law in any court, except a

justice’s court or a city court, without having received a

license as attorney and counselor, he is guilty of a contempt

of court. § 37-61-210.

2. A finding of contempt is also appropriate under § 3-1-

501. This section provides that assuming to be an officer,

attorney, or counsel of a court and acting as that individual

without authority is contempt of the authority of the court.

§ 3-1-5011; /n re Phillips, (1922) 64 Mont. 492, 210 P.89;

Huffine v. Montana Sixth Judicial Dist. Court, (1997) 285

Mont. 104, 945 P2d 927, 54 Mont. St. Rep. 1065.

3. O'Neil is found to be in contempt.

Issuing an Injunction is a proper remedy.

!. An injunction is an order requiring a person to refrain

from a particular act. The order may be granted by the court

in which the action is brought or by a judge thereof and, when

made by a judge, be enforced as the order of the court. § 27-

19-101.

2. A final injunction may be granted to prevent the breach

of an obligation existing in favor of the applicant where:

a. Pecuniary compensation would not afford adequate

relief.

Flathead County. Judgment & Permancnt Injunction Pct. App. pg 39

b. It would be extremely difficult to ascertain the

amount of compensation which would afford adequate relief;

c. The restraint is necessary to prevent a multiplicity of

judicial proceedings; or

d. The obligation arises from a trust.

3. The rules on the unauthorized practice of law specifically

provide for the issuance of an injunction to preclude the

continued unauthorized practice. State. Mont. Comm.

Unauth. Prac. Law Rule 8 (2003).

4. The long-standing nature of O’Neil’s business and his

resistance to this action implies he intends to continue with

these activities unless otherwise precluded.

5. Pecuniary compensation will not restore the harm done

to the judicial and legal systems, or the harm potentially done

to others. Ascertaining the amount of compensation would be

impossible. Bringing individual actions to preclude O’ Neil’s

business activities would be extremely difficult and result in a

multiplicity of judicial proceedings. An injunction would

enforce the responsibility of the Supreme Court to maintain

the professionalism of the practice of law.

From the foregoing Findings of Fact and Conclusions of

Law, the Court enters the following:

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that:

1. This court has proper jurisdiction over this matter and

these parties.

2. Respondent, Jerry O’Neil, engages in the practice of law

and is not authorized to do so.

3. Respondent 1s found to be in contempt for his

unauthorized practice of law.

4. Respondent is hereby permanently enjoined from

engaging in the practice of law until such time as he becomes

duly authorized.

INJUNCTION

a

Flathead County, Judgment & Permanent Injunction Pet. App. pg 40

RESPONDENT IS HEREBY ENJOINED AND

RESTRAINED from performing, directly or indirectly, and of

the following acts within the State of Montana or with an

effect upon the people of the state:

1. Respondent may not engage in the practice of law.

2. Engaging in the practice of law is defined by MCA § 37-

61-201.

3. The court shall consider the following as indicia of the

practice of law:

a. The giving of advice or counsel to others as to their

legal rights or responsibilities or the legal rights or

“responsibility of others.

b. Selecting, drafting and completing legal papers,

pleadings, agreements and other documents which

affect the legal rights or responsibilities of others.

c. Appearing, or attempting to appear, as a legal

representative or advocate for others in a court of

this state.

d. Negotiating the legal rights or responsibilities of

others.

e. Holding one’s self out or advertising one’s self as an

attorney admitted to practice law in Montana; or,

holding one’s self out as a non-attorney entitled to

practice law in Montana; or, advertising services in a

manner that would reasonably mislead the public to

believe that one is an attorney, or otherwise licensed

or certified legal advocate in the courts of the State

of Montana.

4. These indicia are not all-inclusive, but are factors that the

court may consider.

5. Whether or not they constitute the practice of law, the

following are permitted:

a. Aets or actions performed for and on behalf of

himself as an individual;

Flathead County, Judgment & Permanent Injunction Pet. App. pg 41

_

b. Acting as a lay representative if authorized by

administrative agencies or tribunals to do so;

c. Serving in a neutral capacity as a mediator,

arbitrator, conciliator, or facilitator without practicing law;

d. Acts or actions performed by a guardian,

conservator, guardian ad litem or other lay representative

authorized by a court, administrative agency or tribunal;

e. Acting as a legislative lobbyist or in his capacity as a

Montana State Senator;

f. Such other activities that the Supreme Court has

determined by published opinion do not constitute the

unlicensed or unauthorized practice of law.

g. Nothing in this judgment shall affect the ability of

the Respondent to provide information of a general nature

about the law and legal procedures to members of the public.

6. Nothing in this judgment shall affect the ability of

Respondent from acting under the supervision of an active

and duly licensed Montana attorney in compliance with Rule

5.3 of the Rules of Professional Conduct.

RETENTION OF JURISDICTION

This court will retain jurisdiction of this matter for the

purpose of any party to apply for clarification or for direction.

Jurisdiction is retained for modification of the injunction.

Jurisdiction is retained for enforcement of the judgment and

injunction, and for punishment of any violation of its terms.

This judgment and injunction is effective immediately

upon its entry.

ORDERED this 23™ day of November, 2004.

DATED this 7" day of January, 2005.

s/ Deborah Kim Christopher

Deborah Kim Christopher, District Judge

Flathead County, Judgment & Permancnt Injunction Pet. App. pg 42

CERTIFICATE OF SERVICE

1, the undersigned, hereby certify that on this 7" day of

January, 2005, I served a true and complete copy of the

foregoing “Judgment and Permanent Injunction” by

depositing the same in the United States Mail, postage

prepaid thereon, addressed as follows:

David A. Hawkins, Special Deputy County Attorney

Commission on Unauthorized Practice of Law

PO Box 577

Helena, MT 59624

Attorney for Petitioner and Counter

Defendant Commission on Unauthorized

Practice of Law

Stephen C. Berg, Attorney at Law

PO Box 3038

Kalispell, MT 59903

Betsy Brandborg, Attorney at Law

PO Box 577

Helena, MT 59624

Attorneys for Counter Defendant State Bar of Montana

Jerry O'Neil

985 Walsh Road

Columbia Falls, MT 59912

Pro Se Respondent and Counter-Plaintiff

/Rose Bridenstine

Rose Bridenstine

Judicial Assistant

Flathead County. Judgment & Permancnt injunction Pct. App. pg 43

Hon. Deborah Kim Christopher

20" Judicial District Court

Lake County Courthouse

106 Fourth Avenue E

Polson, MT 59860

(406) 883-7360

MONTANA ELEVENTH JUDICIAL DISTRICT

COURT, FLATHEAD COUNTY

COMMISSION ON THE Pci ol

UNAUTHORIZED -

PRACTICE OF LAW,

Petitioner,

er FINDINGS OF

JERRY O’ NEIL, ON BEHALF OF

FACT

HIMSELF, ,

HIS CLIENTS AND HIS CONCLUSIONS

CONSTITUENTS, OF LAW,

Respondent and Counter AND

Plaintiff JUDGMENT

i REGARDING

MONTANA SUPREME COURT UPL’S MOTION

COMMISSION ON FOR

UNAUTHORIZED PRACTICE OF SUMMARY

LAW and THE MONTANA JUDGMENT

STATE BAR ASSOCIATION, a

trade association integrated with the

Montana Supreme Court,

Counter Defendants.

Flathead County District Court, Summary Judgment

Pct. App. pg 44

The above cause came before the Court upon Plaintiff's

Motion for Summary Judgment filed on September 14, 2004.

Present at the hearing on October 28, 2004 were: David

Hawkins, counsel for Plaintiff, Stephen Berg, counsel for

Montana State Bar Association; and Jerry O’ Neil, Defendant

pro se. Counsel for the parties presented oral argument. The

Court has considered the arguments of the parties, the briefs,

the affidavits, and the pleadings on file in this matter and now

enters the following:

FINDINGS OF FACT

1. O’Neil is not, and never has been, licensed to practice

law in the State of Montana. He has not attended law school.

He has not sat for or met the Montana Supreme Court's bar

examination requirements. He is not licensed to practice law

in any state of the United States. (O’ Neil deposition p. 31,

32,44, 63, 64)

2. O’Neil is engaged in an independent business based in

Flathead County, Montana.

(O’ Neil deposition p. 5)

3. O'Neil promotes his business as that of an

"Independent Paralegal". (O’ Neil deposition p. 5.)

4. O’Neil works without the supervision of a licensed

attorney. (O’ Neil deposition p.37.)

5. O’Neil prepares pleadings without identifying his

involvement in the drafting of the documents and designates

his customer as pro sea (O’ Neil deposition p. 16, 61, 75, 76)

6. O’Neil prepares affidavits of indigence for customers

who have paid him to prepare the pleadings. (O’ Neil

deposition p. 23)

7. O’Neil has attempted to appear on behalf of his

customers in court asserting that he is entitled to appear on

behalf of his customers. (O’Neil deposition p. 25) Sparks v.

Johnson, (1992) 252 Mont. 39, 826 P.2d 928

Flathead County District Court. Summary Judgment Pct. App. pg 45

8. O’ Neil has sat at counsel table, or in the courtroom,

and advised his customers during court proceedings. Sparks

V. Johnson, (1992) 252 Mont. 39, 826 P.2d 928.

9. O’Neil charges a fee. (O’Neil deposition p. 8)

10. O’Neil promotes himself as a member of the State

Bar's Section on Child and Family Law. (O’ Neil deposition p.

33, 77)

11. O'Neil practiced law in the tribal courts of the

Confederated Salish and Kootenai Tribes, and advertised this

practice to the public. (O’Neil deposition p. 63)

12. O’ Neil practices in the tribal court of the Blackfeet

Tribe, and uses this status to advertise his practice as an

attorney to the public. (O’ Neil deposition p. 25, 63)

13. O'Neil is a state legislator. (O’ Neil deposition p. 45)

14. On November 15,2000, State Bar Counsel Betsy

Brandborg received a telephone call from Julia Thomason at

US West Dex asking if O’ Neil was a licensed attorney, and if

not, why he was listed under the "Attorney" heading in the

Yellow Pages. (Brandborg deposition, p.20.) Brandborg

explained that O’Neil was not a licensed attorney with the

State Bar. fd. Thomason requested a letter confirming that

information, and suggested that Brandborg also request that

O’Neil's name be removed from the attorney section of the

Yellow Pages. Brandborg wrote such a letter and sent a copy

to O’Neil. (Third Party Defendant's Exhibit A).

15. O'Neil on November 23,2000, wrote a letter in

protest, alleging Tribal licensure as an attorney. (Third Party

Defendant's Exhibit B.)

16. Concerned about having made a possible

misrepresentation, Brandborg called the Confederated Salish

and Kootenai Tribal Court and learned that while O’ Neil was

licensed as an attorney, they had based that licensure upon

O’ Neil's representation that he was an attorney member of the

Blackfeet Tribe. (Brandborg deposition, p. 21; Third Party

Flathead County District Court, Summary Judgment Pet. App. pg 46

Defendant's Exhibit C.)

17. Upon calling the Blackfeet Tribe, Brandborg learned

that O’ Neil was a licensed lay advocate, not an attorney

advocate. Id.

18. Brandborg called the Salish Kootenai Tribe and

conveyed the information from the Blackfeet that O’ Neil was

not licensed as an attorney. Id. Brandborg further explained

that while O’Neil was a lay member of the Family Law

Section of the State Bar, section membership did not mean he

was a lawyer, licensed to practice law in Montana. Id.

19. Brandborg then wrote a second letter to Thomason

at US West Dex, dated December 5, 2000, to clarify the State

Bar's position, specifically stating: "The State Bar of Montana

cannot advise you as to the appropriate placement of Mr.

O’Neil's advertisement. I strongly encourage you to consult

your own attorney as to whether it is appropriate to include

Mr. O’ Neil's advertisement under the attorney heading in the

yellow pages." (Third Party Defendant's Exhibit D.)

20. O’ Neil incorrectly believes Brandborg wrote letters

to the Tribes “saying that [he] wasn't licensed in the state of

Montana and, therefore, they might want to take [his] license

away in the Tribal court." (O’ Neil deposition, p. 63.) There

were no letters written concerning O’ Neil from Brandborg to

either Tribe. Brandborg did not convey either of the letters to

US West Dex to the Tribes, nor did Brandborg write a

separate letter to either Tribe confirming the information in

the telephone calls. (Third Party Defendant's Exhibit E.)

21. There is no evidence before the Court to support

O’Neil's mistaken belief that Brandborg conveyed any wang

to the Tribes about his licensure.

22. O’NEIL has and continues to hold himself out or

advertise himself as an attorney admitted to practice law in

Montana or as a non-attorney entitled to practice law in

Montana or otherwise advertises services in a manner that

Flathead County District Court, Summary Judgment Pet. App. pg 47

would lead the public to believe that he is an attorney or a

licensed or certified legal advocate. (O’Neil deposition p. 77)

23. O’Neil advertises in the 2003 Greater Flathead Valley

CenturyTel phone book as an "independent paralegal." The ad

includes the statement "Member, Child and Family Law

Section of the Montana State Bar." (O’ Neil deposition, pp.

76-77.)

24. O'Neil advertises his services in the "Attorneys"

section of the Yellow Pages of the phone book. (O’ Neil

deposition p. 5-6, 77.)

25. Third party Respondent, the Montana State Bar

Association, is a membership organization established by the

Supreme Court to govern and control the practice of law in

the State of Montana. In the Order creating the Bar, the

Court stated the Bar's purpose to maintain and improve "the

administration of justice in Montana, and to foster and

maintain on the part of those engaged in the practice of law

high standards of integrity, learning, competence, public

service, and conduct; to safeguard proper professional

interests of members of the bar...and to insure that the

responsibilities of the legal profession to the public are more

effectively discharged." (Supreme Court Order Unifying the

State Bar, No. 12616, 1974.)

26. Petitioner's Petition for Finding of Civil Contempt

and for Permanent Injunction against O’ Neil was filed July

15,2002. O’ Neil's Answer to the Petition and Demand for

Jury Trial was dated August 2,2002. Later, on November

19,2002, without requesting leave of Court or Parties,

O’NEIL filed his Third Party Complaint against the Montana

State Bar

Association and Petitioner.

27. O’Neil's Third Party Complaint was filed more than

30 days after Petitioner's Complaint was filed. (Court

Record).

Flathead County District Court, Summary Judgment Pet. App. pg 48

28. O’NEIL's Third Party Complaint was filed more than

two years after the event triggering this action, namely, the

initial Brandborg letter to US West Dex on November 15,

2000.

29. O'Neil failed to file a response to Petitioner's and

Third Party Defendant's Motion for Summary Judgment,

which were filed September 14,2004 and September 10,2004

respectively, until October 27,2004. There is no record of his

requesting or receiving permission from the parties or this

Court to late file his response on October 27, 2004 in

violation of Rule 12(a) of the Montana Rules of Civil

Procedure.

From the foregoing Findings of Fact, the Court draws the

following:

CONCLUSIONS OF LAW

1. Jurisdiction.

Petitioner is the Supreme Court Commission on the

Unauthorized Practice of Law (UPL). The UPL is authorized

to bring this action pursuant to MT Comm. Unauth. Prac.

Law Rule I (2003).

O'Neil is a resident of Flathead County, Montana. UPL

complaints shall be by written petition filed by the

Commission in its name with the District Court in the district

in which the respondent resides or maintains his or her

principal place of business. MT Comm. Unauth. Prac. Law

Rule 8 (2003).

This Court has jurisdiction of this matter.

2. Summary judgment is not appropriate as to UPL's

complaint.

There remain genuine issues as to the material facts

regarding Mr. O’ Neil's practice of law as alleged in the

complaint filed by the UPL Commission. Summary judgment

is not appropriate when there are disputed issues of fact.

Olson v. Osmolak, 2003 MT 151,316 Mont. 216, 70 P.3d

Flathead County District Court, Summary Judgment Pet. App. pg 49

1242. A motion for summary judgment can only be granted

when "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law. Rule 56( c) M_R.Civ.P.

The burden is on the party seeking summary judgment to

demonstrate a complete absence of any genuine issues of

material fact. Payne Realty & Hous. v. First Sec. Bank,

(1992),256 Mont. 19,24, 844 P.2d 90,93. Moreover, the

evidence must be viewed in the light most favorable to the

non-moving party, and all reasonable inferences must be

drawn in favor of the party opposing summary judgment.

Fisch v. Mont. Rail Link, Inc., 2003 MT 76, 315 Mont. 13,

67 P.3d267.

There is a genuine issue of material fact concerning the

nature of Mr. O'Neill's business and whether he engaged in

the practice of law.

3. Summary judgment is appropriate as to the third

party complaint.

There is no genuine issue as to any material fact on the

issues contained in O’ Neil's "Counter-Claim". The UPL

Commission is entitled to judgment as a matter of law. "A

summary judgment... may be rendered on the issue of liability

alone although there is a genuine issue as to the amount of

damages." Rule 56© M.R.Civ.P. In order for summary

judgment to issue, the movant must demonstrate that there is

no genuine issue as to all facts deemed material in light of the

substantive principles entitling the movant to judgment as a

matter of law. Rule 56© M_R Civ.P., Board of Dentistry v.

Kandarian, (1994) 268 Mont. 408,886 P.2d 954, Frigon v.

Morrison-Maierle, Inc., 233 Mont. 113, 117,760 P.2d 57,60

(1988); Cereck v. Albertson's, (1981) 195 Mont. 409, 411,

637 P.2d 509,51 L

Flathead County District Court, Summary Judgment Pet. App. pg 50

~

4. Respondent's counter-claim for defamation is

dismissed.

Defamatory words, to be actionable, as exposing a

person to hatred, contempt, ridicule, or obloquy or which

have a tendency to injure him in his occupation, must be of

such a nature that the court can presume as a matter of law

that they will tend to disgrace and degrade the plaintiff or

cause him to be shunned and avoided. It is not sufficient,

standing alone, that the language is unpleasant and annoys or

irks him and subjects him to jests or banter so as to affect his

feelings.

An expression of opinion is generally not actionable. Frigon v.

Morrison-Maier/e, Inc., (1988) 233 Mont. 113, 760 P.2d 57,

followed in Board of Dentistry. v. Kandarian, (1994) 268

Mont. 408,886 P.2d 954.

O’Neil is a state legislator and is therefore a public

figure. In Gertz v. Robert Welch, Inc., 418 U.S. 323,41

L.Ed 2d 789, 94 §.Ct. 2997 (1974), as applied by Wheeler v.

Green, 286 Ore. 99,593 P.2d 777 (1979), the U.S. Supreme

Court affirmed the District Court ruling that the privilege

established in New York /imes Co. v. Sullivan, 376 U.S. 254,

11 LED.2d 686, 84 S.Ct. 710 (1964), for criticism of a public

figure's conduct applied to persons like the defendant who

were not connected with the news media. In Gertz, the U.S.

Supreme Court expanded the privilege of fair comment,

established in New York Times Co., to apply to all public

figures and did not limit the application of the privilege only

to media defendanis. Wi/liams v. Pasma, (1982) 202 Mont.

66, 656 P.2d 212.

In order to recover actual damages, a private person

suing for defamation must prove that: (1) the published

material was false; (2) the defendant is chargeable with fault;

and (3) actual injury ensued. Further, such plaintiff may

recover punitive damages if he proves malice. When the

Flathead County District Court, Summary Judgment Pet. App. pg 51!

plaintiff is a public official or a public figure, he may recover

only if he proves malice. Madison v. Yunker, (1978) 180

Mont 54, 67, 589 P.2d 126.

There is no evidence to support a finding of defamation.

There is no evidence that the UPL participated in any of the

defamatory actions alleged. Because O’ Neil is a public figure,

evidence of actual malice is required. There is no evidence

that the UPL acted with malice.

The counter-claim for defamation is dismissed.

5. The counter-claim for tortious interference with

contract is dismissed.

To establish tortious interference of contract, there must

be a contract.

Under § 28-2-102 MCA it is essential to the existence of

a contract that there be:

a. Identifiable parties capable of contracting;

b. Their consent;

¢. A lawful object; and,

d. A sufficient cause or consideration.

O’Neil has not presented any evidence of the existence of

a contract.

There are four elements required to establish the tort of

interference with a contract. It must be shown that the acts (I)

were intentional; (2) were calculated to cause damage to the

plaintiff in his or her business; (3) were done with the

unlawful purpose of causing damage or loss, without right or

justifiable cause on the part of the actor; and (4) actually

resulted in damage and loss to the plaintiff Northwestern

Nat'l Bank v. Weaver-Maxwell, Inc., (1986) 224 Mont. 33,

40-41, 729 P.2d 1258, 1262; Bolz v. Myers, (1982) 200

Mont. 286, 295, 651 P.2d 606, 611.

O’ Neil's claim for defamation fails as there is no evidence

in the record that the published materials, i.e., the letters to

US West Dex, were false. The undisputed facts establish that

Flathead County District Court, Summary Judgment Pet. App. pg 52

O’Neil is not an attorney licensed by the State Bar of

Montana or any Tribe in Montana. O ‘Neil testified in his

deposition that he was not licensed to practice law in the state

of Montana. (O’ Neil deposition, 63-64.) Even assuming, as

O’Neil does, that Brandborg wrote the Tribes saying that

O’ Neil was not a lawyer, O’ Neil's claim fails. The core fact at

issue is that O’ Neil is not a lawyer. The published material, to

the extent it exists, is true, not false. UPL is also entitled to

summary judgment on this claim.

Summary judgment is appropriate on the claim of

tortuous interference with contract as no facts support the

claim and there are no genuine issues of material fact. In

order to assert a prima facie claim of tortious interference

with business relations, O’ Neil must show that the UPL

"intentionally committed a wrongful act without justification

or excuse." Richland Nat '] Bank & Trust v. Swenson, (1991)

249 Mont. 410,419,816 P.2d 1045, 1051. O’Neil must show

that the UPL acts were: (1) intentional and willful; (2)

calculated to cause damage to O’ Neil in his business; and (3)

done with the unlawful purpose of causing damage or loss

without justifiable cause on UPL's part. Healow v. Anesthesia

Partner, 92 F.3d 1192 (9th Cir. Mont. 1996), Pospisil v.

kirst Nat'l Bank, 2001 MT 286,307 Mont. 392, 37 P.3d 704.

O’Neil did not present evidence to satisfy any of the four

elements to establish the tort of interference with a contract

6. The Counter-claim of violation of privacy is

dismissed.

Summary judgment is appropriate on the claims involving

privacy as no facts support the claim and there are no genuine

issues of material fact. O’ Neil alleges that the UPL's conduct

“violates his customer's rights to individual privacy by

interfering with their discussion and disclosure of matters

involving the preparation and strategy of their personal and

legal matters with whom they choose." (Counter-claim, p. 8,

Flathead County District Court. Summary Judgment Pet. App. pg 53

lines 13-15.) O’Neil also alleges the UPL is violating his own,

his customer's and his constituents right to privacy guaranteed

by Article II, Section 10 of the Montana Constitution.

(Counter-claim, p. 8, lines 10-12.) O’ Neil has no private right

of action for invasion of privacy against UPL, a Supreme

Court created entity. Nor does O’Neil have standing to claim

he's protecting the privacy rights of his clients and

constituents.

Article Il, Section 10 of the Montana Constitution

provides: "Right of privacy. The right of individual privacy is

essential to the well-being of a free society and shall not be

infringed without the showing of a compelling state interest."

In Sfate v. Long, (1985) 216 Mont. 65, 71, 700 P.2d 153,

157, the Montana Supreme Court very clearly held that the

privacy section of the Montana Constitution, Mont. Const.

Art. n, § 10, contemplated privacy invasion by state action

only. There is no private nght of action against a

non-governmental entity permitted under Montana's

Constitution. O’ Neil's claim is a private action against a

non-governmental entity, and as such, is specifically barred by

Long.

There are no material issues of fact. O’ Neil advertises in

the 2003 Greater Flathead Valley CenturyTel phone book as

an “independent paralegal." The ad includes the statement

"Member, Child and Family Law Section of the Montana

State Bar." (O’ Neil deposition, p. 7677.) Under the facts

presented against the UPL, the suggestion of intrusion into

O’Neil's private activities seems bizarre. O’Neil's ad implies

he is a member of the State Bar. Certainly, clarification of the

lay status of the Section membership in conversations with

the Tribe and correspondence with US West Dex does not

fall into the category of intruding into O’Neil's "private

activities."

7. The UPL is immune from tort actions.

Flathead County District Court, Summary Judgment __ Pet. App. pg 54

Under State. Mont. Comm. Unauth. Prac. Law Rule 10

(2003) fhe UPL is immune from suit. Rule 10 provides: (a)

Complaints, testimony and other presentation or arguments

submitted to the Commission on Unauthorized Practice of

Law, an area committee, any member of the Commission or

of any such committee, and any Commission investigator or

special counsel, all proceedings and conduct maintained or

engaged in, and all testimony and showings with respect to

any of said matters shall be absolutely privileged, and no civil

litigation predicated thereon may be instituted or maintained.

Members of the Commission on Unauthorized Practice,

members of the area committees, investigators, special

counsel, and members of their respective staffs shall be

immune from civil suit and damages for any conduct or

occurrence in the course of or arising out of performance of

any Official duties in connection with these Rules. MT Comm.

Unauth. Prac. Law Rule 10 (2003).

Immunity ts also provided under MCA § 2-9-112.

(1) The state and other governmental units are

immune from suit for acts or omissions of the

judiciary.

(2) A member, officer, or agent of the judiciary is

immune from suit for damages arising from his

lawful discharge of an official duty associated with

judicial actions of the court.

(3) The judiciary includes those courts established in

accordance with Article Vil of The Constitution of

the State of Montana.

O’ Neil's counter-claims are dismissed because the UPL is

immune from suit and O’ Neil has not presented any

compelling reason to overcome this immunity.

8. O’ Neil lacks standing to bring suit on behalf of

others.

Flathead County District Court, Summary Judgment Pet. App. pg 55

O’ Neil's claim of protection for his clients and

constituents fails as he has no standing to assert violation of

another person's rights. Monk v. Teeter, 951 F.2d 361 (9th

Cir. Cat. 1992).

9. Additionally, O’ Neil committed technical

violations that support the dismissal.

The Third Party Complaint was untimely filed by O’ Neil

against the Supreme Court's Commission on the

Unauthorized Practice of Law. Rule 14 of the Montana Rules

of Civil Procedure require leave of the Court and Parties for

the filing of the Third Party Complaint. Leave to file was not

sought or given. Petitioner included the defense in its

Affirmative Defenses and O’Neil had notice of his procedural

error. The counter-claims are subject to dismissal on that

basis alone. M.R.Civ.P. Rule 14.

O’Neil's claim for relief for defamation also fails as a

matter of law under § 27-2-204(3), MCA as O’ Neil's Third

party Complaint was filed more than two years after the event

triggering the action in O’Neil's complaint, namely, the initial

Brandborg letter to US West Dex on November 15,2000.

From the foregoing Findings of Fact and Conclusions of

Law, the Court enters the following:

JUDGMENT

O’ Neil's counter-claims of defamation, tortious

interference with contract and violations of privacy are

dismissed with prejudice. .

DATED this 23rd day of November, 2004.

/Deborah Kim Christopher

Deborah Kim Christopher, District Judge

Flathead County District Court, Summary Judgment Pet. App. pg 56

CERTIFICATE OF SERVICE

|, the undersigned, hereby certify that on this 23" day of

November, 2004, I served a true and complete copy of the

foregoing “Findings of Fact, Conclusions of Law and

Judgment Regarding UPL’s Motion for Summary Judgment”

by depositing the same in the United States Mail, postage

prepaid thereon, addressed as follows:

David A. Hawkins, Special Deputy County Attorney

Commission on Unauthorized Practice of Law

PO Box 577

Helena, MT 59624

Attorney for Petition and Counter Defendant

Commission on Unauthorized Practice of Law

Stephen C. Berg, Attorney at Law

PO Box 3038

Kalispell, MT 59903

Betsy Brandborg, Attorney at Law

PO Box 577

Helena, MT 59624

Attorneys for Counter Defendant State Bar of Montana

Jerry O’ Neil

985 Walsh Road

Columbia Falls, MT 59912

Pro Se Respondent and Counter-Plaintiff

s/ Rose Bridenstine

Rose Bridenstine, Judicial Assistant

Flathead County District Court, Summary Judgment Pet. App. pg 57

Jerry O'Neil

985 Walsh Road

Columbia Falls, Montana 59912

406-892-7602

406-892-7603 FAX

aneii(@centurvtel.net

IN THE SUPREME COURT OF STATE OF MONTANA

MONTANA SUPREME COURT

COMMISSION ON THE UNAUTH- No. _04-857

ORIZED PRACTICE OF LAW,

Petitioner and Respondent,

™ PETITION

JERRY O'NEIL, On Behalf of Him- FOR

self, His Clients & His Constituents, REHEARING

Respondent and Appellant,

VS.

THE MONTANA STATE BAR

ASSOCIATION, a Trade Association

Integrated with the Montana Supreme

Court.

Defendant and Respondent.

I realize the Montana Supreme Court cannot afford to let

a jury decide that my helping people is proper. Being the head

of the monopoly known as the “integrated bar,” they have too

much to lose if a jury rules in my favor. Therefore they have to

allow the lower court to summarily rule against me without

allowing me a jury trial.

But I would appreciate it if they didn’t overlook the fact

Petition for Rehearing, Montana Supreme Court Pet. App. pg 58

that | am an “advocate”, or include the lie, in their opinion

which states that I am a “lay advocate” in the Blackfeet Tnbe

When Chief Justice Gray states, “the devil is in the details,” does

she mean the court is justified to lie about those details in order

to reach its desired end? This shallow obfuscation is demeaning

to the intelligence of the members of Montana’s highest court

and to the Montana public.

There are 3 levels of advocates in the Blackfeet Tribal

Court; “attorney advocates” who are licensed by the Montana

Supreme Court, “lay advocates” who are members of the

~ Blackfeet Tribe, and “advocates” (advocate and counselor) who

have successfully completed an application and questionnaire on

Tribal law prepared by the Chief Judge and paid the required

admission fee.

To support the lie that I am a “lay advocate” ignores my

Certificate of Admission which was attached to Appellants’

Opening Brief, ignores that I am not a member of the Blackfeet

Tribe, and ignores the transcript (pg 359, lines 1-4) where Judge

Christopher acknowledges:

You ve indicated and provided proof to the court that

the Tribal — the Blackfeet Tribal Court does authorize

you to appear before them as an advocate and a

counselor.

The court should also be ashamed of itself for predicating

Montana citizens’ right to privacy in communications on the

requirement they be licensed by the state before they make those

communications.

Being the highest court in the State of Montana, surely the

Montana Supreme Court can draft opinions which accomplish

its purposes without having to include lies in them.

Dated this 14" day of November 2006.

s/ Jerry O’ Neil

Petition for Rehearing, Montana Supreme Court Pet. App. pg 59

CERTIFICATE OF SERVICE

I hereby certify that today I served true and accurate copies

of the accompanying Petition for Rehearing by depositing said

copies into the U.S. Postal Service, postage prepaid, addressed

to the parties listed below:

David A. Hawkins,

Attorney at Law

Commission on

Unauthorized Practice

PO Box 577

Helena, Montana 59624

John P. Connor, Jr., Asst

Atty General

PO Box 201401

Helena, Montana 59620-

1401

Stephen C. Berg, Attorney

at Law

PO Box 3038

Kalispell, Montana 59903

Clerk of the Supreme Court

215 North Sanders

PO Box 203003

Helena, Montana 59620-

3003

Donald R. Murray,

Attorney at Law

431 1" Avenue West

Kalispell, Montana 59901

Dated this 14" Day of November 2006.

Petition for Rehearing, Montana Supreme Court

s/ Jerry O'Neil

Pet. App. pg 60

IN THE SUPREME COURT OF

THE STATE OF MONTANA

No. 04-857

MONTANA SUPREME COURT

COMMISSION ON THE

UNAUTHORIZED PRACTICE

OF LAW,

Petitioner and Respondent,

ORDER

V.

JERRY O’NEIL, on Behalf of FILED

Himself, His Clients and His

Constituents, DEC 06, 2006

Respondent and Appellant

V. Ed Smith

CLERK OF THE

THE MONTANA STATE BAR SUPREME COURT

ASSOCIATION, A Trade STATE OF

Association Integrated with the MONTANA

Montana Supreme Court,

Defendant and Respondent.

Before this Court is Jerry O’Neil’s pro se Request for

Rehearing filed November 15, 2006. The Court having

considered the matter,

IT IS HEREBY ORDERED that Jerry O’ Neil’s Request

for Rehearing is DENTED.

IT IS FURTHER ORDERED that the Clerk of this

Order Denving Rchearing, Montana Supreme Court Pet. App. pg 6!

Court give notice of this C,<\ by mail to Jerry O’ Neil at his

last known address and to all counsel of record.

DATED this _6"_ day of November December, 2006.

s/ James C. Nelson

_s/ W. William Leaphart

s/ Patricia Cotter

s/ Bnan Morris

s/ Jim Rice

Order Denying Rehearing, Montana Supreme Court Pet. App. pg 62

David A. Hawkins

Special Deputy County Attorney

Commission on Unauthorized Practice of Law

PO Box 577

Helena, Montana 59624

Attorney for Petitioner

IN THE ELEVENTH JUDICIAL DISTRICT COURT OF

THE STATE OF MONTANA IN AND FOR

THE COUNTY OF FLATHEAD

COMMISSION ON THE Case No. DV-02-378(B)

UNAUTHORIZED

PRACTICE OF LAW, PETITION FOR FINDING

Petitioner, OF CIVIL CONTEMPT

AND FOR PERMANENT

and INJUNCTION

JERRY O’NEIL, KATHERINE R. CURTIS

Respondent.

COMES NOW the Commission on the Unauthorized

Practice of Law as Petitioner, through its special counsel,

David A. Hawkins, and petitions the Court as follows:

PETITIONER’S COUNSEL

David A. Hawkins appears herein as counsel for the

Commission on the Unauthorized Practice of Law. This

appearance is made at the request of the Commission and by

special appointment of the Flathead County Attorney

designating counsel as a Special Deputy County attorney for

the purpose of prosecuting this action. The Court is also

advised that counsel is regularly employed by the State of

Montana. Counsel is appearing in a personal capacity on

behalf of the Commission and ts not representing his regular

Petition for Civil Contempt, Flathead Cnty Dist. Court Pet. App. pg 63

employer in any capacity whatsoever.

PARTIES

The Commission on the Unauthorized Practice of Law is

a Commission created by the Montana Supreme Court under

Article Vil, Section 2 of the Constitution of the State of

Montana. The Commission is governed by the Rules of the

Commission on Unauthorized Practice.

Jerry O'Neil is a resident of Flathead County. O’Neil is

alleged to be engaging in acts which constitute the practice of

law in Flathead and other Montana Counties.

JURISDICTION

This Court has jurisdiction of this matter pursuant to

RCUPL Rule 8(a)(1).

RELIEF SOUGHT

The Commission asks the Court to find Jerry O’ Neil in

_ Civil Contempt for the unauthorized practice of law and to

issue a permanent injunction prohibiting O’ Neil from

engaging in such conduct.

ALLEGATIONS

a. The Commission on Unauthorized Practice is a

commission duly authorized and empowered to act in these

matters by the Montana Supreme Court.

b. Jerry O'Neil is a resident of Flathead County.

c. Jerry O'Neil has been and is engaged in the

unauthorized practice of law.

d. O/’Neil is not licensed by the State of Montana to

practice law. The State Bar of Montana does not recognize

O’Neil as an attorney in Montana.

e. The practice of law ts defined by MCA §37-61-201

and at common law. Violation of this section is a contempt of

court pursuant to MCA §37-61-210.

f. O'Neil practices law by consulting with customers

on legal issues and providing legal advice. He advises

customers as to their legal rights. He drafts pleadings and

other legal documents. O’ Neil prepares pleadings without

Petition for Civil Contempt, Flathead Cnty Dist. Court Pet. App. pg 64

identifying himself as the responsible party and designates his

customer as pro se. He prepares affidavits of indigency for

customers who have paid him to prepare the pleadings.

O’Neil attempts to appear on behalf of his customers in court

and asserts that he is entitled to appear on behalf of his

customers. He advises his customers during court

proceedings. O’ Neil charges a fee commensurate with the

fees charged by area attorneys for similar services. His fees

are in excess of that of a typing service or of local paralegals.

O'Neil advertised his services in the “Attorneys” section of

the Yellow Pagese of the phone book for Flathead County

until the directory publisher refused to continue his

advertisement. He promotes his business as that of an

“Independent Paralegal”. As such, O’ Neil works without the

supervision of a licensed attorney. Neither the law nor the

rules governing the practice of law in the State of Montana

allow for the practice of law by independent paralegals.

O’Neil promotes himself as a member of State Bar Section on

Family Law, implying that he is a licensed attorney. Until

recently, O’ Neil practiced law in the tribal courts of the

Confederated Salish and Kootenai Tribes. He likewise

advertised this practice to the public, again implying that he

was a licensed attorney in the State of Montana. O’ Neil has

engaged and engages in other acts and practices constituting

the practice of law.

g. The Commission repeatedly advised O’ Neil that he

was violating the rules against the Unauthorized practice of

law. He disregarded these cautions.

h. The Commission ordered O’ Neil to cease and desist

his practice of law. O’Neil refused and he continues to engage

in the unauthorized practice of law.

i. Because O’Neil refused to comply with the cease

and desist order of the commission, the commission is forced

to bring this petition.

PRAYER FOR RELIEF

Petition for Civil Contempt, Flathead Cnty Dist. Court Pet. App. pg 65

Petitioner requests that the Court grant the following

relief:

a. That O’Neil be found in civil contempt for engaging

in the unauthorized practice of law;

b. . That the Court punish O’Neil for the civil contempt

as provided for in MCA §3-1-501 et seq.;

c. That the Court issue a permanent injunction

proscribing O’ Neil from engaging in the unauthorized

practice of law;

d. That the Court allow the Commission its costs and

an attorney stipend for the expense of bringing this action.

Petitioner asks that such costs and stipend be determined by a

separate hearing; and

e. For such other and further relief as the Court may

deem just and equitable.

Dated this 12" day of July, 2002

By: ___s/ David A. Hawkins

David A. Hawkins

Petition for Civil Contempt, Flathead Cnty Dist. Court Pet. App. pg 66

STATE OF MONTANA ELEVENTH JUDICIAL DISTRICT,

FLATHEAD COUNTY

FLATHEAD COUNTY JUSTICE CENTER

920 SOUTH MAIN, KALISPELL, MONTANA 59901

District Court Judges

Ted O. Lympus Katherine R. Curtis Stewart E. Stadler

(406) 758-5667 (406)758-5669 (406) 758-5906

Bonnie J. Olson

Court Administrator

February 13, 2001

Mr. James G. Hunt, Chair

Commission on Unauthorized Practice

of the Supreme Court of the

State of Montana

P.O. Box 577

Helena MT 59624

Dear Mr. Hunt:

We are writing to you as chair of the Commission on

Unauthorized Practice. Last fall you indicated that the

Commission has been funded and would investigate

complaints concerning the unauthorized practice of law.

There are two individuals in Flathead County who

advertise themselves as “independent paralegals” and who

routinely prepare and file pleadings for people initiating or

responding to dissolution or child custody proceedings. For a

period of time, we directed the Clerk of Court to not accept

pleadings prepared by one of these persons (Connie Monroe),

because her papers were very deficient in many respects. She

Letter, 11th District Judges to UPL Commission Pet. App. pg 67

apparently has now gotten some training and is asking us to

once again accept her papers. We are very reluctant to do so

because it would then appear that we were sanctioning the

unauthorized practice of law, but we cannot then justify

allowing the other individual (Jerry O’ Neil) to continue with

_ essentially the same practice.

We have been told by these two individuals, and their

clients, that they are not giving legal advice, but we believe

the contrary to be true. For example, one of Mr. O’Neil’s

customers stated in Court that he had been told that the 20-

day waiting period for a decree of dissolution could be

waived and directed the Court’s attention to a document

prepared by Mr. O’Neil that purportedly accomplished this

waiver. It appears to us that this is the rendering of legal

advice, and bad advice at that. We know that Judge Whelan

in Butte recently had an experience with pleadings prepared

by Mr. O’Neil (who is also a state senator), and felt as well

that he was engaging in the unauthorized practice of law

We have been somewhat reluctant in the past to raise this p

matter because of our concern that the legal system is

becoming progressively unaffordable for many people, and

these paralegals are more affordable. However, our local bar,

with the assistance of the local Legal Services office, has just

begun a pro bono project to assist many of these people in

getting good, affordable legal advice, so it seems timely to

request the Commission to investigate to determine if, in fact,

there are litigants who are receiving and acting upon legal

advice from these non-lawyers.

Thank you, and please feel free to contact any of us or

our Court Administrator, Bonnie Olson, for further

information.

Sincerely yours,

s/ Ted O. Lympus s/ Katherine R. Curtis s/ Stewart E. Stadler

(406) 758-5667 (406)75%-5669 (406) 758-5906

Letter. 11th District Judges to UPL Commission Pet. App. pg 68

Karen Sparks

566 Spokane Ave.

Whitefish, MT 59937-2781]

862-4922

Jerry O'Neil

P.O. Box 575

Kalispell, MT 59903

752-8903

IN THE SUPREME COURT OF

THE STATE OF MONTANA

JERRY O’NEIL, and ) CASE NO.

KAREN SPARKS, )

Petitioners, )

) PETITIONERS’ RESPONSE-

VS. ) TO RESPONDENTS’

. -~—)} BRIEFS AND TO THEIR

BRAD JOHNSON, ) MOTION TO DENY

Personally and as ) PETITION

City Judge of )

WHITEFISH )

CITY COURT, )

Respondents. )

)

Come now Petitioners Karen Sparks and Jerry O’ Neil, who

both reply to Respondents briefs and motion to deny the petition

as follows:

1 STANDING OF PETITIONER KAREN SPARKS

As the injured party and as a party whose Constitutionally

protected right to receive due process in the courts has been

Response. Sparks v. Johnson, MT Sup Crt App. pg 69

violated, Karen Sparks has standing to be a petitioner in this

case.

Il. STANDING OF PETITIONER JERRY O’ NEIL

The standing of Petitioner O’ Neil in this case rests upon the

premise that Karen Sparks has the right to appear and act in a

court of limited jurisdiction by attorney, with an attorney of her

choice. If“any person” includes Jerry O’ Neil then, besides being

Karen Sparks’ night to appear by him, it is also O’ Neil’s right to

go to court to protect this relationship. What sort of advocate

would he be if he did not protest when the Court denied justice

to those that were depending on him?

Although O’Neil is not a licensed attorney, he takes

seriously the right to have counsel of one’s choosing. Some of

his “clients” and/or friends include: James Blakeley; Clark

Albertson; Ron Wollak; Katherine Wolfe; Gerald Heffner and

D.J. Heffner. All of these people have been faced with serious

hardship due to their inability to retain competent counsel when

they were without funds. It is O’Neil’s belief that far to many

litigants are shorted on their ration of justice in the State of

Montana. They are being denied any type of knowledgeable help

when appearing in court.

O’Neil has actively sought to protect the public’s right to

receive justice from their courts. As part of his quest to secure

justice for others O’ Neil has been fined $500.00 for typing and

mailing papers for a man who was behind bars. He has been

required to pass the Blackfeet Tribal bar examination. In order

to obtain meaningful access to the courts for some of the

unrepresented citizens of Montana, O’Neil has been active in

Americans for Legal Reform (HALT) and is currently the

president of VOCAL of Montana (Victims Of Constitutionally

Abusive Laws). In order to demonstrate to the public that their

access to the courts is not subject to democratic controls,

O’Neil ran for the position of Justice on the Montana Supreme

Response. Sparks v. Johnson, MT Sup Crt. App. pg 70

Court. O’Neil considers his activism to be of both a religious

and a political nature.

It isn’t right to forbid Petitioner Sparks the help of O’Neil

because of his religious or political practices. The United States

Supreme Court stated In Re Edna Smith Primus, 436 U.S. 412,

that:

1. Collective activity undertaken to obtain

meaningful access to the courts is a fundamental right

within the protection of the First Amendment.

2. Broad prophylactic rules in the area of free

expression are suspect and precision of regulation

must be the touchstone in an area so closely touching

our most precious freedoms.

3. Disciplinary rules should not be utilized to

obstruct the distribution of legal services to all those in

need of them.

4. Where political expression or association is

at issue, (the Supreme Court) has not tolerated the

degree of imprecision that often characterizes

government regulations of the conduct of commercial

affairs. - - - (T)hat the State may proscribe in person

solicitation for pecuniary gain under circumstances

likely to result in adverse consequences, cannot be

applied to appellant’s activity on behalf (of an

organization engaging in litigation involving substantial

civil liberties questions as a vehicle for effective

political expression and association, as well as a means

of communicating useful information to the public).”

O’Neil’s seeks to obtain meaningful access to the courts for

those that because of various circumstances including lack of

funds are unable to adequately represent themselves or obtain

licensed attorneys. These activities are fundamental rights for

both O’ Neil and for those that seek his help. These rights have

Response, Sparks v. Johnson, MT Sup Crt. App. pg 71

the protection of the First Amendment.

The Court should narrowly construe its rules regulating and

restricting commercial activities in order not to obstruct the

distribution of legal services by O'Neil and by others of ability

to all those in need of them. Several of the cases cited by

Respondents were aimed at curbing commercial activities rather

than curbing the public’s access to the courts. These cases

regarding commercial activities include: State v. Merchants’

Credit Service, 66 P.2d 337 (Mont. 1937) (held that the work

“person” in section 9629, R.C.M. 1935 (a statutory precursor

to section 25-31-601, MCA), does not include corporations;

State ex rel. Frieson v. Isner, 285 $.E.2d 641 (W.Va. 1981) (the

primary issue was whether a credit agency could appear through

one of its officers or employees; Bump v. Barnett, 16 N.W.2d

579 (lowa 1944) (ruled that a manager of a collection agency

could not engage in the practice regularly of representing clients

in justice courts. In none of these was the issue raised of

whether a defendant, in a criminal action in justice or city court,

that was unable to retain counsel, whom the Court refused to

appoint counsel for, was entitled to choose the best available

person to defend her.

(iL. NATURE OF THE CASE

Respondents Brad Johnson and the Attorney General for

the State of Montana both ignore the most important issue

presented in this case. This issue is:

IS ADEFENDANT BROUGHT BEFORE A COURT

OF LIMITED JURISDICTION ON A CRIMINAL

MATTER ENTITLED TO THE ATTORNEY OF

HER CHOICE AS SPELLED OUT BY LAW?

Respondents go to great length to state their views of why

O’Neil should not be allowed to represent parties in courts of

Response, Sparks v. Johnson, MT Sup Crt. App. pg 72

limited jurisdiction. But they entirely miss the main point of the

whole proceeding. This point is:

\

IS KAREN SPARKS, A. DEFENDANT

BROUGHT BEFORE A COURT OF LIMITED

JURISDICTION ON A CRIMINAL MATTER

ENTITLED TO CHOOSE (JERRY O’NEIL) TO

APPEAR AND ACT FOR HER AS ATTORNEY.

Section 25-3 1-601 states:

Parties in justice’s court may appear and act in

person or by attorney; and any person, except the

constable by whom the summons or jury process was

served, may act as attorney;

Karen Sparks is a party to litigation in the Whitefish City

Court. Under § 25-30-101, MCA, the rules of procedure for

justice court also apply to the city courts. Under § 37-61-210

the right to appear by someone that is not a licensed attorney

applies to city courts as well as justice courts.

Recently this Supreme Court of Montana ruled in cause

number 91-84 that, as a defendant in a criminal action, D.J.

Heffner was entitled to rely on § 25-31-601. Similarly, Karen

Sparks is entitled to the protections afforded to parties under

§ 25-3 1-601 when she is a defendant in a criminal matter. It is

her right to appear and act by “attorney”. Section 25-31-601

empowers her to have the person of her choice appear for her

in courts of limited jurisdiction. Under § 25-31-601, who may

be included in her choice of “attorney” is defined as “any person

except the constable by whom the summons or jury process was

served”. The statute is unequivocal that Karen’s right to counsel

of her choice includes the right to chose “any person”: As an

exercise of her nght to counsel of her choice Karen chose Jerry

O'Neil. It doesn’t appear she has anyone else available to her.

This Court should now direct the Whitefish City Court to honor

Response, Sparks v. Johnson, MT Sup Crt. App. pg 73

that choice.

IV. THE CURRENT SYSTEM FAILED

TO PROTECT PETITIONER SPARKS

When Karen Sparks was brought before the Whitefish City

Court on the charge of misdemeanor theft the consequences to

her were likely to be of major significance. Although it wasn’t

a jailable offense which would trigger her right to have a court

appointed attorney, it still had the ability to deprive her of a

major property interest. Karen works for a bank and if found

guilty of theft would lose her job. Just being charged with it put

her on personal leave without pay. By the time she went to

O’Neil for help, she had not received her salary for over thirty

days. She was broke.

Judge Johnson refused to appoint an attorney for Karen

because she stated on her /inancial Affidavit and Request for

Court Appointed Counsel that she had personal property with

a collective value of $15,000.00. But when looking at this

request two things are apparent. One, the sum of the items listed

only totals $10,550.00.

Emerson TV $600.00

Microwave $750.00

Living room furniture $1,000.00

dining room set $1,200.00

waterbed $1,400.00

antique buffet $2,000.00

washer, dryer $1,200.00

stove $250.00

refrigerator $500.00

woodstove $1,500.00

humidifier $150.00

Response, Sparks v. Johnson, MT Sup Crt. App. pg 74

Total , $10,550.00

Two, all the items listed are of such a nature that Karen

would suffer serious detriment if she were forced to convert

them to cash to retain counsel. It is obvious she has never had

to pawn something in order to raise money. Also, from the

wording of the Financial Affidavit, it is doubtful she understood

that the value she should have listed is that which she would be

able to raise on a forced sale of the items. It is too bad that she

didn’t have the help of someone such as O’Neil when she was

filling out the affidavit.

In her search for an attorney everyone she approached

(prior to O’ Neil) demanded a cash retainer of at least $400.00

prior to taking the case. Most of them also quoted a rate of at

least $60.00 per hour. She would have had to raise and given at

least $1,000.00 to an attorney long before she received another

pay check from her employer. To raise this money in the time

allowed Karen would have had to pawn her household

furnishings or to sell them at auction. She would have been

lucky to receive ten cents on the dollar for them. At that rate

she would have had to pawn the stove she heated her house

with in order to hire an attorney. Would the attorney be able to

keep her pipes from freezing?

V_ THE WHITEFISH CITY COURT IS

DISCRIMINATING AGAINST KAREN SPARKS

Previously, when Larry O’ Shaughnessy was brought before

the Whitefish City Court on criminal charges, Judge Johnson

agreed to let O’Neil defend him. O’Shaughnessy had ample

financial means to retain whoever he wanted to defend him.

Because he has non-traditional belies he desired to have O’Neil

represent him in the Whitefish City Court and requested the

Honorable Brad Johnson to allow it. Judge Johnson readily

Response. Sparks v. Johnson, MT Sup Crt. App. pg 75

agreed to let O’Neil represent O’ Shaughnessy. Now this same

Judge Johnson refuses to let O’ Neil help Karen Sparks. Is the

difference between allowing O’Neil to represent O’ Shaughnessy

and refusing to allow him to represent Sparks due to O’Neil’s

having enough experience by the time of the Sparks trial that the

Court thought he might be able to do her some good, or was it

because O’ Shaughnessy had money and Sparks didn’t?

Her right to receive due process and equal protection is

being denied to Petitioner Sparks under color of law. It is a

violation of Karen’s civil rights, similar to the denial of due

process by the Virginia magistrates in Pulliam v. Allen, 104

S.Ct. 1970 (1984).

Respondents appear to be arguing that Karen would be

allowed to use O’Neil’s help if it was of an isolated or casual

basis. At what point does O’Neil’s help cease being of an

isolated or casual basis? When he is versed enough regarding

court procedure that Judge Johnson is afraid he will have to give

Sparks a fair trial? It doesn’t seem fair to allow her to have

O’Neil’s help as long as O’ Neil doesn’t know what he is doing -

but then deny it to her as soon as O’ Neil has made enough court

appearances that he knows how the procedure is supposed to

work.

VL IT WOULD IMPROVE THE STANDARD OF

JUSTICE IN MONTANA TO LET PETITIONERS

PREVAIL IN THIS CASE

The Montana Supreme Court knows that the poor are in

need of more representation in the courts and it continually

attempts to make improvements to the situation. This must be

the reason for the Montana Student Practice Rule dated July 22,

1987, (See Rule I1.A.3. of the Montana Student Practice Rule).

which allows law students at the University of Montana to

appear at the first appearance and the initial bond setting for

indigents. It is expected that a favorable ruling in this case will

Response, Sparks v. Johnson, MT Sup Crt. App. pg 76

increase the scope of student practice in Montana.

It is not contemplated that judges in Montana’s City Courts

and Justice Courts will appoint non-licensed persons to aid

defendants on jailable offenses over the defendants’ objections.

In fact, if these defendants received the services of non-licensed

persons in any way other than from their own choosing, it

would probably be a violation of their due process right to

counsel of their choice.

Montana law (25-31-601, MCA) provides a vehicle that

Karen Sparks and other defendants appearing before Montana's

courts of limited jurisdiction on non-jailable offenses can use to

receive some assistance. Hopefully this Court will leave that law

in place.

Respondents cite the Application of Montana Bar

President, supra (518 P.2d 32) to make the point that “the

practice of law is a privilege burdened with conditions.” For

these conditions, Respondents would include:

A. Protection of the public from unethical

practitioners;

B. Continuing legal education:

C. Providing for the availability of legal

services to all;

D. Promoting needed legal reform.

Petitioners agree that these are noble goals and would like

to help advance them. One of the easiest ways to advance these

goals would be to open up the courts of limited jurisdiction to

allow non-licensed legal technicians to help those in need.

It certainly would go a long way towards “providing for the

availability of legal services to all” and “promoting needed legal

reform” for his Court to allow O’Neil and others to help the

unrepresented in the city courts and justice courts of the State

of Montana In Johnson v. Avery, 393 U.S. 483, the Court ruled

that when a prisoner was unable to retain licensed counsel that

Response, Sparks v. Johnson, MT Sup Crt. App. pg 77

he was entitled to be represented by well qualified lay counsel.

Petitioner Sparks was unable to retain licensed counsel in this

case. Shouldn’t Karen Sparks and others that are unable to have

a licensed attorney represent them in city and justice courts have

equal protection as that enjoyed by convicted felons?

As for the “protection of the public from unethical

practitioners’, O’ Neil has previously made a public statement to

the effect that if he were allowed to represent people in the

state’s justice courts, that he would be willing to use that forum

to take cases against attorneys for unethical practices. This

would provide an expeditious method of resolving minor

disagreements between the public and the bar. Not being a

licensed attorney, the presence of O’ Neil in such a role would

probably be perceived by the public as evidence that unethical

practice of attorneys is not protected by any monopoly

perceived to be held by the bar association.

As for “continuing legal education”, it would help if the

present system were changed so that the Montana Board of

Continuing Legal Education would grant continuing legal

education credits to other than licensed attorneys. Maybe such

credits could apply towards the requirements mandated before

one may take the bar examination. At the present Montana

refused to allow CLE credit to those that are not licensed

attorneys.

O’Neil is a member of the Association of Family and

Conciliation Courts. As such, he attended a seminar in Portland

in 1989. Attendance at the seminar was approved for continuing

legal education credits O'Neil applied tor such credits and was

refused by the Montana Board of Continuing Lega! Education

See Exhibit A. O’Neil has also attended a seminar on January

16, 1990, presented by the National Business Institute, Inc .

titled “Administration of the Fstate in Montana” and a seminar

by the same organization relating to dissolution of marnage He

is unable to receive recognition from the Montana Board of

Continuing Legal Education that he participated in these

Response, Sparks v. johnson, MT Sup Crt App. pg 78

educational programs. If the Court is really interested in

promoting continuing legal education it certainly has the means

of providing recognition for those that participate in such

functions.

The Public Protection Committee of the Office of

Professional Standards of the State Bar of California made an

investigation regarding the provision of legal services by non-

attorneys in Califorma. On April 22, 1988, the committee

published its report with its recommendation that such services

were of value to the public and should be allowed to continue

for the benefit of the public. See Exhibit B. Such services are

also essential for the protection of the poor in Montana.

To promote the concerns put forth by Respondents,

Petitioner O’ Neil should be allowed to help those that need his

help in the justice courts and city courts of Montana.

VIL_IS IT PERMISSIBLE TO CHOOSE AN ATTORNEY

THAT IS FAMILIAR WITH THE COURT SYSTEM?

Prior to locating O'Neil, Karen Sparks was in a bad

situation. She needed an attorney. She was unable to find one

that she could retain with the money available to her. Therefore

she was forced to seck for help elsewhere. When she

approached O’Neil she was looking for someone with

experience in the court system. She didn’t want just any man off

the street or any relative. She didn’t want someone on a casual

basis. She was serious. She wanted someone with experience.

She wanted someone that had the ability to help her. It doesn’t

seem right to deny her the services of O’Neil for the very

reasons that she sought him out for.

The State maintains that section 25-31-210 MCA

authorizes a layperson to represent a party in justice and city

courts only when such appearance is incidental ta the party's

desire to appear pro se. They are ignoring the fact that section

25-31-601 states:

Response, Sparks v. Johnson, MT Sup Crt. App. pg 79

Parties in justice’s court may appear and act in

person or by attorney .. .

Section 25-31-601, MCA does not state that parties in

justice’s court may appear and act “with co-counsel of their

choice”. It is clear in that it gives parties the choice to appear

either pro se, or not wishing to do that, to appear by either a

licensed or an unlicensed attorney.

Section 25-3 1-601, M.C.A. (R.C.M. 1947, 93-6704), has

been in effect since before Montana became a state. This law

governing practice in courts of non-record has been in effect,

only slightly changed, since it was first passed by Montana’s

First Legislative Assembly which convened at Bannack,

Montana on December 12, 1864. It has never been worded in

such a way that would indicate it was meant only to provide co-

counsel for those choosing to appear pro se. When it was first

passed it was worded:

Parties in justice’s court may prosecute or defend

in person or by attorney; and any person on the

request of a party may act as attorney, except that the

constable by whom the summons or jury process was

served shall not appear or act on the trial on behalf of

either party.

This Court, under its exclusive authority to promulgate

rules relative to the practice of law under Montana’s 1972

Constitution, re-affirmed Section 25-31-601 on July 16, 1973,

when it issued its order which stated:

Under Art. VII, Sec. 3, Constitution of the State

of Montana of July 6, 1972, this Court adopts all its

rules of appellate procedure, practice and procedure

for atl other courts, admission to the bar and the

conduct of its members, those legislative acts

Response, Sparks v. Johnson, M sup Crt. App. pg 30

appearing in RCM 1947 and Montana Rules of Civil

Procedure and Montana Rules of Appellate Procedure

and rules for admission to the bar and canons of ethics

as they were in effect as of July 1, 1973 or to become

effective by legislative action by approval of the

Governor at a later date as those acts appear in the

session laws of 1973.

It probably wasn’t intentional, but by the above order the

Montana Supreme Court adopted § 25-31-601 as a protection

for litigants in justice court. Section 25-31-60! has served the

less affluent litigants in Montana’s courts of limited jurisdiction

for well over 100 years. Shouldn’t Karen Sparks be allowed its

protection when it is the only statute that will provide her with

any representation at all in this case? _~

A person’s right to be represented by counsel is a basic

right. In the Justice and City Courts of Montana this right

includes their right to have anyone of their choosing appear for

them. This right shouldn’t be denied them just because the

judicial system doesn’t want commercial corporations to appear

without a licensed attorney in any court. Defendants’, including

Defendant Sparks’, nghts to due process as stated by the United

States Supreme Court are:

A person’s nght to reasonable notice of a charge

against him, and an opportunity to be heard in his

defense - a right to his day in court - are basic in our

system of jurisprudence, and these rights include, as a

minimum, aright to examine the witnesses against him,

to offer testimony, and to be represented by counsel.”

(emphasis in the original).

In re Oliver, 333 U.S. at 273, 92 L. Ed. at 694,

quoted in Argersinger v. Hamlin, 407 U.S. 25,

32 L.Ed.2d 530

Response, Sparks v. Johnson, MT Sup Crt. App. pg 81

Therefore this Court should allow Karen Sparks to choose

Jerry O'Neil as the counsel of her choice in the City Court of

Whitefish as statutorily allowed under section 25-3 1-601, MCA.

DATED: _ Dec 2, 1991

s/ Karen Sparks

s/ Jerry O'Neil

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that today | mailed a copy of the

foregoing PETITIONERS’ RESPONSE TO RESPONDENTS’

BRIEFS AND TO THEIR MOTION TO DENY PETITION

to:

Tim Cooper

Whitefish City Attorney

c/o HEDMAN, HILEMAN & LACOSTA

433 2" St.

Whitefish, MT 59937

George Schunk

Assistant Attorney General

Justice Building

215 North Sanders

Helena, MT 59620

DATED: Dec 3, 1991

s/ Jerry O Nell

Response, Sparks v. Johnson, MT Sup Crt. App. pg 82

MONTANA BOARD OF CONTINUING LEGAL EDUCATION

November 17, 1989

Mr. Jerry O'Neil

P.O. Box 575

Kalispell, Montana 59903

Dear Mr. O'Neil:

In reply to your letter of November 10, 1989, please be

advised that the only CLE credits you can claim toward your

Montana requirement are those earned after your date of

admittance to the Bar. Since you have not been admitted to

practice law in the State of Montana, the credits referred to in

your letter would not be applicable to any CLE requirement you

may have in the future, should you become a member of the

State Bar of Montana.

[ hope this answers your inquiry. Please don’t hesitate to

contact the undersigned if you have any further questions in this

regard.

Sincerely yours,

s/ Gino Little

GERALDINE “GINO” LITTLE

MCLE Administrator

GDL/s

P.O. Box 577 ¢ Helena, MT 59624 ¢ 406-442-7660

EXHIBIT A

Response Ex re CLE, Sparks v. Johnson. MSC, Ex A Pet. App. pg 83

REPORT OF THE

PUBLIC PROTECTION COMMITTEE

Office of Professional Standards

State Bar of California

555 Franklin Street

San Franctsco, California 94102

April 22, 1988

SUMMARY

The Public Protection Committee, following extensive

investigation and analysis, has concluded that the dramatic

growth in the numbers and types of services offered by non-

lawyers to persons with law-related problems reflects society’s

response to needs not met by California lawyers. The providers

of these services are many and varied, as are the identifications

they use. In this report, we refer to them as “legal technicians.””

Because there is a demonstrated need for the types of services

that legal technicians offer, our Committee concludes that there

“Legal technician” has been used throughout this report and

in the legislation contained in it to designate a non-lawyer

who provides law-related services to members of the public.

the Committee struggled to develop a phrase which would

adequately describe these individuals and which would not be

confused with those used to identify non-lawyers who

provide services only to members of the State Bar. The term

“Jegal technician” was chosen after much discussion. The

Committee would particularly welcome comments or

suggestions concerning this designation.

Resp. Ex. re Paralegals, Sparks v. Johnson, MSC, Ex B_ Pet. App. pg 84

is a benefit to the public from their existence. At the same time,

we also conclude that there is a risk of public harm from the

uncontrolled activities of non-lawyers who provide legal

assistance and advice to the public.

It is probable that a court of law applying established standards

for what constitutes the practice of law would conclude that

many legal technicians are engaged in the unauthorized practice

of law. We have concluded, however, that “unauthorized

practice of law” is a concept no longer capable of definition or

enforcement. Moreover, specifically with respect to legal

technicians, we believe it would be unwise for the State Bar to

undertake under the guise of unauthorized practice the policing

of activities that, if injurious to the public, are essentially

consumer fraud.

We recommend that the State Bar actively support legislation

that (1) makes it unlawful for a person who is not an active

member of the State Bar to claim to be a lawyer, (2) requires

the registration of legal technicians, (3) requires legal

technicians to disclose that they are not lawyers, and (4) renders

legal technicians liable, both civilly and criminally, for

misfeasance and nonfeasance.

Resp. Ex. re Paralegals. Sparks v. Johnson, MSC. Ex B_ Pet. App. pg 85

MONTANA ELEVENTH JUDICIAL DISTRICT COURT,

FLATHEAD COUNTY

In Re the Marriage of:

ERNEST B. WILCOCK, ae

Petitioner (Respondent) 0: FS AOE)

and

MARLA M. WILCOCK, a *

Respondent (Petitioner) OF

PROCEEDINGS

Held Before the Honorable Katherine R. Curtis,

District Court Judge

Taken at Flathead County Justice Center

920 South Main Street

Kalispell, Montana 5990]

Wednesday, December 17, 1997

APPEARANCES:

EARNEST B. WILCOCK

Appearing Pro Se

PETER F. CARROLL, ESQ.

P.O. Box 2536

Kalispell, Montana 59903-2536

Appearing on behalf of the Respondent

Reported by Nancy Skurvid, RPR, Official Court Reporter

(406) 758-5664

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 86

WEDNESDAY, DECEMBER 17, 1997

THE COURT: Next is DR-97-536(B), the Wilcock

maiter.

MR. CARROLL: Your Honor, Mr. Wilcock is

downstairs, I guess, with the sheriff.

THE COURT: Oh, yeah.

MR. CARROLL: Maybe we should pass this over.

THE COURT: All right. Sounds good.

MR. CARROLL: Should | have the clerk call?

THE COURT: I don’t have a clue that anybody asked

him to come up - - or asked - - or asked them to bring him up

for this hearing, but | think he needs to be here, so maybe the

clerk can assist you in that regard.

MR. CARROLL: Okay

If]

//1 .

///

THE COURT: Mr. Carol, are we going to see Mr.

Wilcock? -

MR. CARROLL: Your Honor, I had the clerk call

down, and they said they'd bring him up.

THE COURT: Okay.

MR. CARROLL: I don’t know - - I don’t know when

they’ ll bring him up. I asked them to do so right away.

THE COURT: Okay.

MR. CARROLL: If the Court please, I can go check

and see with Cathie.

THE COURT: That would be fine. Thank you.

MR. CARROLL: He’s on his way.

THE COURT: Okay. Mr. Carroll, is there a dissolution

case pending with regard to these two parties?

MR. CARROLL: There is, Your honor.

MR. CARROLL: _I saw in your - - in Mr. Wilcock’s

Affidavit, reference to a Summons and Petition for

Dissolution of Marriage, but | don’t see any reference

in Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 87

anywhere to the cause number.

MR. CARROLL: It’s a DR-97-486(B), Your Honor.

THE COURT: And that’s with Ms. Wilcock as

Petitioner and he is the Respondent?

MR. CARROLL: That’s Correct.

Mr. O’NEIL: In the divorce, Marla is the Petitioner.

THE COURT: Good morning. Sorry for the last-minute

notice.

Okay. Thisis Cause No. DR-97-536(B), in Re the Marriage

of Ernest B. Wilcock, Petitioner, and Marla M. Wilcock,

Respondent. .

Petitioner is present, at this point representing himself.

Respondent is present with her counsel, Peter Carroll.

Mr. O’Neil, I cannot admit you to the practice of this court.

The laws of the State of Montana do not allow me to do that.

You may stay where you are, you may advise Mr. Wilcock in

whatever manner you and he deem appropriate, but he’s got to

speak for himself; okay?

I think the thing that’s set for hearing this morning is the

Respondent’s Motion to Quash the Conciliation Order issued in

DR-97-536)B). Right, Mr. Carroll?

MR. CARROLL: _ That’s correct, Your Honor. The

motion has been briefed. And I think the issues are twofold. I’ve

looked through the statutes, Your Honor, and I’m not sure that

a conciliation court has been established in this district. And,

therefore, I don’t think the Court has any jurisdiction to order

any conciliation.

Notwithstanding that, which I think is a major error, on the

plain reading of 40-3-127(3), Mrs. Wilcock assures me there is

no possibility of reconciliation, even a reasonable prospect, and

that, therefore, the conciliation is largely a delay of the issues in

the dissolution case that’s pending.

THE COURT: Okay. You may be right with regard to the

provisions of Title 40, Chapter 3 concerning the establishment

of the conciliation court.

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 88

While not being one necessarily to stand on history, we’ ve

been doing it this way for a long time. And if we’ ve been doing

it wrong, I guess we’ve been doing it wrong. But I’m

disinclined, frankly, to say to someone we the judges haven't

done what we were supposed to do, so you don’t have any

conciliation options, and thereby impose upon myself the

responsibility to follow through with a lot of the provisions of

this chapter before anybody can file a conciliation petition. So

I’m not gonna decide this on the basis of that.

I do notice, from the provisions of Section 40-3-111, that

the court needs to make a determination as to whether or not

the reconciliation of the spouses or amicable adjustment of the

controversy can probably be achieved. And I assume that it’s to

that finding required of the court that your second argument

addresses, which is, I assume - - would be Ms. Wilcock’s

testimony that it can’t - - that amicable - - or that reconciliation

of the spouses cannot be achieved.

MR. CARROLL: _ That’s correct, Your Honor. Ms.

Wilcock’s Affidavit is submitted to the Court for your review.

There are circumstances in this situation that are extenuating.

Mr. Wilcock, he has been accused ofa crime. He’s not been

convicted at all yet, but is it a serious - - of-a serious nature

involving one of the minor children in the family. But he had a

prior sex offense in the State of Utah, which Ms. Wilcock stuck

with him through that process, and she’s indicated that she’s

just at the end of the line here.

And I don’t know - - she tells me there’s no possibility of

reconciliation, and I don’t know how - - how you could put

something to the back like that.

THE COURT: Okay. The - - she also indicates in her

Affidavit, Mr. Carroll, that during the prior - - during his time

in prison on the prior offence, there was a long process of

counseling. Just one minute. I'll hear from you.

MR. CARROLL: lunderstand that was for Mr. Wilcock,

Your Honor.

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 89

THE COURT: Okay. And apparently she now feels like

there’s good chance that didn’t do any good?

MR. CARROLL: That’s what it appears.

THE COURT: Now, Mr. Wilcock, let me say something

to you, okay? Remember, you’re charged with a crime, and

remember that you have the right to remain silent about that

charge. And remember, if you choose to make statements about

that, then you’re giving up your right to remain silent, and you

could risk incriminating yourself, okay? I don’t want you to do

that. | assume you have had counsel appointed to represent you

in your criminal case?

MR. WILCOCK: Yes, ma’am.

THE COURT: And I don’t want you to at all address that

case in the absence of your appointed attorney because you may

say something that he or she would advise you not to say.

MR. WILCOCK: Yes, ma’am.

THE COURT: Okay?

MR. WILCOCK: My - - there’s two things I'd like to

address to the Court. One, I would like to - - due to the fact that

Mr. O’Neil’s not being appointed or recognized as my attorney

in this hearing, | would like to object - - officially object to this

hearing due to the fact I do not have legal counsel representing

me and I do not know the law. Therefore, | basically am not

capable of representing myself.

Also I would like to ask the Court - - I don’t know if my

wife can be called to the stand, or whatever. But one of the

things my wife has told me when she first said she was gonna

file for the divorce is that she felt that I was gonna go to prison

for the rest of my life and she could not wait for me.

Therefore, { would like to ask the Court to ask her if - - if

I’m found innocent of this charge, if there is reconsolidation

(sic) of the marriage, if she feels the marriage can be

reconsolidated (sic).

THE COURT: Okay. Fair enough. And ask her that, Mr.

Wilcock.

\

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 90

| want to just amplify a little bit on what I said with regard

to Mr. O’Neil. I’m sure he has told you he’s not a licensed

attorney.

MR. WILCOCK: Yes, ma’am.

THE COURT: Okay. The difficulty is that this court has

no way to differentiate between Mr. O’Neil, who may be

qualified to represent you even though he’s not a licensed

attorney, and Joe Blow on the street, who’s not qualified to

represent you but is likewise not a licensed attorney.

So the difficulty is that once the Court allows someone

who’s not a licensed attorney to represent someone, where do

you draw the line? And, frankly, | don’t see the line can be

drawn anywhere.

And No. 2, this Court doesn’t have the resources to do that

line drawing on a case by case basis, even if it could be done.

We would obviously have to look into the background and the

qualifications and the training and the experience of each person

who said they wanted to come in here to represent someone but

they were not a licensed attorney.

Now, that’s the reason we have licensing for attorney, is so

that some board somewhere can look at those qualifications and

say yes, you get the rubber stamp ‘cause you’ ve graduated from

law school and passed the bar exam, or no, you don’t get the

rubber stamp because you haven’t done that.

And recognize, as far as nuts and bolts are concerned, what

we do here in the courtroom - - it must be somewhat arbitrary,

but it’s a necessary evil because there’s no way that this Court

has the resources to start looking into the back-ground and the

experience, and that sort of thing, of everyone who says they

might want to represent someone else.

Frankly, I have people who are in prison in Deer Lodge

saying they want one of their fellow pnsoners to represent them.

Now what would I do about that? If I let Mr. O'Neil, who’s not

a licensed attorney, represent you, then I got to look at that guy

and say, Okay, well, what’s your experience and what’s your

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 91

qualifications, even though you’re a convicted felon can’t

represent someone.

So that’s the - - that’s the reason for my ruling with regard

to Mr. O’Neil. And it’s not said for purposes of asking you for

your comments or further argument. | just want to hopefully

understand why that has to be the way it is. Okay?

Secondly, Ms. Wilcock - -

MS. WILCOCK: Yes, ma’am.

THE COURT: --1 think Mr. Wilcock asked a legitimate

question. And that is, if you take what can only be described

from him at this point as the best case scenario and he’s

acquitted or the charges were dismissed against hem, is it still

your belief and would it be your testimony that there is no

chance that you and he can reconcile your marnage?

MS. WILCOCK: That’s right, there is no chance. Even if

he was found innocent, | still do not want to stay married.

THE COURT: Okay. Mr. Wilcock, do you want Ms.

Wilcock to testify to that - - effect?

MR. WILCOCK: I guess not. I would request, due to the

fact that | do not have counsel, then that - - | would request,

before the hearing continues, that the Court be asked to appoint

me counsel.

THE COURT: Okay. Mr. Wilcock, we don’t have

procedures in Flathead County for appointing counsel for

people in civil cases, which is what this is. Okay? Obviously, in

criminal cases we do because you’ve had a lawyer appointed to

represent you.

But in civil cases, cases concerning dissolution of your

marriage and matters related to your children, we don’t have

the resources for the taxpayers of Flathead County to pay for

another lawyer for you. Okay?

So you’re welcome to represent yourself. You’re welcome

to have Mr. O’ Neil advise you. He can prepare documents for

you. He knows what practicing law is, what practicing law isn’t,

and so, you know, he can advise you. He can’t speak for you.

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 92

But you strike me as someone who is fairly capable of speaking

for himself.

You have the right to the representation of a licensed

attorney, too, you know, and I want to give you the opportunity

to look into that if that’s what you'd like to do. Okay? But I

can’t appoint counsel to represent you. Okay?

So, Mr. Carroll, has Ms. Wilcock done anything with

regard to the order referring the conciliation to Family Court

Services?

MR. CARROLL: I don’t believe so, Your Honor.

THE COURT: Okay. Let’s leave - - let’s leave that order

stayed essentially for the time being, okay, so that Ms. Wilcock,

you don’t have to do anything in terms of contacting Family

Court Services. |

I’m gonna give Mr. Wilcock two weeks to get a lawyer and

to have that person - - and | know it’s difficult for you because

you’re in custody and, you know, I know that makes it more

difficult for you, but there’s nothing | can do about that - -

nothing I’m gonna do about it anyway. I'll give you two weeks

to get a lawyer and to have that person file something with the

Court in this file letting me know that that person now

represents you.

And if your lawyer wants to have another hearing on Ms.

Wilcock’s Motion to Quash the Conciliation Order, then I'll set

one, and I'll set it mnght away, and you can be here, and he - -

your lawyer can be here, and Mr. Carroll and Ms. Wilcock will

be here, and I’ll make a determination at that time.

If, on December 31“, I do not have in this file - - and that’s

DR-97-536(B), okay, the conciliation file. If J do not have, in

this file, a notice from a licensed attorney on your behalf that

that person represents you and that that person wants a hearing

on the Motion to Set Aside the Conciliation Order, then I’m

gonna entertain an order, which I’m sure Mr. Carroll will

prepare and submit between now and then, quashing the

Conciliation Order and letting this matter go forward. Do you

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 93

understand?

MR. WILCOCK: Yes, ma’am.

THE COURT: Any questions that I can answer for you?

MR. WILCOCK: No.

THE COURT: No? Okay. thank you.

MR. CARROLL: Thank you, Your Honor.

THE COURT: Mr. Carroll, Pll let you bring it back to my

attention at that time, if you will.

MR. CARROLL: lll do that, Your Honor.

THE COURT: Okay. Thank you.

MR. CARROLL: Thank you, Your Honor.

THE COURT: _ 1 am, for you, Mr. Wilcock, in the

dissolution case, gonna sign the order waiving your filing fees.

Is there a proposed response here? Mr. O’ Neil, do you know,

is there a response here?

Mr. O’NEIL: — 1 don’t know. I think he moved for

reconciliation rather than - - no, wait, there is - -

THE COURT: Answer. I see the Answer. Okay.

Mr. O’NEIL: 1 don’t know if we filed a motion to the

response yet, Your Honor.

THE COURT: It hasn’t been filed yet because I haven’t

waived the filing fees yet. I’m gonna go ahead and waive the

filing fees.

I’m going to allow the Answer - - I’m gonna allow all of

these documents that are ready to be filed to be filed. And by

that what I mean is, there’s a decree here that obviously is not

ready to be filed ‘cause it has to be signed. And a parenting

plan, it wouldn’t be filed. But all of those will be placed in the

file, and the ones that can be filed will be filed.

But I’m going to sign the order denying Respondent’s

request to be represented by you, Mr. O’Neil. So that in the

future, documents that are prepared for filing need to be in Mr.

Wilcock’s name. You’re welcome to be there with him at any

court hearings, sit with him, advise him however you choose.

Does that seem confusing enough?

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 94

MR. CARROLL: I’mnot sure what to do in this situation,

Your Honor. | don’t think anybody’s given us good guidance on

it.

THE COURT: I know. Ll agree. [ know Mr. Wilcock finds

himself in a tough spot, but we’ll deal with it as best we can.

Okay. Thank you.

(Whereupon, the proceedings were concluded at 9:27 a.m.)

CERTIFICATE OF COURT REPORTER

STATE OF MONTANA )

$$

County of Flathead )

1, NANCY J. SKURVID, Registered Professional Reporter and

Notary Public duly qualified in and for the State of Montana,

residing in Kalispell, Montana, do hereby certify.

That | was duly authorized to and did report the testimony

and evidence in the above-entitled cause.

I further certify that the foregoing pages of this transcript

represent a true and accurate transcription of my original

stenographic notes

IN WITNESS WHEREOF, I have hereunto set my hand

this 11 day of February, 1998.

s/_ Nancy J. Skurvid, RPR

Nancy J. Skurvid, RPR

Official Court Reporter

Residing in Kalispell, Montana

In Re Marriage of Wilcock, Transcript of Proceedings Pet. App. pg 95

Jerry O'Neil, Advocate & Counselor

Licensed in Blackfeet & CS&K Tribal Courts

202 Helena Flats Road

Kalispell, Montana 59901-2429

406-752-8903

Advocate for Respondent

MONTANA ELEVENTH JUDICIAL DISTRICT COURT,

FLATHEAD COUNTY

UPON THE PETITION OF: Cause No.

ERNEST BRENT WILCOCK, DR-97-536(B)

Petitioner, BRIEF ON

and MOTION

REGARDING

MARLA MAUDE WILCOCK, REPRESENT-

Respondent. ATION

1. Ernest B. Wilcock is currently incarcerated in the

Montana State Prison, having been sentenced to serve 50 years

on May 17, 1998.

2. After Mr. Wilcock was arrested and confined to jail,

his wife, Petitioner Marla M. Wilcock, filed a petition for

dissolution of the parties marriage.

3. Respondent is unversed in legal matters and has

various restrictions upon the services he needs the use of in

order to properly represent himself in this cause.

4. Respondent previously attempted to contact by phone

over one-half of the attorneys listed in the Kalispell telephone

books that advertise they practice family law. Because

In Re Wilcock, Brief on Motion. re Representa

This text is long and has been trimmed here. Open the source document for the complete record.