# Appendix — O'Neil v. Montana (No. 06-1076) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2124%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2006 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2124%3A2. Public record. Not legal advice.