Opinion
PR 21-0100
12-21-2021
IN THE MATTER OF JAMES GARDNER, An Attorney at Law Respondent.
ORDER
On March 1, 2021, the Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint against Montana attorney James Gardner, This complaint may be reviewed by any interested person in the office of the Clerk of this Court. A hearing before an Adjudicatory Panel of the Commission on Practice occurred on October 27, 2021, after which the Commission issued its Findings of Fact, Conclusions of Law, and Recommendation which is now before this Court. Gardner has objected to the Commission's determination and ODC has filed a response to Gardner's objections.
The ODC alleged three counts of misconduct arising out of Gardner's interference with the law enforcement investigation of a single-vehicle crash of a motor vehicle operated by Destiny Freiburg on July 21, 2019. Freiberg had two minors in the vehicle at the time of the crash, including the infant child of Gardner and her. Montana Highway Patrol Trooper Griffin Sutherland responded to the scene. Once he began his investigation, he suspected alcohol was a factor in the crash. He attempted to contact the father of each child and Gardner responded to the scene to take custody of the children.
Because minors were involved in a suspected alcohol-related crash, Trooper Sutherland considered this a potential felony investigation. Typically in such instances, if the investigation resulted in an arrest, the suspect would be taken into custody and booked on the felony charge(s), to appear in Justice Court on Monday morning. However, in this instance, Gardner pressed Sutherland to release Freiburg that night. Gardner asserted that the infant needed to nurse and would not take a bottle. When Sutherland expressed reluctance, Gardner insisted that the Trooper contact the on-call Deputy County Attorney for Lewis and Clark County.
Although Sutherland was skeptical because he had witnessed Freiburg attempting to give the infant a bottle when he had first arrived on scene, he ultimately facilitated a phone conversation between Gardner and Deputy County Attorney Josh Nemeth. During the call, Gardner informed Nemeth that his only concern was the infant's well-being and he assured Nemeth that he would not interfere with the collection of evidence. Nemeth reluctantly agreed to have Freiburg charged only with a misdemeanor that night, with the understanding that a felony charge would be forthcoming.
After Freiburg refused to provide a breath or blood sample, Sutherland obtained a telephonic search warrant for a blood draw. He then transported Freiburg to the Lewis and Clark County Detention Center, where she was placed in the back of an ambulance for the blood draw. Gardner, with the children in his vehicle, followed Sutherland to the Detention Center.
At the Detention Center, Gardner knocked on the door of the ambulance. When someone opened it, Gardner stated that he would be representing Freiburg. Sutherland presented Gardner with the search warrant for the blood draw. Gardner glanced at the warrant and then advised Freiburg not to provide a blood sample. Freiburg, who Sutherland found to be cooperating with the warrant up to that point, then refused to provide a blood sample. Although Sutherland advised both Freiburg and Gardner that she had no choice but to comply with the warrant, she continued to refuse to comply on Gardner's advice.
Sutherland then requested that the Detention Center provide a restraint chair. Sutherland testified that it took 15 to 20 minutes for Detention Center staff to obtain the chair, marshal sufficient staff to perform a restrained blood draw, and transport the chair to the ambulance. After Freiburg was placed in the chair, she agreed not to resist the blood draw and a blood sample was obtained. Because of her refusal to comply with the search warrant, Freiburg was charged with Obstructing a Peace Officer.
Gardner was also charged with, and ultimately convicted of, Obstructing a Peace Officer because of his conduct during Trooper Sutherland's investigation. Gardner received a six-month deferred imposition of sentence, conditioned on payment of a $500 fine and 20 hours of community service. He was also responsible for jury costs. Gardner appealed his conviction to the Lewis and Clark County District Court, which affirmed his conviction.
Freiburg was charged with felony criminal endangerment and several misdemeanor offenses in Lewis and Clark County Justice Court on August 1, 2019. Freiburg was later charged by Information, transferring the case to Lewis and Clark County District Court.
On August 20, 2019, Gardner filed a Petition for Appeal of Suspension of Driver's License on behalf of Freiburg in the Lewis and Clark County District Court. In that petition, Gardner asserted that the .DUI charge against Freiburg had been dismissed in Justice Court. Although that representation was true, Gardner failed to further indicate that the charge was dismissed because it had been superseded by a felony charge via Information, and the dismissal was merely the routine way of handling a transfer from Justice Court to District Court when a felony charge was substituted for a misdemeanor. The State moved to disqualify Gardner as Freiburg's counsel and the District Court granted the State's motion.
Pursuant to a plea agreement, Freiburg, represented by appointed counsel, ultimately pled guilty to felony criminal endangerment, misdemeanor DUI per se, and misdemeanor obstructing a police officer.
After hearing testimony on October 27, 2021, the Commission entertained argument from ODC and Gardner to determine the appropriate form of discipline to recommend to this Court if the Commission sustained ODC's charges. ODC argued for a one-month suspension and imposition of costs, noting that it would generally recommend an indefinite suspension for such violations, but in this case the infant's need for nourishment provided a mitigating circumstance. Gardner argued that he did not violate any Rules of Professional Conduct and asserted that the matter should be dismissed.
Based upon its factual findings, the Commission concluded Gardner had violated Mont. R. Pro. Cond. 3.4(a) and (c), Fairness to Opposing Party and Counsel. The Commission determined that, by advising Freiburg not to comply with a court-ordered search warrant, Gardner unlawfully obstructed the State's access to evidence and counseled Freiburg to obstruct the State's access to evidence.
The Commission further concluded that Gardner had violated Mont. R. Pro. Cond. 8.4(b), Criminal Acts, because he inappropriately interfered with a police investigation and committed the misdemeanor criminal offense of Obstructing a Police Officer.
Although ODC had also charged Gardner with violating Mont. R. Pro. Cond. 1.7(a)(2), Conflict of Interest, Current Clients, the Commission determined that Gardner exhibited bad judgment by becoming involved with the criminal investigation of Freiburg and by representing her at the scene, but that his actions did not constitute a conflict of interest since Freiburg's and Gardner's interests were not inconsistent and any conflict between their interests was not material.
Based on its findings and conclusions, the Commission recommended that Gardner be suspended from the practice of law for a period of 30 days and that he be assessed the costs and expenses of ODC's prosecution of this matter. In providing its rationale for the recommendation, the Commission explained that it found Gardner's failure to advise the District Court that Freiburg was facing a felony charge after the misdemeanor charge was dismissed to be not merely an oversight or lack of candor but a deliberate deception. It also opined that Gardner's decision to advise Freiburg to disregard a court order was significant as the proper method to challenge a court order is via an appeal or challenge in court and Gardner could have preserved his challenge to the blood draw while advising Freiburg of her obligation to obey the warrant. The Commission further expressed concern that Gardner demonstrated no understanding of how his conduct in this matter conflicted with his ethical obligations.
This Court reviews de novo the Commission's findings of fact, conclusions of law, and recommendations. In re Neuhardt, 2014 MT 88, ¶ 16, 374 Mont. 379, 321 P.3d 833 (citation omitted). This duty includes weighing the evidence upon, which the Commission's findings rest. In re Potts, 2007 MT 81, ¶ 32, 336 Mont. 517, 158 P.3d 418.
In a disciplinary matter, the burden of proof lies with the ODC, which must prove its allegations by clear and convincing evidence. MRLDE 22(B)-(C). We have defined clear and convincing evidence as "a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof." Harding v. Savoy, 2004 MT 280, ¶ 51, 323 Mont. 261, 100 P.3d 976 (citation omitted).
In his Objections to Findings of Fact, Conclusions of Law and Recommendation, Gardner challenges two of the Commission's findings and further objects to the recommended discipline. First, Gardner challenges the Commission's assertion that Gardner interfered with the court-ordered blood draw because he advised Freiburg not to provide a blood sample after he was presented with the search warrant. Gardner asserts that from his experience in handling "hundreds of DUI cases," he "knew the blood draw would happen but wanted it to be done involuntarily." Gardner argues that it is incorrect that he interfered with the blood draw because he knew that his advising Freiburg not to provide a blood sample would not actually affect Trooper Sutherland's ability to obtain a blood sample.
Gardner's argument regarding this finding is unpersuasive. Even if Gardner accurately predicted that the situation would ultimately end in Trooper Sutherland obtaining a blood sample, Gardner's advice caused Freiburg to decide not to cooperate, necessitating the procurement of a restraint chair and delaying and prolonging Sutherland's investigation. And as the Commission pointed out in its rationale, Gardner could have challenged the warrant via the judicial process rather than advising his client to disobey a court order.
Next, Gardner objects to the Commission's finding that Gardner had deliberately deceived the District Court in pursuing reinstatement of Freiburg's driver's license when he advised the court that the Justice Court had dismissed the misdemeanor DUI charge but omitted the fact that the dismissal occurred because the charge had been transferred to the District Court as a felony DUI charge. Gardner asserts that his statement regarding the dismissal of the misdemeanor DUI charge was true and argues that the Commission irrationally twisted his true statement into a deception. We disagree with Gardner's objection. While Gardner's assertion that the misdemeanor DUI charge had been dismissed was technically true, that assertion was also only half the story-a fact that Gardner does not deny. Gardner may not have spoken a lie, but he lied by omission, and this Court is troubled by the fact that Gardner apparently sees no error in this action.
Finally, Gardner argues that the recommended discipline is "too severe." ODC responds that it carefully reviewed the Annotated Standards for Imposing Lawyer Sanctions prior to recommending discipline in this matter. ODC argues that under those standards, it would have been justified in recommending disbarment, but found that a lesser sanction was appropriate in this case.
We have thoroughly reviewed the record in this matter and given due consideration to the Commission's Recommendation, Gardner's objections and ODC's response to those objections. Having done so, we agree with the Commission's findings of fact, conclusions of law and recommendations.
Based upon the foregoing, IT IS HEREBY ORDERED:
1. The Commission's Findings of Fact, Conclusions of Law, and Recommendation are ACCEPTED and ADOPTED.
2. James Gardner is suspended from the practice of law in Montana for thirty days, effective thirty days from the date of this Order. Gardner is directed to give notice of his suspension to all clients he represents in pending matters, any co-counsel in pending matters, all opposing counsel and self-represented opposing parties in pending matters, and
all courts in which he appears as counsel of record in pending matters, as required b) Rule 30 of the Montana Rules for Lawyer Disciplinary Enforcement.
3. Gardner shall pay the costs of these proceedings, subject to the provisions of MRLDE 9(A)(8) allowing him to file objections to the statement of costs.
The Clerk of this Court is directed to serve a copy of this Order of Discipline upon James Gardner, and to provide copies to Disciplinary Counsel, the Office Administrator for the Commission on Practice, the Clerks of all the District Courts of the State of Montana, each District Court Judge in the State of Montana, the Clerk of the Federal District Court for the District of Montana, the Clerk of the Circuit Court of Appeals of the Ninth Circuit, and the Executive Director of the State Bar of Montana.