Opinion
22-072
01-26-2023
IN THE MATTER OF JOSEPH P. HOWARD, An Attorney at Law, Respondent.
Pamela D. Bucy Chief Disciplinary Counsel Office of Disciplinary Counsel
Pamela D. Bucy Chief Disciplinary Counsel
Office of Disciplinary Counsel
COMPLAINT
Rules 1.3,1.16(a)(1), 1.16(b)(7), 3.2, and 8.4(d), MRPC
By leave of the Commission on Practice granted on January 12,2023, the Office of Disciplinary Counsel for the State of Montana (ODC), hereby charges Joseph P. Howard with professional misconduct as follows:
General Allegations
1. Joseph P. Howard, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 2004, at which time he took the oath required for admission, wherein he agreed to abide by the Rules of Professional Conduct, the Disciplinaiy Rules adopted by the Supreme Court, and the highest standards of honesty, justice and morality, including but not limited to, those outlined in parts 3 and 4 of Chapter 61, Title 37, Montana Code Annotated.
2. The Montana Supreme Court has approved and adopted the Montana Rules of Professional Conduct (MRPC), governing the ethical conduct of attorneys licensed to practice in the State of Montana, which Rules were in effect at all times mentioned in this Complaint.
3. Respondent came to the attention of ODC after the Montana Supreme Court referenced potential ethics violations committed by Respondent in its Opinion granting a criminal defendant, C.W., another opportunity to submit a Petition for Post-Conviction Relief (PCR). See State v. Wagner, 2021 MT 50N.
4. Before the Eighteenth Judicial District Court, C.W. was convicted in a second jury trial of attempted deliberate homicide with a weapon. After the second conviction was upheld on appeal, C.W. filed a pro se 75-page PCR Petition on April 24, 2014, and sought counsel. The District Court appointed counsel and ordered them to request a scheduling conference and a hearing after the close of briefing.
Count One
5. ODC realleges and incorporates paragraphs 1 through 4 of the General Allegations as if fully restated in this Count One.
6. On August 1, 2014, Respondent filed a Notice of Appearance and soon thereafter, on August 6, filed an Unopposed Motion to Vacate Briefing Schedule. Respondent explained he was a "solo practitioner laboring under a significant caseload" and the need to review C.W.'s extensive file before filing an amended petition.
7. The District Court granted the motion, vacated the briefing schedule and ordered, "Petitioner shall request a scheduling and/or status conference to establish a new scheduling order once counsel has completed his review of Petitioner's file."
8. Respondent failed to file an Amended Petition or any other documents for over four years.
9. On November 16, 2018, the District Court, now with a new judge, entered a Notice for Failure to Prosecute citing §25-1-104, MCA, (providing that a court may dismiss a case inactive for over two years after a 60-day notice) and stating that "[u]nless a pleading or other document is filed within sixty days of the date of this Order, this matter shall be dismissed".
10. On January 14,2019, fifty-nine days later, Respondent filed another Notice with the District Court where he again reiterated his "busy" schedule but stated he anticipated filing C.W.'s Amended Petition by June 1, 2019. Finally, on May 31, 2019, nearly five (5) years after his initial appearance, Respondent filed a lengthy Amended Petition and supporting brief. The State moved to dismiss the Amended Petition due to "inexcusable delay".
11. On October 30, 2019, the District Court granted the State's motion and dismissed the proceeding and specifically addressed Respondent's claim of heavy workload: "he is busy, the Court is busy. The Gallatin County Attorney's Office is busy." The District Court faulted Respondent for his lack of "candor", his failure to report back to the District Court in a timely fashion or take responsibility for the delay, and because he "did not request additional time, he simply took" it.
12. C.W. appealed the District Court's decision in December 2019 and additional litigation ensued. Ultimately, the Montana Supreme Court determined the delays before the District Court were the fault of the Respondent, not C.W. The Supreme Court also ruled the dismissal of C. W.'s PCR Petition was an unfair penalty to him for the Respondent's shoddy performance.
13. Respondent had a responsibility to C.W. and to the administration of justice (i.e. the courts, the county attorney, etc.) to diligently pursue the PCR matter. By Respondent taking over four years to file C.W.'s Amended Petition, constitutes violations of Rules 1.3, 3.2, and 8.4(d), MRPC.
Count Two
14. ODC realleges and incorporates paragraphs 1 through 4 of the General Allegations, and paragraphs 8 through 13, as if fully restated in this Count Two.
15. Once Respondent discovered his workload would not afford him the time to diligently pursue C.W.'s PCR claim, and that as a result of the same, it would potentially cost C.W. the opportunity to challenge the conviction underlying his hefty prison sentence, Respondent had an obligation to withdraw.
16. By his conduct as outlined above, Respondent violated Rules 1.16(a)(1) and 1.16(b)(7), MRPC. WHEREFORE, the Office of Disciplinary Counsel prays:
1. That a Citation be issued to the Respondent, to which shall be attached a copy of the complaint, requiring Respondent, within twenty-one (21) days after service thereof, to file a written answer to the complaint;
2. That a formal hearing be had on the allegations of this complaint before an Adjudicatory Panel of the Commission;
3. That the Adjudicatory Panel of the Commission make a report of its findings and recommendations after a formal hearing to the Montana Supreme Court, and, in the event the Adjudicatory Panel finds the facts warrant disciplinary action and recommends discipline, that the Commission also recommend the nature and extent of appropriate disciplinary action, including an award of costs and expenses incurred in investigating and prosecuting this matter; and, // //
4. For such other and further relief as deemed necessary and proper.