Opinion
PR 21-0354
08-02-2022
IN THE MATTER OF: JAMES T. McCORMACK, An Attorney at Law, Respondent.
ORDER
On July 21, 2021, the Office of Disciplinary Counsel (ODC) petitioned this Court for a determination as to whether Montana attorney James T. McCormack's ability to practice law was affected by his conviction for the criminal offense of felony criminal child endangerment in the Eleventh Judicial District Court. Flathead County, Cause No. DC 19-179. ODC alleged that McCormack had pled guilty to the offense on March 11.2020, and the District Court imposed a two-year deferred sentence subject to certain terms and conditions of probation on September 18, 2020. However, the judgment was not reduced to writing until March 10, 2021, due to a clerical error. ODC further requested that, if this Court determined the conviction affected McCormack's ability to practice law, it would immediately suspend him from the practice of law pending final disposition of a disciplinary proceeding pursuant to Montana Rules for Lawyer Disciplinary Enforcement (MRLDE) 23B.
On August 3, 2021, we issued an Order in which we concluded that McCormack's felony conviction affects his ability to practice law'. Noting that it has been our practice to invoke interim suspension under MRLDE 23B when a lawyer has been convicted of a felony offense, we ordered McCormack's interim suspension; however, we held the suspension in abeyance and granted McCormack seven days in which to file a statement or pleading demonstrating good cause, if any. to set aside or modify the interim suspension pending disciplinary proceedings.
On August 5, 2021, ODC filed its formal disciplinary complaint against McCormack. The Complaint alleged'that: under MRLDE 8A(3), conduct which results in conviction of a criminal offense is a ground for discipline; under Mont. R. Pro. Cond. 8.4(b), it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and under MRLDE 23 C, the sole issue to be determined in disciplinary proceedings shall be the extent of discipline imposed. The Complaint further requested that a citation issue to McCormack, with a copy of the Complaint, requiring him to respond with a written answer within 21 days of service.
On August 17, 2021, we placed McCormack on interim suspension, having received no response from him opposing the interim suspension.
On September 9, 2021, McCormack filed his Answer to Complaint. He denied that he pled guilty to felony criminal child endangerment on March 11, 2020. He admitted that the District Court imposed a two-year deferred sentence subject to certain terms and conditions of probation, but hedenied that the judgment was reduced to writing on March 10, 2021. As to all remaining allegations, McCormack asserted he did not know whether they were true or not. McCormack's blanket response therefore asserted that he did not know if he was admitted to the Bar or when such admission occurred, that the Montana Rules of Professional Conduct governs the ethical conduct of attorneys licensed to practice in Montana, and other allegations which McCormack should have readily been able to admit or ascertain.
On September 13, 2021, ODC filed an Amended Complaint. ODC revised its allegation as to the charge to which McCormack pled guilty. The Amended Complaint alleged McCormack pled guilty to felony criminal endangerment on June 12, 2020-not felony criminal child endangerment on June'12, 2020. By subsequent order, the Commission on Practice (Commission) gave McCormack until October 5, 2021, to respond. McCormack did not file an answer to the Amended Complaint.
On November 22, 2021, ODC refiled the Amended Complaint with this Court. On January 7, 2022, the Clerk of the Supreme Court notified us that the Certificate of Service and Citation to Appear which had been sent via certified mail to the address on file for McCormack's law practice had been returned as "unclaimed-unable to forward." McCormack was ultimately served at his probation officer's office.
On January 10, 2022, the Commission filed an Order Entering Default because McCormack had failed to file an answer to the Amended Complaint. Because McCormack had failed to file an answer, the Commission deemed the allegations in the Amended Complaint to be admitted pursuant to MRLDE 12C(2). It assigned the matter to an Adjudicatory Panel to conduct a hearing to make findings of fact, conclusions of law, and either impose discipline within the Commission's authority or make a recommendation of discipline to this Court.
On March 28, 2022, the Commission filed Notice that it had set a hearing in this matter for April 20, 2022, at 8:30 a.m. in the Courtroom of the Montana Supreme Court in Helena.
The hearing occurred as scheduled on April 20, 2022. Pam Bucy, ODC Chief Disciplinary Counsel, appeared remotely via Zoom as did members of the Adjudicatory Panel. However, Commission staff were physically present at the Courtroom and confirmed that McCormack did not appear personally or via Zoom.
ODC argued that McCormack should be suspended indefinitely for six months and one day so that the Commission could review McCormack's rehabilitation and fitness to practice before resuming the practice of law. ODC noted that in two similar cases, attorneys were suspended for the duration of their criminal sentences; however, in those instances the attorneys were cooperative with ODC and took accountability for their actions while in this case McCormack evaded service, failed to respond, and treated ODC staff disrespectfully. ODC further advised the panel that McCormack had no previous disciplinary matters.
On June 15, 2022, the Commission filed its Findings of Fact, Conclusions of Law and Recommendation for Discipline with this Court. The Commission accepted the allegations of the Amended Complaint as true. It further found that McCormack had failed to explain the circumstances of the felony offense, he was disdainful of the disciplinary process, he was disrespectful to ODC personnel, and he attempted to avoid service of process. In its Recommendation, the Commission further noted that McCormack had demonstrated no remorse or regret and that his lack of engagement in the disciplinary process reflects disrespect for the profession that is exacerbated by the fact that he has been admitted to practice law in Montana for a relatively short time. The Commission recommended that McCormack be suspended from the practice of law for a period of not less than one year, be ordered to be in compliance with the terms of his probation in the criminal case during the period of suspension, and be assessed the costs incurred by ODC and the Commission in these proceedings.
Pursuant to MRLDE 16, McCormack was provided 30 days to respond with objections to the Commission's Findings of Fact, Conclusions of Law and Recommendation for Discipline. McCormack has not responded and this matter is ready for disposition.
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). We have thoroughly reviewed the record in this matter. We agree with the Commission that McCormack's failure to respond to the Amended Complaint results in the allegations therein being deemed admitted pursuant to MRLDE 12C(2). We further conclude the Commission correctly determined that McCormack violated MRLDE 8A(3) by engaging in conduct that resulted in the conviction of a criminal offense and Mont. R. Pro. Cond. 8.4(b) by committing professional misconduct in committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.
We agree with the Commission that McCormack's failure to engage in the disciplinary process and his lack of any expression of remorse or regret demonstrates that McCormack lacks respect for the profession. As such, he is presently not fit to practice law in this state. Based upon the foregoing, IT IS HEREBY ORDERED:
1. The COP's Findings of Fact, Conclusions of Law and Recommendation for Discipline are ACCEPTED and ADOPTED.
2. James T. McCormack is suspended from the practice of law in Montana for an indefinite period of not less than one year, effective thirty days from the date of this Order. McCormack is directed to give notice of this 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 by MRLDE 30.
3. James T. McCormack shall pay the costs of these proceedings, subject to the provisions of MRLDE 9C(4)(a) allowing him to file objections to the statement of costs.
4. James T. McCormack shall comply with the terms of his probation in Flathead County Cause No. DC 19-179 throughout this period of suspension.
The Clerk of this Court is directed to serve a copy of this Order of Discipline upon James T. McCormack personally, 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.