Montana: Office of Disciplinary Counsel files complaint against Lawyer for violations of the Montana Rules of Professional Conduct

In matter of Olson, 2009 MT 455; 354 Mont. 358; 2009 Mont. LEXIS 693, The Office of Disciplinary Counsel filed a complaint against Eric Olson alleging violations of Rule 3.4 and Rules 8.4(b)-(d) of the Montana Rules of Professional Conduct.
Olson undertook the representation of Kelly Mortenson who was charged with 38 counts of sexual abuse of children. Olson and Kohm, a retired detective from the Cascade County Sheriff’s Office that Olson retained, collected items from the Mortenson apartment they thought would be helpful in formulating a defense. There were 13 photographs among other items taken from the apartment. Olson and Kohm testified they did not believe the photographs were child pornography. Olson testified also that he did not think the items were contraband.
Kohm was concerned about if they could be subject to criminal culpability for possessing the photos. Olson got advice and counsel from Tony Gallagher, the Chief Federal Defender in the District of Montana who had extensive experience in handling child pornography cases. Olson was advised to seek a protective order in case someone thought the items were child pornography. Olson got the order.
Olson was hired as the state training coordinator for the Office of the State Public Defender. He did not go forward with the Mortenson defense.
Olson did not turn over any of the evidence he seized to law enforcement officials or tell them of the existence of the evidence prior to leaving. Mortenson’s case was assigned to Carl Jenson. Jensen learned of the evidence and ordered Kohm to turn over the evidence to County Attorney Light. Kohm objected but did turn it over. Light had no intention of prosecuting Olson for possessing the evidence.
Olson contested the charges. The Commission on Practice concluded that the Office of Disciplinary Counsel (ODC), failed to prove by clear and convincing evidence that Olson violated the Montana Rules of Professional Conduct. The Commission recommended that the ODC’s complaint be dismissed with prejudice.
The ODC objected to the Findings of Fact, Conclusions of Law, and Recommendation of the Commission. The Supreme Court of Montana denied the ODC’s objections and adopted the Commission’s recommendation to dismiss the complaint with prejudice.
ODC’s complaint alleged Olson violated MRPC 3.4 –Fairness to opposing counsel, when he unlawfully obstructed another party’s access to evidence and/or concealed documents or other materials having potential evidentiary value.” The complaint also alleges Olson of violating MRPC 8.4(b) the “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” and “tampering with or fabricating physical evidence in § 45-7-207, MCA.
The ODC claims the Commission failed to decide if the photographs were child pornography. They just determined that Olson had a good faith belief they were not child pornography or contraband. The ODC states that Olson had an ethical obligation to turn over the contraband to authorities and his good faith belief cannot defeat this obligation.
The Supreme Court stated that the main question is not if the photographs were pornographic but if the ODC demonstrated clear and convincing evidence that Olson violated MRPC 3.4(a) and 8.4(b)-(d). The Commission concluded that Olson did all he could to comply with Rule 3.4. He preserved the evidence in a way that was safe, and got a protective order for its possession. Rule 8.4(b) there is no evidence that Olson intended to tamper with evidence. Rule 8.4(c), the ODC failed to demonstrate that Olson’s conduct was dishonest or deceitful. Rule 8.4(d) the ODC failed to prove by clear and convincing evidence that Olson’s conduct met the standard of some nexus between Olson’s conduct and an adverse effect on the administration of justice.
The recommendation of the Commission is adopted and ordered that the complaint against Olson is dismissed with prejudice.