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, 

Anthony Johnstone, Assistant Attorney General, Helena, Montana 

Submitted on Briefs: April 5, 2006 

 Decided: November 8, 2006 

Filed: 

__________________________________________ 

Clerk 

 

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 3

 

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)1

 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 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. 

¶2 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: 

¶4 1. Whether O’Neil’s third-party complaint against the Bar was timely filed. 

1

 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. 
 4

¶5 2. Whether the District Court erred in granting the Bar’s and the Commission’s 

Motions for Summary Judgment. 

¶6 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. 

¶10 O’Neil advertised in the Greater Flathead Valley CenturyTel 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.” 

¶11 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 
 5

be engaged in the unauthorized practice of law. The Judges asked the Commission to 

investigate O’Neil’s actions. 

¶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. 

¶13 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 
 6

investigation to determine whether O’Neil was engaged in the unauthorized practice of 

law. In his October 9, 2001 reply, O’Neil engaged in 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.” 

¶14 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. 
 7

¶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 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. I request that you remove Jerry 

O’Neil’s listing from the attorney section of the yellow pages. 

¶18 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. 
 8

¶19 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 Section of 

the State Bar of Montana. In accord with Article 1, Section 3 of our bylaws, 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 Tribal 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. 

¶21 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 
 9

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). 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. 

¶22 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. 

¶23 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 
 10

authorized to do so and permanently enjoining him from engaging in the practice of law 

“until such time as he becomes duly authorized.” 

¶24 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 

¶25 We review a district court’s decision to grant summary judgment de novo. Watson 

v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, ¶ 16, 136 P.3d 973, ¶ 16 (citing Farmers 

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(c), 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, ¶ 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. 

¶26 In addition, we review a district court’s findings of fact to determine if they are 

clearly erroneous. Watson, ¶ 17 (citing Ramsey v. Yellowstone Neurosurgical Assocs., 

2005 MT 317, ¶ 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 
 11

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. 

¶27 Whether O’Neil’s third-party complaint against the Bar was timely filed. 

¶28 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 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 thirdparty 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 if the 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). 

¶30 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 
 12

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 . . . . 

¶31 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 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 

1(a), 1(c) 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. 

¶33 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 
 13

not to pursue any Rule 14 claims and to allow O’Neil to file the third-party complaint 

against the Bar. 

¶34 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: . . . I don’t believe we need to have a special rule 

from the Court to serve that [third-party complaint]. But if we do I 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 – 

 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 is 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. 

¶35 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). 

¶36 Accordingly, we hold that the District Court erred in dismissing O’Neil’s thirdparty 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 
 14

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. 

Issue 2. 

¶37 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.”

¶39 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. 
 15

 

¶40 The judicial immunities enjoyed by the Montana Supreme Court (and, pursuant to 

M.C.U.P.L. Rule 10, by the Commission) are set forth in § 2-9-112, MCA,2

 which 

provides:

(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 interference fail 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 

¶43 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 

2

 O’Neil raised no challenge to this statute. 
 16

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. 

¶44 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. 

Cf. 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 
 17

Tribal Court and that the CS&K Tribal Court terminated O’Neil’s right to practice before 

them because of Brandborg’s representations. 

¶47 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) 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, 

¶ 13, 307 Mont. 392, ¶ 13, 37 P.3d 704, ¶ 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 ¶ 31 of this Opinion, the mission of the Bar includes, among other 

things, the obligation to foster high standards of integrity, learning, competence, public 
 18

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 

¶50 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 wellbeing 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 interfering with their discussion and 

disclosure of matters involving the preparation and strategy of their personal and legal 

matters with whom they choose.” 

¶51 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 v. 

State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364, had to argue the privacy rights of 

their patients. We disagree. 

¶52 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 
 19

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, ¶ 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, ¶¶ 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 right to obtain a lawful medical 

procedure from their chosen, licensed healthcare provider. The licensed healthcare 

providers had as 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, ¶ 58. 

¶54 This Court did not, however, hold in Armstrong that 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, ¶¶ 59-62. 
 20

¶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 II, Section 10 of the Montana Constitution was intended by the 

delegates to protect citizens from illegal private action and from legislation 

and governmental practices that interfere with the autonomy of each 

individual to make decisions in matters generally considered private. 

Armstrong, ¶ 35 (emphasis added). 

¶57 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 
 21

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. 

¶58 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. 

¶61 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 S.Ct. 2428 (2002), and United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 

2310 (1995), 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 

civil contempt against O’Neil for engaging in the unauthorized practice of law, not 

criminal contempt. 
 22

¶63 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 S.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. 

¶64 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. 

¶65 A person before a court charged with contempt is entitled 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 
 23

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, ¶ 33, 

966 P.2d 715, ¶ 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 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 right 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 a 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 might 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 
 24

imposed on a union was insufficient to be considered serious enough to trigger the right 

to trial by jury. Muniz, 422 U.S. at 477, 95 S.Ct. at 2190-91. The Supreme Court also 

suggested in International Union that imprisonment for a period of six months or less 

was not a serious penalty. International Union, 512 U.S. at 826-27, 114 S.Ct. at 2557. 

¶68 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 for a 

term not to exceed 30 days, or both. Section 3-1-520, MCA, provides that contempt to 

compel performance allows a penalty of a fine not to exceed $500 and/or confinement 

until 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. 

¶69 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 
 25

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. 

¶70 Accordingly, we hold that the District Court properly ruled that the contempt 

proceeding against O’Neil could be tried without a jury. 

Issue 4. 

¶71 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, 112 Mont. 159, 114 P.2d 1060 (1941), this Court 

stated: 

 The first question for determination is whether 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 right 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 VII, 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). 

¶73 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 
 26

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 

persons as intrust their business to an unchallenged pretender 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 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). 

¶74 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 trial 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: 
 27

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 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 for the purposes of parts 

1 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 as attorney and counselor, he is guilty of a contempt of court. 

Section 37-61-210, MCA. 

¶76 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). 

¶77 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. 
 28

State v. Allum, 2005 MT 150, ¶ 29, 327 Mont. 363, ¶ 29, 114 P.3d 233, ¶ 29 (internal 

citations and quotation marks omitted). 

¶78 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 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 caseby-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), 

cert. 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 II, 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, 
 29

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 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 S.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 
 30

 

the statute does not permit his contemplated conduct.” Yurczyk v. Yellowstone County, 

2004 MT 3, ¶ 33, 319 Mont. 169, ¶ 33, 83 P.3d 266, ¶ 343

 (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 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. 

¶83 Accordingly, we hold that §§ 37-61-201 and -210, MCA, are constitutional as 

applied by the District Court. 

Issue 5. 

¶84 Whether the District Court erred in finding that O’Neil engaged in the 

unauthorized practice of law. 

¶85 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 

3

 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.
 31

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 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. 

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.

¶87 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. 

¶88 Accordingly, we hold that the District Court did not err in finding that O’Neil 

engaged in the unauthorized practice of law. 
 32

¶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 requirement that full faith and credit be given to that 

decision as regards the practice of law in Montana’s State courts. 

¶90 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. 

¶91 Affirmed. 

 /S/ JAMES C. NELSON 
 33

We concur: 

/S/ JIM RICE 

/S/ W. WILLIAM LEAPHART 

/S/ PATRICIA COTTER 

/S/ BRIAN MORRIS