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 Chri stopher, 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, MontanaFor Amicus Curiae: The Honorable Mike McGrath, Montana Attorney General, Anthony Johnstone, Assistant Attorn ey General, Helena, Montana

Submitted on Briefs: April 5, 2006 Decided: November 8, 2006 Filed:

__________________________________________ Clerk

23 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 Fi nding Civil Cont empt and for Permanent Injunction against Jerry O’Neil (O’Neil). O’Neil filed a counterclaim against the Commission along with a third-party complain t against the State Bar of Montana (the Bar) 1 alleging defamation, tortious interference with contract and violation of his, his

customers’ and his constituents’ ri ghts to privacy. Prior to tria l, the District Court for the Eleventh Judicial District, Flathead Count y, granted the Bar’s Motion for Summary Judgment on O’Neil’s third-pa rty complaint against the Bar. The court also granted the

Commission’s Motion for Summa ry Judgment on O’Neil’s co unterclaim against the Commission, but denied the Commission’s Moti on 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 Permanen t Injunction finding O’Neil in contempt and enjoining him from practicing law. ¶2 O’Neil appeals the District Court’s judgmen t 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 a nd -210, MCA. We affirm. ¶3 We address the following issues on appeal: ¶4 1. Whether O’Neil’s third-party compla int 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’Ne il’s claim against the Bar was actually a third-party complaint and will be referred to as such through out 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, MC A, 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 schoo l; he has not sat for the Mont ana bar examination; and he has not met the Montana Supreme Court’s char acter and fitness requirements. O’Neil is not licensed to practice law in any state of th e 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 statem ents 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 Judici al District Court Judges Ted Lympus,

Katherine Curtis and Stewart Stadler wrote the Commission to complain that O’Neil may5 be engaged in the unauthori zed practice of law. The Ju dges 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 Cour t Chief Justice J. A. Turnage concerning O’Neil’s efforts to represent one of the pa rties 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 atte mpting 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 re quest of Sixteenth Judi cial District Court Judge Joe Hegel. The transcript reflected th at O’Neil assisted one of the parties in a dissolution proceeding by preparin g dissolution materials. ¶13 On May 16, 2001, Commission Chair John Connor wrote O’ Neil asking for a detailed description of the se rvices O’Neil provided and the duties that he performed on behalf of his customers. In his letter, Conno r warned O’Neil that if he was engaged in the unauthorized practice of law, he may be subject to civil co mplaint and criminal prosecution. O’Neil’s reply acknowledged Con nor’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 an6 investigation to determine wh ether 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 Co mmission had determined that there was probable cause to believe that O’Neil was engaged in the unaut horized practice of law. In his letter,

Connor directed O’Neil to cease and desist from all such activ ities. Connor further stated

that if the Commission did not receive a wri tten assurance of compliance from O’Neil, it would pursue appropriate le gal action against him. ¶15 Because O’Neil failed to provide the wr itten assurance requested, the Commission filed its Petition for Finding of Civil Contem pt and for Permanent Injunction on July 15, 2002. The Prayer for Relie f requested that O’Neil be found in civil contempt for engaging in the unauthorized practice of law a nd 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 c ounterclaim against the Commission and a third-party complaint against the Bar, alleging defamation, tortious interference with contract and violation of his, his customer s’ 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” h eading in the Yellow Pages. Brandborg explained th at O’Neil was not a licensed attorn ey with the Bar. Thomason requested a letter confirming that information and suggested that Br andborg also request

that O’Neil’s name be removed from the “Attorney” section of the Yellow Pages. Brandborg wrote the following le tter and sent a copy to O’Neil: I have noticed that Jerry O’Neil’s “Inde pendent Paralegal” advertisement is included under the attorney listing in the yellow page s. Jerry O’Neil is not an attorney. In spite of his represen tation to the contrary, Jerry O’Neil is not a member of the State Bar of Mont ana. 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 lette r in reply claiming that he was an attorney duly licensed by the Blackfeet Trib al Court and the Confederated Salish and Kootenai Tribal Court (CS&K Tribal Cour t). 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 Cour t. 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 fro m the Blackfeet Tribal Court that O’Neil was not a licensed attorney w ith 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 T homason 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 informa tion indicating that he has graduated from an ABA accredited law school, ta ken Montana’s bar examination, or been admitted to the State Bar of Mont ana 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 associ ate 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 Tr ibal Courts, it is appropriate for your business to check with them. . . . Brandborg did not convey this letter or the N ovember 15, 2000 letter to the Tribes nor did she write to either Tribe confirming th e 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 file d 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 ne cessary 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 fo r Finding of Ci vil Contempt and for Permanent Injunction against O’Neil. ¶21 The District Court subsequently dismisse d O’Neil’s third-party complaint against the Bar as untimely filed. In its November 16, 2004 Order granting the Bar’s Motion for9 Summary Judgment, the District Court concluded that the third-party complaint was filed more than 30 days after the Commission f iled 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 matte r of law because none of O’Neil’s claims against the Bar satisfied the necessary el ements 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 Pe tition for Finding of Civil Co ntempt and for Permanent Injunction against O’Neil a nd granted the Commission’s Motion for Summary Judgment as to O’Neil’s counterclaim against the Commis sion. The court ruled that there remained genuine issues as to the material facts regard ing 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 agai nst 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 be cause none of O’Neil’s claims against the Commission satisfied the necessary elemen ts 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 engagi ng in the practice of law when he is not10 authorized to do so and perm anently enjoining him from enga ging in the practice of law

“until such time as he beco mes duly authorized.” ¶24 O’Neil appeals the Judgment and Permanen t Injunction along with the District Court’s grants of summary ju dgment 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. 1 64, ¶ 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 contai ned 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 fi ndings 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 fo llowing three-part test: (1) whether the findings are supported by substantial evidence; (2) whet her the trial court has misapprehended the effect of the evidence; and (3) whether a review of the record leaves this Court with the11 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 complain t against the Bar was timely filed. ¶28 The Commission filed its Petition for Fi nding 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, 20 02. O’Neil did not file hi s counterclaim against the Commission and his third-party complaint agains t 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. Ci v. P. 14(a), which requires leave of all parties to the action for the filing of a third-pa rty complaint if the th ird-party complaint is not filed within 30 days afte r serving the original answe r. Here, O’Neil’s third-party complaint was filed more than 30 days after he filed his an swer. Nevertheless, O’Neil’s third-party complaint would be c onsidered timely if the partie s 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 countercla im against the Commission and his third-party complaint12 against the Bar were incorporat ed in his original answer filed on August 2, 2002, wherein

he stated: Respondent respectfully prays th e 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 Co mmission and the Bar are not the same entity. The Bar is a membersh ip organization unified by the Montana Supreme Court to aid the courts in maintaining and im proving 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 profe ssional interests of members of the bar . . . and to insure that the respon sibilities of the legal profession to the public are more effectively discharged. Supreme Court Order Unifying the State Ba r, No. 12616 (1974). The Commission, on the other hand, is a nine-member investigativ e committee composed of practicing lawyers and non-lawyers appointed by this Court and charged with the duty to protect the public interest by investigating comp laints 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 th ird-party complaints be cause the Bar and the

Commission are the same en tity is without merit. ¶33 O’Neil also contends that he had the Di strict Court’s express permission for the late filing rendered orally from the bench an d that the Commission and the Bar agreed13 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 re troactive 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 wh at 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 th e 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 th e parties agreed to allow O’Neil to file his third-party complaint against the Bar even th ough it was not filed within the time pres cribed by M. R. Ci v. P. 14(a). ¶36 Accordingly, we hold that the District Court erred in dismissing O’Neil’s thirdparty complaint in part because it was untimel y. Although we have determined that the District Court erred on this issue, it is not necessary to remand fo r further proceedings14 since the District Court also en tered findings of fact and conc lusions of law on the merits of O’Neil’s third-party complain t against the Bar suffi cient 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 cont ract 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 Ba r and the Commission wrongfully interfered with O’Ne il’s contracts with U.S. We st Dex and with the tribal courts and injured his ab ility to earn an income. As to the privacy claim, O’Neil alleges

that the conduct of the Bar and the Commissi on violated his, his customers’ and his constituents’ rights to individual privacy “b y interfering with their discussion and

disclosure of matters involv ing 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 agai nst the Commission are barred as the Commission has immunity from lit igation 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 th e Montana Supreme Court would enjoy if performing the same functions.15 ¶40 The judicial immunities enjoyed by the Montana Supreme Cour t (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 un its 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 es tablished 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 repr esenting 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 fo r defamation and for tortious interference and against both the Ba r 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 gr anting the Bar’s Mo tion for Summary Judgment, the District Court determined th at O’Neil’s claim of defamation against the

Bar failed as a matter of la w because it was filed more th an two years after the event triggering the claim, namely, Brandborg’s Nove mber 15, 2000 letter to U.S. West Dex. The District Court correctly cited § 27-2-204(3), MCA, whic h provides that “[t]he period

2 O’Neil raised no challenge to this statute.16 prescribed for the commencemen t of an action for libel, sla nder, 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 Ba r 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 defamati on claim did not toll until the complaint was filed, four days too late. This Court has held that neith er ignorance of the law nor the need for time to present a pro se case constitutes an adequa te 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 in terfered 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 cons ider Brandborg’s “false ” notification to the

CS&K Tribal Court that O’Neil was not licen sed to practice law before the Blackfeet17 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 a ssert a prima facie claim of tortious interference, O’Neil must show that it “i ntentionally 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 clai ms that O’Neil must show that the Bar’s acts were: (1) intentional and willful; (2) calc ulated 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 we re they committed “without justification or excuse.” Brandborg and the Ba r have a responsibility to tell th e truth regarding the status

of those admitted or not admitte d to practice law in this St ate. Moreover, Brandborg only reported what the Blackfeet Tribal Court to ld her regarding O’Ne il’s status with the Tribe, that O’Neil is a lay advo cate, 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 licens ed 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 standard s of integrity, learning, competence, public18 service and conduct on the pa rt 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 Judgme nt on this issue. Privacy ¶50 O’Neil contends that the Bar and the Commi ssion violated his, his customers’ and his constituents’ rights to privacy as guarantee d by Article II, Section 10, of the Montana Constitution, which provides: “T he right of individual priv acy is essential to the wellbeing of a free society and shall not be in fringed without the showing of a compelling

state interest.” O’Neil claims that the conduct of the Ba r and the Commission “violates his customers’ rights to individual privac y by interfering with their discussion and

disclosure of matters involv ing the preparation and strategy of their personal and legal matters with whom they choose.” ¶51 The Bar and the Commission a ssert 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 clai ms, 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. 36 1, 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 abortion19 from a healthcare provider of th eir choosing. We did so becau se of the closeness of the relationship between the women patient s 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 constitutiona lity 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 th e 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 inte rest in protecting autonomy a nd individual privacy implicit in the provider/patient rela tionship, 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 note d 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 re lationship, because he is not an attorney. Whether O’Neil’s customers reveal private personal and legal matters to him in his capac ity 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 ri ght 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 ma intain that the priv acy section of the Montana Constitution contemplat es privacy invasion by state action only. On the contrary, we stated in Armstrong that Article II, Section 10 of the Mont ana Constitution was intended by the delegates to protect citizens from illegal private action and from legislation and governmental practices that interfere with the au tonomy of each individual to make decisions in ma tters generally considered private. Armstrong , ¶ 35 (emphasis added). ¶57 Finally, we also hold that O’Neil’s own ri ght to privacy has not been violated in

this case. O’Neil’s advertisem ents in the Yellow Pages imply that he is a member of the Bar. The Bar’s clarification of his lay stat us 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 to21 the public as a licensed profe ssional 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 Summa ry Judgment on this issue.

Issue 3. ¶59 Whether the District Court abused its disc retion in denying O’ Neil a jury trial. ¶60 O’Neil maintains that the Commission soug ht 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 c ontends that he was entitled to a jury trial and that the District Court deprived him of his right to du e 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 proced ures set forth in Title 46, MC A, to ensure that criminal penalties are not imposed on some one who has not been afforded the proper protections.” ¶62 O’Neil’s contentions are withou t 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 dete rmined 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 c ourts to enforce obedience, and this ability is something the courts must possess to prop erly 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) au thorizes the Commission’s request for a finding of civil contempt: (1) A civil contempt proceeding fo r unauthorized practice of law, as provided by § 37-61-210, MCA, or other applicable statute or law, shall be prosecuted in the manner provide d 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 perman ent injunction in lie w [sic] of or in addition to any punishment im posed for a civil contempt. ¶65 A person before a court charged with cont empt 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 commi tted in immediate view and presence of court or judge at chambers. (1) When a person arrested for a contempt not committed in the immediat e 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, sh all 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 had23 from time to time, if n ecessary. The judge investigating the charge and scheduling and presiding over the he aring may not be the judge against whom the contempt was allegedly comm itted, 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 orde r, the judge who issued the order may punish the contempt or compel complia nce with the order unless it is shown that the judge would not be impartial in addressing the contempt. (2) The charged person must be give n 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 fu ll 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 re asonable opportunity to meet them by way of defense or expl anation, 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 punish ment 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 ju ry 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 c ontempt cases imposing serious contempt pe nalties, 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 $10,00024 imposed on a union was insufficient to be cons idered 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), with out 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 fi ne not to exceed $500 or imprisonment for a term not to exceed 30 days, or both. Sectio n 3-1-520, MCA, provide s that contempt to compel performance allows a penalty of a fi ne 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 federa l law, and O’Neil advances no argument supporting a different definition of “serious” under State law. ¶69 O’Neil is entitled to due pr ocess 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. Consequent ly, O’Neil was afforded all the process due him including a reasonable o pportunity to obtain counsel a nd to prepare a defense or explanation prior to the hearing, as well as the opportunity to tes tify in his own behalf25 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 wh ich might include a jury trial. ¶70 Accordingly, we hold that the District Court properly ruled that the contempt proceeding against O’Neil coul d 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 Constitu tion 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 determina tion is whether this court has jurisdiction to punish for contempt, if the acts complain ed 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 cont empt. [Internal citations omitted and emphasis added.] Furthermore, “[p]ursuant to th e provisions of Article VII, Section 2, of the Constitution of the State of Montana, the Montana Suprem e Court has inherent ju risdiction 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 being26 advised and represented by unqua lified persons not subject to professional regulation. In a case decided more than 90 y ears ago, this Court stated:

When we consider the relationshi p of attorney and client and its consequences to the client, as well as to his possible adversary, it becomes manifest that insistence upon due au thorization 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 u pon 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, 14 6 P. at 1103 (emphasis added). ¶74 O’Neil also contends that §§ 37-61-201 and -210, MC A, 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 Di strict Court did not address that issue, the constitutionality of these statutes was imp licitly raised throughout the trial and in O’Neil’s brief on appeal and thus mer it this Court’s review. We agree. ¶75 In spite of O’Neil’s contentions to th e contrary, the Legislature (and not the Supreme Court) enacted the statutes on unaut horized 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 attorn ey or counselor at law or who shall appear in any court of record or before a judicial body, referee, commissioner, or other officer appointe d to determine any question of law or fact by a court or who shall e ngage 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, w ithout 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 spee ch challenge to these statutes as an overbreadth challenge. However, the overbreadth doctrine enables plai ntiffs to challenge a statute, not because their own rights of free expression are violated, “but because of a judicial prediction or assumptio n that the statute’s very existence may cause others not

before the court to refrain from constitutio nally 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 genera l 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 ex pression may be found to be invalid in its entirety, even if it could validly ap ply 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 substa ntial 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 fr eedom of speech, expression, asso ciation, petition and privacy” as a result of a specific applicatio n 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 condu ct, hence his case is not susceptible to a facial overbreadth challenge base d 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 cons titutionally protected ex pression,” any potential constitutional infirmities not implicated by O’ Neil’s case could “be cured through caseby-case analysis of the fact situations wher e 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 furt her 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 Constitu tion. The United States Supreme Court has responded to this question by holding that regulation of the bar “is a subject only marginally affected with Fi rst 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 Amendm ent right to practice la w in any way of his choosing, free even of rationa lly-based regulation,” because such a “broadly formulated First Amendment argument here would, if successful, grea tly undermine the power of states to regulate bar member ship, 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 Amendmen t right to receive le gal advice, but that right is limited to clients of dul y 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). Th e unauthorized practice statutes are narrowly tailored to target only the prov ision of legal services in Mo ntana by individuals who have not proven through examinatio n and admission to the bar that they “are qualified and possess a familiarity w ith [Montana] law.” Mothershed v. Justices of Supreme Court , 410 F.3d 602, 611-12 (9th Cir. 2005). Ther e remain ample alternative channels for providing legal services to O’Neil’s custom ers—the thousands of licensed attorneys in

Montana. ¶81 O’Neil also contends that the unauthori zed practice statutes are unconstitutionally vague because they fail to define wh at constitutes the practice of law. “A statute is void for vagueness on its face if it fails to give a person of ordinary inte lligence fair notice that30 the statute does not permit his contemplated conduct.” Yurczyk v. Yellowstone County , 2004 MT 3, ¶ 33, 319 Mont. 169, ¶ 33, 83 P.3d 266, ¶ 34 3 (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 lega l formalities, negotiations or proceedings, practices law; and when his acts consist in advi sing clients touching legal matters pending or to be brought before a cour t of record, or in preparing pleadings or proceedings for use in a court of record, or in ap pearing before a court of record, either directly or by a partne r 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 noti ce 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 “nei ther precise nor comprehensible to a reasonable person” and that the phrase “things usually done or perfor med by an attorney at law in the practice of his profession” is “v ague rather than prec ise, subjective rather

3 The paragraph numbers in the Pacific Reporte r differ from the paragraph numbers in the Montana Reports because Pacific Reporter numbered two consecutive paragraphs the same.31 than objective, and utterly insu fficient to support an injunctio n, 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 comple ting 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 advertis ing 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 co urts of the State of Montana. Contrary to O’Neil’s contentions, these i ndicia are precise, comprehensible to a reasonable person and sufficien t to prevent a person of common intelligence from having to guess at their meaning. ¶87 O’Neil’s conduct of drafting pleadings fo r his customers, providing them with legal advice and appearing in court with his customers, unque stionably 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 th e 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 sh ould give full faith and credit to the acts of the Tribes as we would the acts of any othe r 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 la w in our State courts. First, as already noted in this Opinion, O’Neil is not an attorn ey with the Blackfeet Tribal Co urt, 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 sovere ign nation and can licen se 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 cour t 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. NELSON33 We concur:

/S/ JIM RICE /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ BRIAN MORRIS