Montana to Implement Revised Legal Ethics Rules in 2020

The start of 2020 will usher in a number of changes to Montana’s professional conduct rules as a result of the first comprehensive rules review in almost two decades.

The changes “were needed in light of 21st century developments in technology, business and law,” a Dec. 21 statement issued by the State Bar of Montana said.

The 18 revisions recommended by the bar and adopted by the Montana Supreme Court “are distinctly Montanan, while absorbing vetted ABA recommendations,” the statement said. They include amendments to the client confidentiality rule and the organization as a client rule, and address cannabis-related representation.

The court adopted additional exceptions to the client confidentiality rule, which prohibits attorneys from revealing information relating to a client’s representation except under certain circumstances.

The amended rule now includes the ABA’s exceptions, which allow disclosure of information to prevent “substantial injury to the financial interests or property of another” due to client crimes “in furtherance of which the client has used the lawyer’s services.”

The new exceptions “allow lawyers to protect Montana’s citizens from unlawful client behavior,” the bar said, and were inspired by “corporate malfeasance” that led to the 2008 recession.

The state supreme court also adopted the bar’s recommendation to incorporate ABA Rule 1.13, which addresses organizations as clients.

“The new language eliminates the Hobson’s choice of Montana’s current rule requiring resignation in the face of inappropriate client or organization behavior,” the bar said.

Under the new rule, attorneys who work for an organization can reveal information about the representation under certain circumstances. An attorney who knows a person associated with the organization has broken the law and will likely cause the organization “substantial injury” has to take steps that are “reasonably necessary” in the entity’s best interest. This includes revealing information relating to the representation.

The new rules also take a first stab at addressing the growth of cannabis law practices across the country.

The bar said Montana’s current model rule on scope of representation “appears to disallow Montana attorneys from representing clients engaged in the emerging cannabis industry” due to conflicts between state and federal law.

Montana has legalized medical marijuana, according to the National Conference of State Legislatures’ website. The possession or use of marijuana is illegal under federal law.

The state bar thus decided to create a “safe harbor” in the rules’ preamble section stating that lawyers can “counsel and assist a client regarding Montana’s cannabis-related laws.” It plans to revisit the actual rule when federal and state law are more aligned.

There were additional amendments including to rules regarding unclaimed property in trust accounts, special responsibilities of prosecutors regarding new evidence, and attorney advertising.