Mandatory Administrator Planning and Structural Reforms in Montana’s Lawyer Disciplinary System: Commentary on the 2025 Proposed Amendments to the Rules for Lawyer Disciplinary Enforcement

Mandatory Administrator Planning and Structural Reforms in Montana’s Lawyer Disciplinary System

Commentary on the Supreme Court of Montana’s 2025 Order Inviting Comment on Proposed Amendments to the Rules for Lawyer Disciplinary Enforcement (AF 06‑0628)

I. Introduction

On November 28, 2025, the Supreme Court of Montana issued an administrative order in AF 06‑0628 inviting public comment on a substantial package of proposed amendments to the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). The proposal, submitted jointly by the Office of Disciplinary Counsel (ODC) and the Commission on Practice (COP), would both:

  • Refine and clarify multiple existing disciplinary rules (Rules 2, 3, 4, 5, 10, 20, 33); and
  • Add an entirely new Rule 34: Administrator Planning, which would require all private-practice lawyers to engage in structured succession/administrator planning.

The Court has not yet adopted these amendments. Instead, it has circulated the full text of the proposed revisions, directed that they be posted on the websites of the Montana State Law Library and the State Bar of Montana, and granted the bench, bar, and public 60 days from the Order’s date to submit comments.

This commentary analyzes the proposed changes as a coherent reform package: it explains their background and objectives, examines the legal reasoning and policy choices embodied in the petition and draft rules, and considers the implications for Montana lawyers, clients, and the disciplinary system. Particular emphasis is placed on the new mandatory Administrator Planning regime in Rule 34, which would align Montana with a growing national movement toward succession planning for solo and small-firm practitioners.

II. Summary of the Court’s Order and the Proposed Amendments

A. The Court’s Order of November 28, 2025

The Court’s Order does three key things:

  1. Identifies the rules to be amended or added.
    The petition seeks amendment of:
    • Rule 2 – Commission on Practice: Appointment; Powers and Duties; Meetings
    • Rule 3 – Review Panels: Composition; Powers and Duties; Quorum
    • Rule 4 – Adjudicatory Panels: Composition; Powers and Duties; Quorum
    • Rule 5 – Office of Disciplinary Counsel
    • Rule 10 – Office of Disciplinary Counsel (Procedure)
    • Rule 20 – Access to Disciplinary Information
    • Rule 33 – Appointment of Trustee to Protect Clients’ Interests
    • And addition of new Rule 34 – Administrator Planning (with renumbering of subsequent rules).
  2. Invites comments.
    All Montana judges, lawyers, and other interested persons have 60 days from November 28, 2025 to file written comments or suggestions with the Clerk of the Supreme Court.
  3. Directs dissemination.
    The Court directs the posting of the proposed revisions on the State Law Library and State Bar websites, and requests that notice be provided through “expeditious electronic and timely means.” Copies are to be distributed to all District Court Judges and Clerks for public review.

In short, the Court has initiated a rulemaking-comment process rather than issuing a final, binding revision. Nonetheless, the attached petition and draft text reveal the substantive policy shifts the Court is seriously contemplating.

B. The Petition and Memorandum in Support

ODC and COP’s memorandum frames the amendments as a response to two broad problems:

  1. Procedural ambiguities and inefficiencies in the current MRLDE.
    The memorandum notes that “contested litigation over the past several years has demonstrated deficiencies or ambiguities in some procedures” and that the amendments seek “more specificity” in procedural rules. It also acknowledges a large number of purely non-substantive edits aimed at grammatical consistency (for example, consistent capitalization of “Chairperson” and “Vice Chairperson”).
  2. A mounting practical crisis around closure of lawyers’ practices.
    The petition reports a “significant increase” in Rule 33 Trustees appointed to protect clients when a lawyer dies, becomes incapacitated, abandons practice, or is incarcerated. Trustees, ODC, and the State Bar have often expended “hundreds of hours” per matter – frequently without meaningful compensation – retrieving files, gaining access to offices, reconciling trust accounts, notifying clients, and closing practices that were effectively unmanaged in the lawyer’s absence. The petition ties this problem to:
    • Montana’s aging bar;
    • Documented prevalence of mental health, substance abuse, and process addictions in the profession (citing a 2024 Bloomberg Law attorney well-being study); and
    • Montana’s historic lack of any mandate or even recommendation for “succession planning,” according to a 2019 ABA chart.
    Against this backdrop, ODC and COP propose strengthening Rule 33 and creating a proactive, mandatory planning framework in new Rule 34 to reduce the frequency and burden of emergency trustee appointments.

C. High-Level Overview of the Substantive Changes

Stripping away the many stylistic edits, the principal substantive changes can be grouped as follows:

  1. Governance and accountability of the Commission on Practice (Rule 2).
    • Creation of a conflicts procedure and authority for the Court to appoint trained substitute Commission members when a conflict prevents participation.
    • Express authority for the Commission to process grievances against Chief Disciplinary Counsel and other ODC staff, including investigation, dismissal, or findings and recommendations to the Court.
  2. Clarification of panel powers and records (Rules 3 and 4).
    • Clarifies that Review Panels may impose private discipline broader than a mere admonition, including corrective actions.
    • Removes Review Panels’ power to stay proceedings under Rule 28 (disability/inactive status), which is reserved to the Supreme Court.
    • Requires the Commission to maintain a record of Review Panel decisions (Rule 3E) – though these records remain non-public.
    • Clarifies that the Adjudicatory Panel Chairperson decides preliminary and procedural matters and administers oaths (Rule 4B(3)), with a corresponding adjustment to the subpoena/oath rule (Rule 19).
  3. ODC’s investigative tools and independence (Rules 5, 10, 19).
    • ODC must draw special investigators and volunteer special counsel from a panel of attorneys pre‑approved by the Court (Rule 5B(9)).
    • Rule 10A(2) adds an explicit standing requirement for filing grievances: the filer must be a client of the lawyer, a judge, or another person with a “cognizable interest” in the lawyer’s conduct.
    • Rule 19 centralizes authority to issue subpoenas and administer oaths in the Commission or Adjudicatory Panel Chairperson, and broadens who may trigger contempt enforcement.
  4. Confidentiality and discipline-by-consent (Rule 20, Rule 26).
    • Findings of fact, conclusions of law, and recommendations submitted to the Court in “discipline by consent” cases (Rule 26) remain confidential unless and until the Court approves them and public discipline is imposed (Rule 20B(3)).
  5. Funding for trustees and interaction with the Lawyers’ Fund for Client Protection (Rule 33).
    • If the subject lawyer and firm are insolvent or otherwise unable to pay trustee expenses, ODC may seek reimbursement from the Montana Lawyers’ Fund for Client Protection, with an accounting requirement.
  6. Mandatory Administrator Planning for private-practice lawyers (new Rule 34).
    • All “Active Members” in private practice must annually certify, on their licensing statement, that they have:
      • Designated an Interim Administrator (an active Montana lawyer or law firm in good standing); and
      • Identified a “Person with Knowledge” who knows how to access the lawyer’s files, records, passwords, and security protocols.
    • Rule 34 defines “Affected Attorney,” “Interim Administrator,” “Designated Interim Administrator,” and related terms; sets forth a detailed ex parte process in District Court for appointment and oversight of an Interim Administrator; and specifies the administrator’s duties, powers, and compensation.
    • Rule 34( O ) provides that if the Designated Interim Administrator is unable to serve and the lawyer cannot designate a successor, ODC must revert to a Rule 33 Trustee, thus tying the two mechanisms together.
  7. Renumbering and effective-date changes.
    • The former Rule 34 (Verification of Bank Accounts) becomes Rule 35; the former Rule 35 (Effective Date) becomes Rule 36, with an updated effective date of January 1, 2026 for the revised rules.

III. Precedents, Comparative Authorities, and Professional Responsibility Framework

A. Montana Rules of Professional Conduct as the Ethical Baseline

The memorandum grounds the proposed reforms, especially Rule 34, in longstanding professional responsibility obligations. It specifically invokes:

  • Rule 1.6 – Confidentiality of Information
    Lawyers must safeguard client information. Sudden death or incapacity multiplies the risk of confidential data loss or exposure if no one knows where files are or how to access systems.
  • Rule 1.9 – Duties to Former Clients
    Duties of confidentiality and loyalty continue after representation ends. Poor or nonexistent succession planning makes compliance with these duties difficult when practice closure is chaotic.
  • Rule 1.15 – Safekeeping Property
    Lawyers must safeguard and account for client property and funds (e.g., IOLTA/trust accounts). Emergency trustee experiences show that, in the absence of planning, crucial banking and record information dies with or disappears with the lawyer.
  • Rule 1.16(d) – Terminating Representation
    Upon termination, a lawyer must take reasonable steps to protect a client’s interests, including giving reasonable notice, allowing time for employment of other counsel, and surrendering papers and property. Rule 34 essentially applies this conception of “reasonable steps” prospectively, to cases where termination is involuntary and unplanned.

These are not new duties. The proposed Administrator Planning rule operationalizes them in the context of sudden unavailability.

B. Comparative Law and the Michigan Model

ODC and COP explicitly note that Montana is catching up to a national trend. The memorandum cites:

  • A 2019 ABA “State Mandatory Succession Rule Chart”:
    • Approximately 38 jurisdictions then recommended succession planning (often via optional successor designation on annual registration),
    • 4 jurisdictions required successor designations, and
    • Montana was one of eight jurisdictions with neither a mandate nor a recommendation.
  • Subsequent developments:
    • Mandatory designation regimes in Michigan, Maine, South Carolina, New Mexico, Arizona, Florida, and Iowa;
    • Pending or recent proposals in Pennsylvania;
    • Creation of an active registry of designated administrators in New Jersey.

The proposed Montana Rule 34 is said to be “largely modeled after Michigan’s Rule 21,” adopted in 2023 and reproduced (along with related Michigan Court Rules) as Appendix B to the petition. Michigan’s framework:

  • Requires every private-practice attorney to:
    • Designate an Interim Administrator or elect to use a State Bar–maintained list;
    • Identify a person with knowledge of file and password locations;
  • Creates a State Bar–administered roster of willing Interim Administrators;
  • Requires Interim Administrators to carry professional liability insurance covering their administrative role; and
  • Establishes detailed procedural and financial rules (MCR 9.300-series) for appointment, duties, and compensation.

Montana’s proposal tracks Michigan in structure and terminology, but with notable differences:

  • No explicit “roster fee” or bar-managed matching system.
    Michigan allows lawyers to pay a fee to use a bar-maintained list of Interim Administrators. Montana’s draft Rule 34, as presented, does not yet include such a fee or a formal matching service, instead relying mainly on each lawyer’s own designation.
  • No explicit malpractice insurance requirement for Interim Administrators.
    Michigan’s Rule 21(D) requires Interim Administrators to maintain professional liability insurance covering their administrator functions. The Montana draft does not contain a parallel requirement, though Interim Administrators will be subject to the Montana Rules of Professional Conduct and may reasonably be expected to consider coverage.
  • Closer integration with existing Rule 33 Trustee practice.
    Montana explicitly provides that if a Designated Interim Administrator cannot serve and no successor is available, ODC will revert to a Rule 33 Trustee. This explicitly ties the new proactive mechanism to the older emergency trustee framework.

In short, Montana is not inventing Administrator Planning from scratch; it is adapting a proven model while tailoring it to local structures (ODC, COP, Lawyers’ Fund) and practice realities.

C. Experience with Rule 33 Trustees as a De Facto Precedent

Although the petition does not cite specific cases by name, it draws heavily on the institutional experience of ODC, COP, and Trustees appointed under existing Rule 33 (Appointment of Trustee to Protect Clients’ Interests). That rule already authorizes District Courts to appoint one or more trustees when a lawyer has been:

  • Disbarred or suspended;
  • Is deceased, disabled, or “missing;” and
  • No partner, personal representative, or responsible party is capable of conducting the lawyer’s affairs.

Trustees are empowered to take possession of files, notify clients, deal with bank accounts (including IOLTA/trust accounts), and otherwise wind down the practice. However, the petition emphasizes that:

  • Trustee work is extraordinarily time-consuming and labor-intensive;
  • Trustees are generally uncompensated except for expenses, often paid by ODC or the Bar when the lawyer/firm lacks resources; and
  • Trustees often lack ready access to passwords, banking information, or staff who understand the lawyer’s systems, making effective performance “arduous at best, and virtually impossible, at worst.”

These real-world experiences function as the de facto “precedent” for the new Rule 34: they demonstrate the systemic cost and risk of not requiring proactive planning, and they help define what duties an Interim Administrator must be empowered to perform.

IV. Legal Reasoning and Policy Choices in the Proposed Amendments

A. Rule 2 – Strengthening the Commission on Practice’s Capacity and Accountability

1. Conflicts and Substitute Members

Rule 2(A) is amended to address what happens when a Commission member is required or elects to recuse because of an actual or perceived conflict of interest and “another member of the Commission cannot be substituted.” In that circumstance, the Supreme Court “shall appoint a substitute from a pre-selected panel of eligible attorneys or lay people who have been provided training on lawyer disciplinary procedures.”

This is a structural safeguard with several implications:

  • It preserves quorum and continuity when conflicts arise, instead of forcing postponement or proceeding with a diminished panel.
  • It ensures that substitutes are not ad hoc choices, but drawn from a pre‑selected, trained pool, promoting consistency and competence.
  • It reinforces the separation of prosecutorial (ODC) and adjudicatory (COP) functions by avoiding ad hoc substitutions that might appear influenced by case-specific dynamics.

2. Processing Grievances Against ODC and Its Staff

Amended Rule 2(G) gives the Commission express authority to:

  • “Process, investigate, and issue an order of dismissal or findings and recommendations to the Supreme Court regarding grievances filed against Chief Disciplinary Counsel, and/or other Office of Disciplinary Counsel staff.”

This formalizes a crucial accountability mechanism. Without it, complaints about ODC conduct could fall into a structural gray area: ODC cannot credibly investigate itself, and COP’s powers were not explicitly framed to encompass such grievances. By vesting COP with this function:

  • The system gains a clear, independent channel for addressing allegations of prosecutorial overreach, bias, or misconduct.
  • The Court retains ultimate control, as COP can only dismiss or recommend; the Court imposes discipline or other remedies.
  • Public confidence in the fairness of the disciplinary system is bolstered, as ODC is no longer effectively insulated from scrutiny.

B. Rules 3 and 4 – Clarifying Panel Roles, Powers, and Records

1. Enhanced Role of Review Panels and Creation of an Internal Record (Rule 3)

Rule 3(B)(4) now clarifies that Review Panels may “hear requests by Disciplinary Counsel for private discipline by the Commission and render the same upon approval,” with “private discipline” explicitly broader than a mere “private admonition.” This recognizes that:

  • Minor misconduct can sometimes be addressed through structured corrective action (e.g., remedial education, mentoring, practice management changes) without full-blown public discipline.
  • Providing COP express authority to approve such measures encourages early, proportionate resolution of low-level issues.

Rule 3(E) is a significant procedural addition. It requires the Commission to maintain a “record” of Review Panel considerations, including:

  • The respondent attorney’s name;
  • The request made by ODC;
  • The Montana Rules of Professional Conduct alleged and found applicable;
  • The Panel’s vote; and
  • The basis of decision if ODC’s request is not approved.

However, this record remains confidential. It may be shared with:

  • ODC, the respondent, and counsel as to the decision itself; and
  • Other Commission members when administering private discipline or when a Complaint is later filed.

The policy rationale is straightforward:

  • Maintaining a record enhances institutional memory and consistency in review decisions.
  • It supports proportionality in sanctioning, allowing panels to understand a lawyer’s prior private discipline when evaluating new grievances.
  • Confidentiality protects respondents from reputational harm for allegations that did not warrant formal charges or public sanctions.

2. Adjudicatory Panel Chairperson’s Authority (Rule 4) and Rule 19 Adjustments

Rule 4(B)(3) centralizes control of preliminary and procedural matters in the Adjudicatory Panel Chairperson:

  • The Chairperson decides all preliminary and procedural matters (other than the final decision after hearing);
  • The Chairperson administers oaths.

Correspondingly, Rule 19(A) is amended so that it is the Commission Chairperson (or Adjudicatory Panel Chair) who administers oaths and issues subpoenas in disciplinary matters. These changes align procedural authority and responsibility, reduce ambiguity over who may rule on motions or issue subpoenas, and support efficient case management.

The removal of references to “reconsideration” in Rule 4(B)(5) reflects a prior policy change (eliminating reconsideration) and thus is primarily a clean-up, but it helps prevent parties from erroneously seeking relief no longer provided for.

C. Rule 5 – Court-Screened Panels for Special Investigators and Counsel

Rule 5(B)(9) now specifies that when circumstances necessitate use of special investigators or volunteer special counsel, ODC must select them “from a panel of approved attorneys compiled by the Court.”

This modification has several regulatory benefits:

  • It introduces a layer of Court vetting for lawyers entrusted with sensitive disciplinary investigations or prosecutions.
  • It reduces the risk of perceived favoritism or ad hoc selection of allies, thereby enhancing the legitimacy of investigations that ODC cannot handle internally (e.g., conflicts, workload spikes).
  • It allows the Court to ensure panel attorneys receive appropriate training or orientation on disciplinary procedure.

D. Rule 10 – Standing to File a Grievance and Terminology Consistency

Rule 10(A)(2) now insists that ODC “make appropriate referrals regarding information and grievances while assuring that any client of a lawyer, judge, or other individual with a cognizable interest regarding the lawyer’s conduct, who wishes to make a grievance against a lawyer is able to do so.”

In effect, this codifies a standing requirement for grievances:

  • Historically, many jurisdictions have allowed “any person” to file a complaint about lawyer conduct. The amendment moves away from pure open-standing.
  • By requiring a “cognizable interest,” the rule aims to filter out purely speculative, harassing, or ideologically motivated complaints by persons with no connection to the lawyer’s conduct.
  • At the same time, the language is broad enough to include:
    • Clients;
    • Opposing parties or counsel in a matter harmed by misconduct;
    • Judges observing misconduct in their court; and
    • Others with a concrete stake in the conduct at issue (e.g., beneficiaries of a trust mishandled by the lawyer).

The trade-off is important and may be a focus of comments:

  • Pro: Reduces workload from plainly vexatious or irrelevant complaints; supports procedural efficiency.
  • Con: Risks excluding “whistleblower” reports where the harm is diffuse or the relationship to the complainant is indirect (e.g., watchdog groups, journalists, or citizens observing systemic misconduct).

Separately, Rule 10(D)(1) updates terminology so that Review Panels may approve “private discipline” (not only a “private admonition”), aligning procedure with substantive changes to Rule 9 and Rule 3.

E. Rule 20 – Confidentiality of Discipline-by-Consent Materials

Rule 20(B)(3) now makes clear that:

  • Conditional admissions, affidavits of consent, and the Commission’s findings, conclusions, and recommendations submitted under Rule 26 remain confidential until and unless the Court approves them and public discipline is imposed.

This approach mirrors due-process and settlement-sensitive practices in many jurisdictions, and it accomplishes two things:

  • Encourages settlement of disciplinary cases via conditional admissions, by protecting lawyers from public stigma if the Court ultimately rejects the consent discipline or imposes a different outcome.
  • Protects grievants and third parties from premature public disclosure of allegations that might never result in public discipline.

Once public discipline is imposed, the conditional admission and affidavit of consent become part of the public record, consistent with transparency norms.

F. Rule 33 – Shifting Trustee Costs to the Lawyers’ Fund When Necessary

Rule 33(G) is revised to address the chronic funding problem for Trustees:

  • Trustees’ fees and expenses are initially paid by ODC.
  • ODC is entitled to reimbursement from the subject lawyer for whom the trustee is appointed.
  • If the lawyer and/or firm is insolvent or unable to pay, ODC may seek reimbursement from the Montana Lawyers’ Fund for Client Protection, provided the claim includes a full accounting of receipts, disbursements, and distributions of money.

Policy considerations:

  • This reduces the risk that ODC’s budget will be overwhelmed by large, complex trusteeships.
  • It recognizes that the closure of a practice is often closely tied to harm that might also underlie claims to the Lawyers’ Fund (e.g., missing client funds, mismanaged trust accounts).
  • At the same time, drawing on the Lawyers’ Fund for administrative closure costs could reduce the resources available for direct client reimbursement, an issue that may warrant close monitoring and perhaps express caps or priority rules in future implementation.

G. Rule 34 – Mandatory Administrator Planning

New Rule 34 is the centerpiece of the reform package. It operationalizes the lawyer’s ethical duty to protect client interests in the event of unexpected inability to practice, and seeks to reduce crisis-driven trustee appointments under Rule 33.

1. Who Must Comply?

Rule 34(A) requires every Active Member of the State Bar of Montana to certify annually on their licensing statement whether they are “in private practice.” If the answer is yes:

  • The lawyer must designate an Interim Administrator; and
  • The lawyer must identify a Person with Knowledge of the location of professional papers and electronic files and of passwords/security protocols.

Key defined terms (Rule 34(C)):

  • “Affected Attorney” – a lawyer who is temporarily or permanently unable to practice because they:
    • Have resigned, been disbarred, or suspended;
    • Have disappeared, been imprisoned, or abandoned practice;
    • Have become temporarily or permanently incapacitated;
    • Have been transferred to disability/inactive status; or
    • Are deceased.
  • “Private Practice Attorney” – an active Montana lawyer in good standing who is subject to Rule 34. (The rule borrows language directly from the Michigan framework.)
  • “Law Firm” – the entity in which the Affected Attorney has practiced.
  • “Affected Attorney’s Clients” – clients for whom the Affected Attorney is attorney of record, whether the retainer is with the lawyer individually or the law firm.
  • “Interim Administrator” – an active Montana lawyer in good standing (or a law firm with at least one such lawyer) designated to serve on behalf of a Private Practice Attorney who becomes an Affected Attorney.
  • “Designated Interim Administrator” – an Interim Administrator specifically designated by a Private Practice Attorney and who has accepted that designation.
  • “Appointed Interim Administrator” – an Interim Administrator formally appointed by District Court under Rule 34(E)–(H).

2. The Required Annual Designations

On the annual licensing statement (beginning in 2026 and annually thereafter), each private-practice lawyer must:

  • Designate an Interim Administrator:
    • An active Montana attorney in good standing; or
    • A law firm with at least one other active Montana attorney in good standing (other than the affected attorney).
  • Identify a Person with Knowledge:
    • This person knows where the lawyer’s professional papers and electronic files are located and knows passwords and other security protocols needed to access professional records.
    • This person need not be a lawyer – office staff or other trusted individuals can fulfill this role.
    • The Person with Knowledge may, but need not, be the same as the Interim Administrator.

The State Bar of Montana is directed to create a confirmation process for Designated Interim Administrators to ensure they knowingly accept the responsibility.

3. When the Law Firm Itself Can Act Without Court Appointment

Rule 34(D) addresses situations where the Affected Attorney is in a firm:

  • If the firm is the Designated Interim Administrator,
  • Has at least one active Montana lawyer in good standing who can competently represent the Affected Attorney’s clients, and
  • Obtains express written consent from each affected client (kept in the client file),

then the firm may continue representing those clients without the need for a court-appointed Interim Administrator. This respects existing client-law firm relationships while ensuring explicit client consent and competent coverage.

4. Court Appointment of an Interim Administrator

Where court appointment is necessary (e.g., solo practitioners, or where a firm cannot or should not continue), Rule 34(E)–(H) establish an ex parte appointment process:

  1. Commencement (Rule 34(E)).
    A proceeding is commenced by filing an ex parte verified petition in the District Court where the Affected Attorney lives or practices. The petition must show:
    • The lawyer is an Affected Attorney within Rule 34(C);
    • An Interim Administrator is necessary to protect clients’ and/or the Affected Attorney’s interests; and
    • The proposed Interim Administrator is qualified under the rule.
  2. Service (Rule 34(F)).
    The petition and supporting documents must be served on:
    • The Affected Attorney (if whereabouts known);
    • The Affected Attorney’s estate (if deceased); and
    • Any fiduciary appointed for the Affected Attorney.
  3. Order of Appointment (Rule 34(G)).
    If the court finds, by a preponderance of the evidence, that the attorney is an Affected Attorney and appointment is necessary, it must:
    • Appoint the Designated Interim Administrator unless good cause exists to appoint someone else; and
    • May appoint additional Interim Administrators if good cause exists.
    The order must expressly authorize the Interim Administrator to:
    • Take custody of and be signatory on the lawyer’s office, trust, and other related accounts;
    • Disburse funds to clients and others entitled to them; and
    • Take all appropriate actions with respect to the accounts.
    The court may require interim and final accountings and may permit seal of portions disclosing confidential client information.
  4. Notice (Rule 34(H)) and Objections (Rule 34(I)).
    Once appointed, the Interim Administrator or petitioner must serve notice of the appointment (with contact details) on:
    • The Affected Attorney;
    • The Affected Attorney’s estate (if deceased); and
    • Any fiduciary.
    If the petitioner is the Designated Interim Administrator, notice also goes to ODC and the State Bar, which must publish notice in the Montana Lawyer and on its website. Interested persons have 14 days to object, though objections do not automatically stay the appointment.

5. Duties, Powers, and Compensation of the Interim Administrator

Rule 34(J)–(M) specify the administrator’s role. Key points:

  • No obligation to expend personal funds (Rule 34(J)(1)), but if the administrator does, they may seek reimbursement from:
    • The Affected Attorney;
    • The Affected Attorney’s estate; or
    • (By analogy to Rule 33 and the Lawyers’ Fund, though not expressly stated here) other available sources.
  • General duties (Rule 34(J)(2)). These mirror, but are more detailed than, Rule 33 trustee duties:
    • Take custody of files and records;
    • Take control of accounts, including trust and operating accounts;
    • Review files to identify pending matters;
    • Promptly notify clients of the appointment;
    • Deliver files, funds, and property according to clients’ directions (subject to lawful liens and the right to retain copies);
    • Take steps to protect client interests, the public, and, where not inconsistent, the Affected Attorney’s interests;
    • Cooperate in continuation, sale, or winding up of the law practice; and
    • Manage conflicts of interest consistent with the Rules of Professional Conduct.
  • Inventory, Accounting, and Reporting (Rule 34(J)(3)).
    • The Interim Administrator must account for all receipts, disbursements, and distributions, including trust-account activity;
    • File a final report and accounting with the court;
    • ODC or the State Bar may seek interim accountings if mismanagement is suspected.
  • Protection of Client Information and Privilege (Rule 34(K)).
    • The appointment does not automatically create an attorney-client relationship with the Affected Attorney’s clients; however,
    • The attorney-client privilege applies to communications between the Interim Administrator and those clients as it would have applied to the Affected Attorney;
    • The Interim Administrator is subject to Rule 1.6 (confidentiality) regarding all information in client files.
  • Control over Client Files and Property (Rule 34(L)).
    • The District Court has jurisdiction over files and property and may order delivery, storage, or destruction as appropriate;
    • The Interim Administrator may destroy files pursuant to the law office’s retention policy or ethical obligations without further court permission.
  • Compensation and reimbursement (Rule 34(M)).
    • The Interim Administrator is entitled to “reasonable compensation” and reimbursement for reasonable costs, including staff, office, and professional services;
    • Compensation is ordinarily paid from the law firm’s resources; if insufficient, the Interim Administrator may file a claim against the Affected Attorney’s estate;
    • The court may enter a judgment lien for compensation and expenses against the law firm or Affected Attorney, retroactive to the filing of the petition, subordinate to prior liens and security interests.

6. Employment of the Interim Administrator as Counsel

Rule 34(N) permits the Interim Administrator, with the informed written consent of the client, to represent the Affected Attorney’s client in pending matters, provided:

  • The written consent acknowledges that the client is not obligated to retain the Interim Administrator.

This balances:

  • The Interim Administrator’s fiduciary responsibilities in winding down the practice; and
  • The opportunity to provide continuity of representation where clients so desire.

7. Fallback to Rule 33 Trustees When Designated Administrator Cannot Serve

Rule 34(O) closes the loop: if the Designated Interim Administrator cannot serve and the Affected Attorney cannot name a successor, ODC must appoint a Rule 33 Trustee.

This ensures that, even if Administrator Planning fails in a particular case, the existing emergency trusteeship mechanism remains available as a safety net.

V. Impact and Practical Consequences

A. For Montana Lawyers – Especially Solo and Small-Firm Practitioners

The most immediate impact on practitioners is the new affirmative obligation to engage in Administrator Planning:

  • Private-practice lawyers will need to:
    • Identify a suitable Interim Administrator;
    • Secure that lawyer’s informed willingness to serve (and update designations if circumstances change);
    • Ensure someone – often staff – qualifies as a “Person with Knowledge” of file locations and security protocols;
    • Organize office systems so that an Interim Administrator can realistically perform the duties described in Rule 34.
  • Firms will need to adopt or update internal succession policies to:
    • Ensure coverage for partners and associates who might become Affected Attorneys;
    • Decide whether the firm itself will act as Designated Interim Administrator for its lawyers.

This will require some up‑front administrative effort, but if done well it should also:

  • Improve office organization and documentation of trust-account procedures;
  • Facilitate compliance with Rule 1.15 and 1.16(d) in ordinary (non-emergency) practice transitions;
  • Reduce the probability that clients are left in limbo when a lawyer is suddenly incapacitated or dies.

B. For Clients and the Public

From the client’s perspective, the reforms offer multiple protections:

  • Reduced risk of missed deadlines and lost rights.
    Administrator Planning is expressly justified on the ground that, without a qualified individual to assist when tragedy strikes, clients can “miss filing deadlines or court hearings, lose their right to appeal, or be unable to access vital documents or entrusted funds.” A standing Interim Administrator should mitigate these risks.
  • Improved protection of confidentiality and property.
    The combination of Rules 33 and 34 – with their detailed provisions on trust accounts, file custody, and confidentiality – reduces the likelihood of uncontrolled access to sensitive client data and funds in the aftermath of a lawyer’s incapacity or death.
  • Increased accountability and transparency.
    Enhanced authority to process grievances against ODC, clearer Review Panel records, and more structured consent-discipline procedures all promote a disciplinary system perceived as both fair and effective.

C. For ODC, COP, and the State Bar

Institutionally, the reforms are designed to:

  • Reduce the frequency and burden of emergency trusteeships.
    If Administrator Planning works as intended, many scenarios that would currently trigger a Rule 33 Trustee will instead be handled by a known, prepared Interim Administrator with better access to the lawyer’s systems.
  • Simplify case administration.
    Clarified authority of panel chairpersons, recordkeeping requirements, and the standing requirement for grievances all aim to streamline disciplinary case processing.
  • Enhance oversight and self-regulation.
    Allowing COP to process grievances against ODC strengthens the system’s internal checks and enhances public confidence in ODC’s integrity.
  • Shift some financial burdens to the Lawyers’ Fund.
    The ability to seek reimbursement for trustee expenses from the Lawyers’ Fund, when the lawyer/firm is insolvent, helps protect ODC’s budget – though it raises allocation questions for the Fund.

D. Potential Points of Controversy or Focus for Public Comment

Several elements of the proposal may warrant close scrutiny and careful comment:

  • The scope and clarity of the “cognizable interest” standard for grievances (Rule 10(A)(2)).
    Stakeholders may wish to consider:
    • Whether the standard is sufficiently clear to avoid arbitrary rejection of complaints;
    • Whether it should be supplemented by examples or commentary (e.g., including court observers, whistleblowers, or bar counsel from other jurisdictions); and
    • How it interacts with reciprocal discipline and public confidence in the regulatory system.
  • Financial implications for the Lawyers’ Fund for Client Protection (Rule 33(G)).
    Questions include:
    • Whether limits or priority rules should be adopted to ensure client restitution remains the Fund’s primary use; and
    • How to avoid moral hazard (e.g., lawyers relying on the Fund rather than adequately planning or insuring against closure costs).
  • The absence of an explicit malpractice insurance requirement for Interim Administrators.
    Given Michigan’s decision to require such coverage, Montana may wish to address:
    • Whether similar protection is needed for Montana clients; and
    • Whether requiring insurance could unduly deter lawyers from serving as Interim Administrators, especially in rural areas.
  • Implementation logistics for the State Bar of Montana.
    The Bar must:
    • Adapt the annual licensing statement;
    • Build and administer the confirmation process for Interim Administrators;
    • Develop educational materials and perhaps training programs for lawyers taking on this role.

VI. Simplifying Key Concepts and Terminology

For ease of understanding, the following are plain-language explanations of some of the more technical terms used in the proposed rules.

  • Commission on Practice (COP) – A 14‑member body (9 lawyers and 5 nonlawyers) appointed by the Supreme Court to perform adjudicatory functions in the disciplinary system. It operates through:
    • Review Panels – Screen cases, authorize filing of formal Complaints, and approve certain forms of private discipline.
    • Adjudicatory Panels – Conduct hearings, make findings and recommendations, and in some cases impose discipline directly.
  • Office of Disciplinary Counsel (ODC) – The prosecutorial arm of the system. It receives complaints, investigates, and prosecutes disciplinary cases, but does not decide them.
  • Private Admonition / Private Discipline / Letter of Caution – Non-public forms of discipline used for minor or technical violations with little or no injury and little likelihood of repetition. They are intended to be corrective and educational rather than stigmatizing.
  • Public Admonition / Censure / Suspension / Disbarment – Public sanctions of increasing severity, ranging from formal reprimands (censure or admonition) to temporary suspension and permanent disbarment.
  • Trustee (Rule 33) – A lawyer appointed by the District Court to protect clients’ interests and wind down a lawyer’s practice when the lawyer is disbarred, suspended, missing, disabled, or deceased, and no responsible party can take over the practice.
  • Interim Administrator (Rule 34) – A lawyer (or law firm) designated in advance by a private-practice lawyer, or later appointed by the court, to step in and temporarily manage the practice if the lawyer becomes an “Affected Attorney” (e.g., death, incapacity, disappearance).
  • Person with Knowledge – Usually staff or a trusted individual who knows where the lawyer’s files (paper and electronic) are stored and how to access them (passwords, encryption, etc.). This is the person who can quickly help the Interim Administrator get into the systems.
  • IOLTA/Trust Account – A pooled trust account (often Interest On Lawyers’ Trust Accounts) in which lawyers are required to hold client funds separate from their own. Mishandling trust accounts is a serious disciplinary violation.
  • Disability/Inactive Status (Rule 28) – A status for lawyers who, by reason of mental or physical incapacity, cannot currently practice. It can be automatic in certain circumstances (e.g., judicial incompetency determinations) or result from assertions of inability to defend disciplinary proceedings.

VII. Conclusion

The Supreme Court of Montana’s November 28, 2025 Order does not itself change the law. It sets in motion a public comment process on a comprehensive set of proposed amendments to the MRLDE that would:

  • Tighten procedural clarity and fairness in disciplinary investigations and adjudications;
  • Formalize oversight of ODC itself and strengthen mechanisms for independence and accountability;
  • Clarify the scope of confidential and public disciplinary information; and
  • Most notably, introduce Mandatory Administrator Planning for all private-practice lawyers, moving Montana into alignment with a rapidly developing national consensus that proactive succession planning is a core component of client protection and professional responsibility.

If adopted, the new Rule 34 and related amendments would significantly reduce the chaotic and resource-intensive reliance on emergency trustees under Rule 33, provide better protection for client interests when lawyers are suddenly unable to practice, and modernize the structure of Montana’s disciplinary system. At the same time, they raise important questions about standing to file grievances, the allocation of Lawyers’ Fund resources, and the practical burdens of compliance on solo and small-firm practitioners.

The Court’s invitation for comment offers the bench, bar, and public a meaningful opportunity to refine these reforms before they take effect (currently targeted for January 1, 2026). Thoughtful engagement now can help ensure that Montana’s lawyer regulation system remains not only rigorous and fair, but also resilient in the face of demographic and professional challenges.

Source

All quotations and rule descriptions in this commentary are drawn from the Supreme Court of Montana’s Order in AF 06‑0628 dated November 28, 2025, and the attached “Petition to Amend Rules and Memorandum in Support” and proposed amendments to the Montana Rules for Lawyer Disciplinary Enforcement (2021), as supplied in the OpinionText.

Case Details

Year: 2025
Court: Supreme Court of Montana

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