Montana ODC’s Complaint in In re Terry F. Schaplow: A Strong Warning Against Unsubstantiated Attacks on Judicial Integrity and Ex Parte Threats Under MRPC 3.1, 3.3, 3.5, 8.2, and 8.4

Court: Supreme Court of Montana (disciplinary jurisdiction via Commission on Practice)

Date of filing: February 20, 2025

Docket: PR 25-0152; ODC File Nos. 24-104 and 24-063

Parties: Office of Disciplinary Counsel (ODC) v. Terry F. Schaplow, Respondent

Introduction

This commentary addresses a disciplinary complaint filed by Montana’s Office of Disciplinary Counsel (ODC) against attorney Terry F. Schaplow. Although styled in the user prompt as an “Opinion,” the document provided is not a final judicial opinion and does not establish a new precedent. Instead, it is a charging instrument initiating formal disciplinary proceedings by leave of the Commission on Practice. No findings of fact or discipline have yet issued from the Montana Supreme Court.

The complaint centers on two family-law matters in which, according to the ODC, Respondent:

accused a standing master of having “engaged in the trafficking of little children” and suggested opposing counsel was the standing master’s personal attorney, and
delivered an ex parte letter to a district judge demanding recusal while threatening to file a Judicial Standards complaint, and confronted the judge’s clerk about a social interaction with opposing counsel.

The counts invoke core attorney-ethics rules: MRPC 3.1 (meritorious claims), 3.3 (candor to the tribunal), 3.5 (impartiality and decorum), 8.2 (statements about judges/legal officials), and 8.4(c) and (d) (dishonesty and conduct prejudicial to the administration of justice). The filing signals an enforcement posture toward hyperbolic and unsubstantiated accusations in litigation filings and improper ex parte communications, particularly in high-conflict domestic relations cases.

Summary of the Filing (Not a Final Opinion)

The ODC alleges the following:

Count One (MRPC 3.1): In a Gallatin County dissolution/parenting-plan case (Judge Ohman), Respondent asserted in a reply brief seeking a stay that the standing master had “once again engaged in the trafficking of little children.” The court issued a Rule 11 notice; after briefing, it warned Respondent of a Rule 11 violation and awarded fees to the opposing party. Respondent allegedly presented no evidence for the trafficking accusation and could not substantiate his claim that opposing counsel was the standing master’s “personal attorney.”
Count Two (MRPC 3.3): ODC alleges Respondent knowingly made false statements of fact to the court by alleging child trafficking and a special relationship between the standing master and opposing counsel without evidentiary support.
Count Three (MRPC 3.5): ODC alleges that Respondent’s accusations disrupted the proceedings, forced removal of issues to the district court, and were unjustified notwithstanding his disagreement with the standing master’s orders.
Count Four (MRPC 8.2): ODC alleges Respondent made statements about a judicial officer’s integrity with knowledge of falsity or reckless disregard for truth, thereby undermining confidence in the judiciary.
Count Five (MRPC 8.4(c) and (d)): ODC characterizes Respondent’s statements as misrepresentations that were prejudicial to the administration of justice, necessitating additional motion practice and a hearing.
Count Six (MRPC 3.5(a)–(c)): In a separate dissolution case before Judge Breuner, ODC alleges Respondent hand-delivered an ex parte letter demanding recusal under threat of a Judicial Standards complaint and confronted the judge’s clerk about a social interaction with opposing counsel, despite acknowledging that the interaction concerned non-case matters.
Count Seven (MRPC 8.4(d)): ODC alleges that Respondent’s conduct toward court staff and his ex parte communication with the judge were prejudicial to the administration of justice, causing disruption, additional motions, and a requested show-cause hearing.

The ODC asks for a citation requiring Respondent to answer within 21 days, a formal hearing before an Adjudicatory Panel of the Commission on Practice, findings and recommendations to the Montana Supreme Court, and imposition of appropriate discipline with costs if violations are proven.

Analysis

Procedural Posture and Scope

This is an initiating complaint. It contains allegations and legal theories but no adjudicated findings. The Commission on Practice will conduct proceedings and, if warranted, recommend discipline to the Montana Supreme Court, which imposes any final sanction. The filing nevertheless provides an instructive view of ODC’s enforcement priorities—particularly regarding the limits of rhetorical hyperbole in pleadings and the prohibition on ex parte pressure tactics.

Precedents Cited

The complaint itself does not cite prior case law. It relies on:

the text of the Montana Rules of Professional Conduct (MRPC 3.1, 3.3, 3.5, 8.2, and 8.4), and
procedural history in the underlying case, including a district court’s Rule 11 notice and subsequent order warning of a Rule 11 violation and awarding attorney’s fees.

Although no precedents are cited, two broader legal frameworks inform the analysis:

Montana Rule of Civil Procedure 11: The district court’s Rule 11 involvement demonstrates the judiciary’s concern with factual and legal baselessness in filings. Rule 11 and MRPC 3.1 often track similar concerns: the need for a reasonable factual and legal basis and the avoidance of filings for improper purposes.
Lawyer speech and judicial integrity (MRPC 8.2): Across jurisdictions, courts generally recognize that lawyers’ speech about judges, when knowingly false or made with reckless disregard for the truth, may be disciplined consistently with the First Amendment because lawyers, as officers of the court, can be subject to narrower speech restrictions than the general public to protect the administration of justice.

Because this Montana filing cites no case authorities, this commentary refrains from attributing particular doctrinal nuances to Montana precedent beyond what the MRPC themselves provide.

Legal Reasoning Embedded in the Counts

1) MRPC 3.1 (Meritorious Claims and Contentions) — Count One

MRPC 3.1 bars an attorney from presenting claims or contentions without a bona fide basis in law and fact after diligent investigation, and from pursuing positions for harassment, delay, or other improper purposes. ODC alleges that:

Respondent characterized a custody outcome as “child trafficking,”
could not provide evidence for that grave accusation, and
could not substantiate that opposing counsel was the standing master’s “personal attorney.”

On these allegations, ODC’s theory is that the statements were not merely argumentative or hyperbolic, but asserted as factual claims without evidentiary basis, triggering both Rule 11 concerns and a 3.1 violation.

2) MRPC 3.3 (Candor Toward the Tribunal) — Count Two

MRPC 3.3 prohibits a lawyer from knowingly making false statements of fact to a tribunal. ODC alleges Respondent advanced factual assertions—“child trafficking” by a standing master and a special attorney-client relationship—despite an inability to produce evidence when challenged. If proven, knowingly asserting such facts without support would contravene 3.3 because candor requires accuracy in representations to the court, particularly when assertions imply criminal or unethical conduct by a judicial officer.

3) MRPC 3.5 (Impartiality and Decorum of the Tribunal) — Counts Three and Six

MRPC 3.5 aims to preserve a tribunal’s impartiality and orderly process by prohibiting:

seeking to influence a judge by unlawful means,
ex parte communications with a judge or tribunal personnel concerning the merits, and
conduct intended to disrupt proceedings.

In the first matter (Count Three), ODC characterizes Respondent’s accusations as disruptive, requiring collateral proceedings and remedial motions. In the second matter (Count Six), ODC alleges an ex parte letter timed to coincide with a pending ruling, coupled with a demand for recusal and a threat to file an ethics complaint, as well as direct confrontation of the judge’s clerk over a non-case-related social interaction with opposing counsel. If proven, these facts squarely implicate 3.5’s bar on ex parte attempts to influence and on disruptive tactics outside the record.

4) MRPC 8.2 (Statements Concerning Judges and Legal Officials) — Count Four

MRPC 8.2 prohibits statements a lawyer knows to be false or makes with reckless disregard for truth or falsity about a judge or adjudicatory officer’s qualifications or integrity. The ODC contends Respondent accused a standing master of egregious misconduct without evidence, reducing a contested custody decision to “child trafficking.” If established, such allegations would fall within 8.2’s core concern: protecting the judiciary from fact-free attacks that undermine public confidence. The rule’s “reckless disregard” language parallels familiar constitutional actual-malice concepts, but as applied to lawyers’ professional speech, which is subject to stricter regulation to protect the justice system.

5) MRPC 8.4(c) and (d) (Misconduct: Dishonesty; Prejudice to the Administration of Justice) — Counts Five and Seven

MRPC 8.4(c) broadly prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. MRPC 8.4(d) bars conduct prejudicial to the administration of justice. The ODC portrays Respondent’s rhetoric as misrepresenting judicial conduct and creating additional proceedings (motions to disqualify, hearings, show-cause requests) that burdened the system. If proven, characterizing lawful custody orders as “child trafficking” and insinuating nonexistent special relationships, or threatening a judge ex parte with disciplinary complaints to secure recusal, would support findings under both 8.4(c) and (d).

Impact and Practical Significance

While not a final decision, the complaint sends several clear signals to Montana practitioners, especially in emotionally charged family-law disputes:

Hyperbole has limits when framed as fact: Accusations that imply criminality or corruption by judges or court officers demand a demonstrable factual basis. Rhetorical flourishes that cross into factual assertions without support invite discipline beyond Rule 11 exposure.
Ex parte pressure is perilous: Recusal demands or threats delivered outside the record, particularly when a ruling is imminent, can be construed as attempts to influence the tribunal in violation of MRPC 3.5.
Court staff interactions require restraint: Not every social interaction between staff and counsel is an ex parte “communication” on the merits. Confronting staff or imputing impropriety without evidence risks sanctions under 3.5 and 8.4(d).
Candor and civility protect credibility: MRPC 3.3 and 8.2 place a premium on accuracy when speaking about judicial actors. Unfounded attacks can erode a lawyer’s credibility before the court and trigger professional discipline.

If the allegations are ultimately sustained, potential sanctions could range from public reprimand to suspension, depending on aggravating/mitigating factors such as repetition, harm to proceedings, refusal to acknowledge wrongdoing, prior discipline, and cooperation. The inclusion of two distinct matters may be viewed as a pattern, which often aggravates sanctioning analysis.

Complex Concepts, Simplified

Standing Master: A judicial officer who assists the district court by making recommended findings and orders in certain cases (commonly domestic relations). While not an elected judge, a standing master is an “adjudicatory officer” within the meaning of MRPC 8.2.
Rule 11 (Mont. R. Civ. P. 11): Requires attorneys to ensure filings have a proper legal and factual basis and are not interposed for improper purposes. Violations can lead to fee-shifting and other sanctions. Ethical rules (MRPC 3.1 and 3.3) overlap in purpose but are enforced through bar discipline rather than case-specific sanctions.
Ex Parte Communication: Communication with a judge or tribunal personnel about a case without the opposing party’s knowledge or presence. Even outside the merits, timing and context can convert a “procedural” contact into an impermissible attempt to influence a pending matter. The safe path is to address concerns on the record or by noticed motion.
MRPC 8.2 “Reckless Disregard”: A lawyer may be disciplined for statements about judicial integrity made without sufficient factual foundation. This is stricter than ordinary public debate because lawyers, as officers of the court, bear special responsibilities to protect the justice system’s integrity.
Commission on Practice and ODC: The ODC prosecutes disciplinary matters. The Commission conducts hearings and makes recommendations to the Montana Supreme Court, which imposes final discipline. The complaint marks only the start of that process.

What Happens Next

The Commission issues a citation, and Respondent has 21 days to answer.
A formal hearing is held before an Adjudicatory Panel.
The Panel makes findings and recommendations to the Montana Supreme Court.
If violations are found, the Court determines the appropriate sanction and may award ODC its costs.

Practice Pointers for Attorneys

Before alleging judicial misconduct, compile verifiable evidence; if none exists, do not assert it as fact.
When objecting to a court officer’s ruling, focus on legal error and record support; avoid acusatory characterizations that imply criminality without proof.
Address concerns about staff or counsel interactions by raising them on the record or via a noticed motion; avoid direct confrontations with staff.
Never deliver ex parte letters seeking recusal or threatening complaints; follow established procedures for recusal and complaints, with notice to all parties.
Document your factual basis for serious assertions to satisfy MRPC 3.1 and to protect against Rule 11 exposure.

Conclusion

Although not a final opinion, the ODC’s complaint in In re Terry F. Schaplow spotlights the ethical boundaries that govern lawyer speech and conduct in contentious domestic-relations litigation. The filing alleges violations of foundational rules: bringing fact-free accusations (MRPC 3.1), misrepresenting facts to the court (MRPC 3.3), disrupting proceedings and engaging in ex parte pressure (MRPC 3.5), impugning judicial integrity without evidence (MRPC 8.2), and engaging in dishonest and justice-prejudicial conduct (MRPC 8.4).

The document reinforces an essential principle: lawyers have wide latitude to argue fiercely for their clients, but allegations—especially those insinuating criminality or corruption by judicial actors—must be grounded in demonstrable facts and raised through proper, on-the-record procedures. If the allegations are proven, this case will likely further entrench Montana’s intolerance for fact-free attacks on judges and for ex parte attempts to influence outcomes, offering a cautionary exemplar for practitioners across practice areas, and especially in family law.