Attorney who quit can be disciplined, court rules

2009-12-04T11:35:00Z Attorney who quit can be disciplined, court rulesGREG TUTTLE Of The Gazette Staff The Billings Gazette
December 04, 2009 11:35 am  • 

The Montana Supreme Court has ordered disciplinary action against a Billings attorney who resigned his license to practice amid allegations of misconduct.

In a recent order, the state’s high court said the resignation of Marvin E. “Toby” Alback does not prevent the justices from imposing sanctions against him for misconduct. The order states that Alback’s record will show that on Dec. 10, his license was suspended for 90 days. Alback was also ordered to pay the cost of the disciplinary proceedings.

Chief Justice Mike McGrath, who wrote the order, said Alback’s resignation does not prevent “imposition of discipline recommended as a result of pre-resignation misconduct and proceedings before the (Commission on Practice) completed prior to the attorney’s resignation. Such proceedings and any discipline imposed remain part of the attorney’s record, regardless of the attorney’s status” with the state bar association.

Alback declined to comment Friday.

In 1987, Alback was sentenced to 16 years at Montana State Prison, with 13 years suspended, for felony theft. Alback, who worked in Bozeman at the time, admitted stealing more than $95,000 from two clients.

Alback was disbarred as a result of the convictions; his license was reinstated in 2000.

More recently, Alback was accused of violating attorney rules of conduct by failing to properly represent a Billings woman in a Yellowstone County Justice Court civil case filed in 2007. According to court records, Alback failed to file a brief on behalf of his client, who then lost the case and was ordered to pay damages of more than $10,000 and attorney fees of $2,700.

When Alback’s client asked for a copy of the brief, he provided a copy with a certificate falsely indicating that it was filed with the court and mailed to the opposing attorney.

Alback’s client filed a complaint against the lawyer, who was also being investigated for at least one other complaint. According to the recent Supreme Court order, Alback was to receive a “private admonishment” in September for an unrelated matter. In that case, the court placed Alback on inactive status in July for failing to complete required continuing legal education classes.

Alback’s license was reinstated in mid September, according to court records, and he was informed that month that the Commission on Practice had recommended a 90-day suspension for his handling of the case in Justice Court. The Commission on Practice is a department of the Supreme Court that reviews allegations of lawyer misconduct and makes recommendations for discipline.

On Oct. 16, Alback asked the court for an extension of time to file objections to the commission’s recommendations; later that month, he said he had no objections to the recommendations. Also in late October, Alback asked the Supreme Court to delay the discipline for 90 days so he could deal with “a number of court appearances scheduled” and to make “arrangements relative to various client matters,” according to the Supreme Court order.

On Nov. 4, just days later, the Supreme Court received a copy of a letter Alback sent to the State Bar of Montana stating that he was resigning his license effective Nov. 6, that his resignation was permanent and he would never seek reinstatement to practice law in Montana or any other state.

In the recent order, the Supreme Court said that it was “at least curious that as late as September 15, 2009, (Alback) was on inactive status yet, within a little over a month, has accumulated such ‘a number of court appearances, hearings and other matters’ that immediate suspension would adversely impact the rights of his existing clients.”

Alback continued his legal practice as if the “recommendation for suspension did not exist,” the order states, asked for time to wrap up legal issues for his clients and then abruptly resigned.

“Accordingly, we conclude that (Alback) has not shown good cause for delay of the imposition of discipline and that whatever problems he allegedly has in winding up his practice during the period of suspension are of his own making,” the order states.

 

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