Montana’s Constitution guarantees citizens the right to know what government officials and public employees are doing or have done in their publicly funded jobs.

However, Montana Supreme Court rules make an exception for attorneys. The court’s disciplinary rules allow public attorneys to admit serious professional misconduct with the promise that their wrongdoing will be kept secret.

On Friday, a working group appointed by the Supreme Court met to continue a discussion of changing that rule to satisfy the constitutional requirement for public disclosure. It’s gratifying that all three justices in the group — Patricia Cotter, Brian Morris and James Nelson — agreed that details of misconduct should be made public in cases where an attorney is formally disciplined, while still allowing private warnings for minor infractions.

“If the system is going to discipline an attorney, that should be public,” Nelson told a Gazette State Bureau reporter.

“Whenever a lawyer does something that merits discipline, they’ve crossed the line and that should be made public,” said Helena attorney Mike Meloy, who represents The Billings Gazette.

Billings disciplinary case

The three justices directed other members of the panel to collaborate on possible rule changes to provide greater public disclosure of attorney discipline. Their direction echoes an order the Montana Supreme Court issued a year ago. On Nov. 28, 2008, the court turned down an appeal from The Gazette for disclosure of the reasons why a former Billings assistant city attorney was publicly censured, had her law license temporarily revoked and was placed on probation for two years. Although the court held that Moira D’Alton’s case was subject to the rule allowing secrecy, it announced an intention to begin rulemaking proceedings within 60 days to consider revising the rule.

Chief Justice Karla Gray and four other justices signed that order. Her successor, Mike McGrath, is on record supporting a change in disciplinary rules to provide greater public disclosure. As McGrath observed while running for the Supreme Court in 2008, the court already has held that discipline of public-school teachers and police officers is subject to public disclosure.

Proposal for change

The clear support of the chief justice and other justices is a welcome sign that the judiciary recognizes the critical importance of openness in government. We commend McGrath, Nelson, Cotter and Morris for taking stands in favor of the public’s right to know.

However, it is perplexing that a year later, possible rule changes are still just being discussed — not adopted or implemented. A proposal presented to the rules group members  in late October by John Warren, chairman of the court’s Commission on Practice, and Shaun Thompson, disciplinary counsel, lacks the broad disclosure provision that the Constitution requires.

A change in Supreme Court rules now won’t affect the D’Alton case. But going forward, the court should follow through on its commitment to public information. We respectfully encourage the court to proceed expeditiously to align its disciplinary rule with the constitutional mandate that presumes the public has the right to know.