Legal dispute resumes

State commission receives complaint about Jerry O'Neil

State Sen. Jerry O'Neil is again under fire from the Montana Commission on Unauthorized Practice of Law - but he insists that his position is defensible.

O'Neil, who is serving his final term as a Republican senator from Columbia Falls, received a letter notifying him that the commission has received "yet another complaint that you are engaging in the unlawful practice of law."

The letter from John Connor, chairman of the commission and the Montana Justice Department's chief criminal counsel, cites a recent court injunction from Polson District Judge Kim Christopher banning O'Neil from practicing law in Montana.

But O'Neil, a paralegal, points to an exception in the injunction that allows him to act as "a lay representative if authorized by lay administrative agencies or tribunals to do so."

O'Neil contends that the commission's action is just the latest effort to suppress any legal representation that falls outside of a monopolisitic "syndicate."

O'Neil has long claimed that his work as an "advocate and counselor" fills a niche in serving people who cannot get - or afford - representation from licensed attorneys.

The complaint against O'Neil was filed by Brenda Wahler, a special assistant attorney general who represents the Montana Department of Health and Human Services. The complaint pertains to a case in which O'Neil is representing a couple before the same department's Office of Fair Hearings.

Wahler states in her complaint that O'Neil recently wrote to her, requesting evidentiary discovery, on a letterhead saying he is an "Advocate and Counselor" and that he has been "licensed to practice before the Blackfeet Tribal Court since 1984."

"By these actions, Mr. O'Neil is appearing or attempting to appear as a legal representative or advocate for others in a tribunal of this state," Wahler says in the complaint. "Mr. O'Neil is providing legal advice, making discovery requests, and requesting motions."

Doing so, she asserts, constitutes the practice of law.

Connor comes to the same conclusion, informing O'Neil that he must withdraw from the case or the commission's complaint will be forwarded to the Lewis and Clark County Attorney for civil or possibly criminal sanctions.

Although Connor says that O'Neil appears to "completely disregard" the terms of the injunction against him, O'Neil says that's not the case.

He cites an Oct. 4 letter from the hearings officer in the case.

"A signed statement from the [couple] identifying you as their authorized representative is all that is needed for you to proceed on their behalf - no state-issued licensure is required," the hearing officer states.

O'Neil contends that fits the exception in the injunction because he has been authorized by the hearings officer to serve as an advocate.

And he objects to the chairman of the commission acting on a complaint from one of his co-workers in the Montana Justice Department.

"They want to stop people from getting help unless it's from a state-licensed attorney," O'Neil said.

In the arena of family law and the Department of Health and Human Services, O'Neil insists there is a role for advocates such as himself, because administrative actions are taken against people who cannot find attorneys who are willing to take their cases, or they can't afford attorneys.

In those cases, the defendants "basically lose," he said.

O'Neil insists that he won't back down on the current case and he may attempt to incorporate it into another ongoing dispute with the commission that is pending in U.S. District Court in Missoula.

In that case, the commission sued O'Neil for advertising his services in the Yellow Pages, claiming that the ad is deceptive. The case originally was filed in state court but O'Neil succeeded in moving it to federal court, where he is challenging it on grounds that the commission is infringing on his First Amendment free-speech rights.

O'Neil's tangles with Montana's legal establishment stretch back to the late 1970s. Since then, he said he has unsuccessfully tried to have disputes heard by juries instead of judges, to determine "whether I'm out of line, or if I'm doing all right by trying to help people."

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com