## Facts

- Steven T. Potts, a Montana attorney, represented Evon Leistiko and her son Tyson Leistiko in a will contest involving Ernestine Stukey’s estate.
- Ernestine executed a 1998 will that largely disinherited Evon and favored Charlene Howard; after Ernestine’s later incapacity, Evon became conservator and reported an estate value exceeding $1.25 million.
- A substantial portion of the assets consisted of joint tenancy accounts titled in Ernestine’s and Evon’s names; whether those accounts were part of the property division was central to settlement negotiations.
- During settlement discussions, Evon and Tyson concealed that Evon had already transferred some joint account funds to herself and intended to secure the remainder for herself shortly after settlement.
- Opposing counsel sent Potts a letter stating the understanding that the joint accounts were included in the settlement and asking Potts to correct that understanding if wrong.
- Potts did not respond and proceeded (at Tyson’s direction) to draft and submit a settlement stipulation that did not correct the mistaken assumption about the joint accounts.
- The Office of Disciplinary Counsel initiated lawyer-discipline proceedings, and the Commission on Practice found violations of Rules 1.2(d) and 3.3(a)(2) of the Montana Rules of Professional Conduct.

## Issues

1. Whether Rule 1.6 confidentiality permitted Potts to remain silent rather than be candid with opposing counsel and the tribunal.
2. Whether Potts violated Rule 1.2(d) by counseling or assisting conduct he knew was criminal or fraudulent.
3. Whether Potts violated Rule 3.3(a)(2) by failing to disclose a material fact to the tribunal to avoid assisting a client’s criminal or fraudulent act.
4. Whether the Commission improperly excluded Potts’s proposed expert witness testimony.
5. Whether the Commission improperly excluded part of Potts’s testimony as hearsay.
6. Whether the recommended sanction was appropriate.

## Decision

- The Montana Supreme Court adopted the Commission’s findings of fact and conclusions of law.
- The Court held Potts violated Rule 1.2(d) and Rule 3.3(a)(2).
- The Court rejected Potts’s argument that Rule 1.6 excused his failure to correct the material misunderstanding about the joint accounts.
- The Court upheld the Commission’s evidentiary rulings excluding Potts’s expert and excluding the challenged hearsay.
- The Court ordered Potts to appear for public censure.

## Legal Principles

- A lawyer may not invoke confidentiality to counsel or assist a client in criminal or fraudulent conduct, including by exploiting a known material misunderstanding in settlement negotiations.
- When client conduct would constitute fraud, the lawyer’s duties may require corrective action notwithstanding client instructions to remain silent.
- A lawyer must disclose material facts to a tribunal when necessary to avoid assisting a client’s criminal or fraudulent act; submitting a settlement for court approval can trigger this duty when the tribunal would otherwise be misled.
- In attorney discipline proceedings, evidentiary exclusions are reviewed for abuse of discretion, and discipline may be imposed based on the documentary record and the lawyer’s conduct.

## Conclusion

The Montana Supreme Court publicly censured Potts for knowingly facilitating clients’ concealment of material estate assets in a court-approved settlement, holding that duties to avoid assisting fraud and to be candid with the tribunal override reliance on confidentiality when silence would help perpetrate fraud.


In re Potts, 158 P.3d 418 (Mont. 2007)