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When Great Falls, Mont., criminal defense lawyer Scott Albers was censured by the Montana Supreme Court in March and ordered to pay a $4,600 fine for falsely accusing a judge of bias in favor of the prosecution, he got so angry, he appealed to the U.S. Supreme Court. The case, ostensibly a spat between a trial judge and a defense lawyer, might have passed under the radar of the justices. But now an amicus brief in his support has been filed by a dozen legal heavyweights. Counsel of record include Hofstra University’s Monroe H. Freedman, Georgetown University’s Sam Dash and the University of Pennsylvania’s Geoffrey C. Hazard Jr. The organizations backing Albers include the National Association of Criminal Defense Lawyers and the Southern Center for Human Rights, with Stephen Bright as counsel. The petition says, “Effective assistance of counsel will be chilled by unwarranted and unfair disciplinary action against criminal defense lawyers, as has occurred to the Petitioner in the present case.” Also at issue is the constitutionality of Montana’s disciplinary system, which is unique in not having a paid professional staff. Albers, a solo practitioner, is challenging on due process grounds a system in which the Commission on Practice of the Supreme Court of the State of Montana handles a complaint at every stage of the process, acting as both prosecutor and judge. The state high court has considered changes in the system since 1993, when an American Bar Association task force recommended hiring a professional staff and abolishing the combination of investigative and adjudicatory functions. Because of the system’s closed nature, some suggest that it is an “old boy network” — and Albers is definitely not one of the old boys. He came to Montana in 1994 to become chief public defender for Cascade County. In 1997, he went into private practice. His case stems from a 1995 letter he sent to County District Judge Thomas McKittrick, asking the judge to recuse himself because he had granted an ex parte discovery order to the prosecutor. McKittrick responded by filing a 292-page complaint with the Commission on Practice. Although the commission dropped eight of the charges, Albers was found to have falsely accused McKittrick of bias and prejudice and to have made ex parte contact. The latter was an issue because Albers’ recusal request to the judge was not immediately given to the DA. A COURTROOM HARANGUE Albers denied the judge’s charges. In trying to cite evidence of the judge’s bias, he included a set of startling comments that Judge McKittrick had made to one of Albers’ clients, an American Indian. The petition quotes the judge as saying, “Why do you folks keep having kids? Do you know how babies are born? Do you know how they’re conceived? [Is it] a macho thing? [Is it] your alcoholism that forces you to have babies, huh?” The court considered Albers’s constitutional challenge, but rejected it in a 4 to 3 vote, and then endorsed the censure recommendation. Albers wound up with his many important friends after he contacted W. William Hodes, emeritus professor of ethics at the Indiana University School of Law, who pointed Albers to others who might help. Hodes said, “If Montana can do this, other states could and realistically the lawyers most likely to be harmed are the lawyers we need to represent people who otherwise would have difficulty getting representation.” R. Keith Strong, a partner in the Great Falls, Mont., office of Minneapolis’ Dorsey & Whitney, who was the court-appointed counsel representing the Commission on Practice, sees the brief differently: “It’s inaccurate, and it misstates the record.”

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