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Bar groups oppose bill to limit disciplinary referrals for elected attorneys
Summary
Senate Bill 49 would bar referrals to the Office of Disciplinary Counsel for certain elected officials who are attorneys when acting within official duties; the State Bar and other opponents said the bill would grant an improper ethics waiver and likely conflict with the Montana Constitution's allocation of lawyer regulation to the Supreme Court
Senate Bill 49, introduced in committee by Senator Barry Usher, would prevent referral to the Office of Disciplinary Counsel for certain public officials who also are attorneys when the conduct occurred "in the accordance of their duties" as elected officers. Usher described the bill as protecting speech by constitutional officers while acting in their official capacities and said it would not apply when the official is acting in a judicial proceeding or private legal practice.
The State Bar of Montana and several individual attorneys testified in opposition. Bruce Spencer of the State Bar told the committee that "lawyers should be ethical 100% of the time, not just when they're performing the duties of their public office," and argued the bill would create a public-policy problem and risk conflict with Article VII, Section 2 of the Montana Constitution, which allocates regulation of the practice of law to the Supreme Court. "I urge you no," Spencer told the committee.
Other opponents said the bill would allow elected officials who are attorneys to evade professional‑responsibility oversight when acting as public officials and could open the door to abuse. Mark Mackin, an attorney in private practice, said existing constitutional protections for legislative speech already provide broad protection and that the bill looked like a political favor that would remove accountability.
Senator Usher and supporters framed the proposal as limited immunity for speech in the course of public duties by constitutionally elected officials and said it was not intended to protect private legal practice or conduct in court. Committee members questioned whether the change would create separation‑of‑powers concerns or reduce ethical oversight; the sponsor answered that banning attorneys from the legislature would be inappropriate and that the bill was intended to preserve a "citizen legislature." No informational witnesses were recorded beyond public testimony, and no committee action or vote appears in the transcript.
