Gillham Petitions/Orders
Gillham Petitions/Orders, 2007 MT 98
Unknown opinion on April 18, 2007, in a 0 to 0 published opinion — 4 pages and 414 words .
Case
PR 06-0118
Opinion
majority
Majority
4 pages · 414 words
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Cited by
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Full text
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FILED
April 18 2007
Ed Smith
No.
CLERK OF THE SUPREME COURT
STATE OF MONTANA
PR 06-0118
IN THE SUPREME COURT OF THE STATE OF MONTANA I [
2007 MT 98
APR 1 & 2007
CODY WILLIAM MARBLE,
we
Petitioner ,
clerk ont Smith
)
)
)
v.
)
STATE OF MONTANA,
E D
STATE OF OREME COURT
OPINION
TANA
and
ORDER
)
)
)
Respondent.
q1
)
The Attorney General has requested that this Court clarify its decision in Petition of
Gillham, 216 Mont. 279, 704 P.2d 1019 (1985), to address the question of whether a district
court, as opposed to the Supreme Court, can issue a Gillham-type order.
q2
In Gillham, we held that when a convicted person files a petition for post-conviction
relief alleging inadequate assistance of counsel, the integrity of the fact-finding system
requires that his counsel assist the court in the administration of justice by admitting, denying
or qualifying the allegations of fact made by the petitioner.
Further, the petitioner, having
challenged counsel’s effectiveness, “has opened the gate to those portions of his revelations
to his attorney that affect his claims in his petition for post-conviction relief,” and is not in a
position to object on the grounds of privilege. We ordered that Gillham’s counsel respond to
the allegations and that if, in making said response, he necessarily revealed confidential
information from Gillham, counsel would “not be subject to disciplinary proceedings before
the Commission
of Practice of the State Bar of Montana,
nor subject to charges
of
malpractice.” Gillham, 704 P.2d at 1020.
{3
At the time of the Gillham
addressed to the Supreme Court.
decision, petitions for post-conviction relief were
Accordingly, the Gillham decision required that, if a
response from counsel were necessary, “the Attorney General shall first apply to this Court
for an order preserving such responding attorney from charges of discipline or malpractice
for revealing necessary confidential information from such convicted person.”
(Emphasis
added.)
44
Since
Gillham,
the post-conviction procedure
has changed.
Petitions
for post-
conviction relief are now initially filed in the district court rather than this Court. Section 4621-105(2), MCA.
Accordingly, we hereby clarify that Gillham motions may be filed in the
district court wherein the post-conviction proceeding is pending.
An attorney ordered to
respond pursuant to a Gillham order issued by a district court shall not be subject to
disciplinary proceeding before the Commission on Practice nor be subject to charges of
malpractice. This immunity extends to all information, testimony or documents necessarily
provided in response to the allegations of ineffective assistance of counsel.
DATED this
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of April, 2007.
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