Montana State Bar of Montana

LawyerJune/July 2017 | Vol. 42, No. 8

Federal Health Care Legislation Special report from Health Care Law Section looks at where legislation stands now and the battle that looms ahead

Also in this edition: > Rancher, lawyer, senator and 2006 Jameson winner Jim Moore dies at age 89 > 2016 Pro Bono Report: Montana attorneys give 120,000 hours, nearly $18M in services > Shaun Thompson, longtime chief disciplinary > Pro Bono Connect makes limited scope easy counsel at ODC, retiring this month Montana Lawyer 1

The official magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. 406-442-7660; Fax 406-442-7763. INDEX Email: [email protected] State Bar Officers June/July 2017 President Bruce M. Spencer, Helena President-Elect Leslie Halligan, Missoula From the Cover Secretary-Treasurer Health Care Reform: Where It Stands, What It Means ...... 18 Jason Holden, Great Falls Immediate Past President Matthew Thiel, Missoula Chair of the Board Feature Stories Juli Pierce, Billings Pro Bono: Attorneys Report 120,000 Hours of Service...... 12 Board of Trustees MLSA’s Pro Bono Connect Increases Ease of Limited Scope...... 14 Elizabeth Brennan, Missoula Brian C. Smith, Missoula David Steele, Missoula Risk Management: Joining a Nonprofit Board of Directors...... 25 Kaylan Minor, Kalispell Jessica Polan, Anaconda Thompson retires after 12 years at ODC...... 26 Channing Hartelius, Great Falls Paul Haffeman, Great Falls Kent Sipe, Roundup Luke Berger, Helena Regular Features Kate Ellis, Helena J. Stuart Segrest, Helena Member News...... 4 Christopher Gray, Bozeman Lynda White, Bozeman Court orders...... 6 Ross McLinden, Billings Eric Nord, Billings Law School News...... 8 Juli Pierce, Billings State Bar News...... 9 ABA Delegates Damon L. Gannett, Billings Montana Legal News...... 10 Shane Vannatta, Missoula Eli Patten, Billings In Memoriam...... 28

Montana Lawyer Staff Job Postings/Classifieds...... 30 Publisher | Christopher L. Manos Editor | Joe Menden 406-447-2200; fax: 442-7763 email: [email protected]

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Page 2 June/July 2017 President’s Message | President Bruce Spencer Our members have spoken, and the Bar is listening

I don’t know about you but I am a sucker activities for surveys. I am constantly driving my wife „„ Develop positive relationships between nuts with surveys on whether our marriage, bench and bar. love life, and kids are normal. I fill out the „„ Provide networking opportunities. customer service surveys from hotels and Not all is rosy, some areas where the State airlines. I even answer political polls (it’s fun Bar needs improvement are website design, to see how slanted the questions are and then its Lawyers Referral Service, and Section deliberately give the opposite answer). communication options. State Bar of Montana Recently the State Bar conducted a survey The State Bar Trustees met earlier this President Bruce Spencer of its own and I thought I would share some spring and conducted a strategic planning is a solo practitioner of the results. Once it’s cleaned up, the session. The Trustees felt the top roles of the survey results will be posted on the State Bar State Bar are: based in Helena. His website. „„ Advocacy for the profession practice areas empha- No surprise to me we are aging. Twenty- „„ Provide benefits to members size, governmental rela- five percent of State Bar members have been „„ Encourage networking, professional- tions, creditors’ rights, members for less than six years down from ism, and collegiality. commercial law, auto- 35 percent in 2014; 31 percent (down from 41 Surprising how this dovetails with the sur- motive law, percent in 2014) are under 40 and 51 percent vey result when the Trustees had not yet seen insurance law, and (up from 42 percent in 2014) are over 50. the survey. health care law. That’s me, so mind your elders! The State Bar is always seeking to improve Fifty six percent of respondents are in for its members. A newly redesigned website private practice with 41 percent of those indi- will be coming this fall. In conjunction with cating solo practice. We solos command the the ABA exciting new options for retirement world ! Mah Haaaaa. Sorry, airplane air has plans. New affinity agreements offering gotten to me. The figures do, however, refute discounts on products are arriving soon, as those who say the State Bar is dominated by well as opportunities for non- health-related “big firms.” Both Matt Thiel, immediate past benefit programs. A public lawyer task force president and myself are solos. On the na- will be issuing a report soon on how to make tional level Bob Carlson the ABA president- the State Bar more relevant to public lawyers. elect is focusing on solo and small firms. We hope to incorporate those ideas in the (Have you taken advantage of the screaming fall. New communications options for sec- deal on ABA dues through the State Bar?) tions and a new approach to lawyer referral The top State Bar activities were: and modest means representation are being „„ Providing a positive reputation for the considered as well. profession. I just want you, the members, to realize, „„ Provide information on areas of the State Bar is trying to work for you and practice provide value for your membership. Please „„ Provide support for access to justice let us know how we are doing.

The State Bar is trying to work for you and provide value for your membership. “ Please let us know how we are doing. ” www.montanabar.org Page 3 Member and Montana News

Crowley Fleck’s Missoula office introduces civil litigation in Montana and Washington state and federal Schultz as senior counsel in Missoula office courts. His extensive litigation background includes personal injury litigation, insurance defense, professional negligence Crowley Fleck, PLLP, has announced that Gregory Schultz claims, and commercial disputes. He is admitted to the State has joined the firm’s Missoula office as senior counsel. Bars of both Montana and Washington, as well as the District Schultz graduated from Yale University, summa cum laude, Courts of both states. in 1980, and received his law degree from Northwestern University School of Law in Farve & Brown Law opens firm with offices 1984. He has practiced law for 33 years and in Bozeman and Helena is licensed in the Arizona, Kansas, Missouri, and Montana. He has administered his Jennifer L. Farve and Abigail R. Brown, both formerly own law practice in Montana since 1998, of Moore, O’Connell & Refling, PC, have announced they concentrating on commercial and real estate opened Farve & Brown Law, PLLC, in January 2017 with of- transactions and litigation. fices in Bozeman and Helena. The firm serves clients through- He is affiliated with, and an instructor out Montana, and is a boutique firm specializing in land and Schultz to, the Montana Association of Registered water law related matters. Land Surveyors and the Montana Land Title Farve received her BA with academic Association. He holds a Martindale AV rating. Schultz will honors from Montana State University continue his commercial and real estate practice, with a particu- in Bozeman, and went on to receive her lar emphasis on land titles and title insurance. JD with honors from the University of Montana School of Law. She completed P. Mars Scott Law Offices welcomes Jason Scott a judicial clerkship with the Honorable Jim Rice of the Montana Supreme Court P. Mars Scott, P.C. Law Offices, located in Missoula, wel- before entering private practice in 2004. comes Jason M. Scott as an associate attorney. She practices extensively in real estate, with Scott’s practice emphasizes family law issues including com- Farve an emphasis on farm and ranch sales that plex marital dissolution and business organizations. extends statewide. She is licensed in both Scott is a 2016 graduate of the Santa Montana and Michigan. Jennifer manages Clara University School of Law, receiving the firm’s Bozeman office, which is located his Juris Doctorate degree. In 2011, Scott at 1276 N. 15th Ave, Ste 104, Bozeman, MT graduated from the University of Montana 59715. You can reach her in Bozeman by and received Bachelor of Science degrees phone at 406-219-0073 or email at jenni- in management information systems and [email protected]. marketing. While attending law school, he Brown received her BS from served as an editor on the Santa Clara Law Northwestern University in Evanston, Review, and as an editor for the Santa Clara Illinois. After completing her service in Scott Sports Law Symposium publication. Brown the United States Peace Corps in Malawi, He also interned with P. Mars Scott Africa, she moved to Missoula where she Law Offices, Terrazas Law Offices, and the Santa Cruz Public received her MA from the University of Montana and her JD Defender. with honors from the University of Montana School of Law. You can contact him at P. Mars Scott, P.C. Law Offices, 2920 Brown completed a judicial clerkship with the Honorable S. Garfield St., Missoula, MT 59801; 406-327-0600; or Jason. Patricia O. Cotter of the Montana Supreme Court before [email protected]. entering private practice in 2011. Her statewide practice is primarily in water law, both in adjudication cases before the Twidwell joins Hammer, Quinn & Shaw Montana Water Court and enforcement cases before state district courts. Abby manages the firm’s Helena office, which Hammer, Quinn & Shaw, PLLC, has is located at 7 W. 6th Ave, Suite 4B, Helena, MT 59601. You announced that Kevin Twidwell has joined can reach her by phone at 406-457-5494 or email at abby@ the firm. farvebrownlaw.com. Twidwell earned his B.A, with honors, For more information, please visit www.farvebrownlaw. from the University of Montana in 1987 com, and his Juris Doctorate, with honors, from the University of Montana School of Law in 1994. Twidwell has spent more than 19 years Twidwell representing individuals and businesses in

Page 4 June/July 2017 Member and Montana News

Elshoff wins Alpha Chi honor society’s litigation and criminal defense. ‘Favorite Professor’ award at Texas State Zotti’s association with Rocky Mountain Law Partners adds criminal defense as a new practice area for the firm. Zotti will Attorney Jim Elshoff was named focus his practice on criminal defense, with an emphasis on “Favorite Professor” by the Alpha Chi white-collar crime while also continuing the firm’s commit- National College Honor Society’s Texas ment to its commercial, business and real estate clients. State University Chapter. Elshoff, who moved to Texas in 2007, Achten joins Holland & Hart’s Billings office has achieved that award for five of the last seven years, as a professor in the School of Holland & Hart has announced that Becky Achten has Criminal Justice at Texas State University joined the Billings office as an employee benefits specialist in San Marcos. Elshoff is also in his third the Benefits Law Group. Achten comes to Holland & Hart with 25 years of experience in the financial Elshoff year as Teen Court judge for the city of San Marcos. services industry focused on retirement and benefit plan administration. Zotti joins Rocky Mountain Law Partners A certified retirement services profes- sional and an active member of the Institute Nicholas “Nick” O. Zotti has joined of Certified Bankers, Achten’s experience Rocky Mountain Law Partners, P.C. as its ranges from benefit plan administration, newest associate attorney. Zotti is a 2013 employee communications, to plan docu- graduate of Loyola University New Orleans ment reviews and amendments. Achten will leverage her expertise to help clients ensure College of Law. He completed his under- Achten graduate studies at the University of Kent, their plan documents are in compliance with Brussels School of International Studies, the Benefits Law Group’s recently launched Brussels, Belgium, and Millsaps College Qualified Plan Documents, Opinions, and Compliance service, in Jackson, Mississippi. He most recently which offers a legally approved plan document through a cus- Zotti practiced law in Seattle. His practice in tomizable service. Louisiana and Washington focused on civil

www.montanabar.org Page 5 Court Orders 2 February bar exam participants file grievances Two people who took the February on the written portion of the exam “were February exam. Scheveck says he was dis- bar exam in Montana and did not pass given unfair, inadequate, and inconsistent tracted by the disturbance and requests have filed petitions over the exam with reviews which resulted in grading errors.” that the court credit him with the 4.3 the Montana Supreme Court. Pabst said she failed the exam by one points he needed to pass the exam. The court ordered the Board of point. She petitioned the court to have The court gave the Board of Bar Bar Examiners to file responses to the the written portion of her exam reviewed Examiners 20 days to respond to each petitions. and regraded. petition; the orders were issued on May Caitlin T. Pabst filed a complaint with Lyndon Scheveck petitioned the court 12 and May 25, respectively. the court, alleging that her essay answers regarding a “disturbance” during the

DISCIPLINE Johnson asked the court to spare him the In December 2016, Braukman plead- “public shaming” and perceived elimina- ed guilty in Yellowstone County District Johnson disbarred after failing tion of employment opportunities the Court to felony criminal child endanger- to respond to complaints disbarment would cause. ment and aggravated driving while under In response, ODC said disbarment the influence. On March 6, the court The Montana Supreme Court dis- was justified in light of Johnson’s previ- imposed a three-year deferred sentence barred Billings attorney Roy W. Johnson ous discipline and because ODC had on the child endangerment charge and a on May 16. given him many opportunities to respond one-year sentence with all but three days Johnson, who was already on sus- to the complaints. suspended on the DUI charge. pension from a previous disciplinary proceeding, failed to respond to new Braukman placed on interim Small given public reprimand informal complaints filed with the Office suspension over convictions for unauthorized practice of law of Disciplinary Counsel (ODC) by two of his former clients. The Montana Supreme Court on May The Montana Supreme Court on May The Commission on Practice (COP) 23 ordered Billings attorney Michele 12 ordered a public reprimand for attor- recommended Johnson’s disbarment, Lynn Braukman to be placed on interim ney Andrew Small as reciprocal discipline noting his significant disciplinary history. suspension over her recent convictions for practicing law without a license in Johnson has received five public admo- on two criminal offenses. Minnesota. nitions, two public censures, and three The suspension is effective immedi- The Minnesota Supreme Court rep- suspensions. ately and pending final disposition of a rimanded Small, of Winona, Minnesota, Johnson testified at a hearing before disciplinary proceeding. in December 2016. According to an order the COP that he didn’t respond to the The court ordered Braukman to from that court, Small unconditionally complaints against him because he had answer the complaint within 20 days. A admitted to engaging in the unauthorized not decided whether he would seek hearing will be held to determine the full practice of law in Minnesota. reinstatement of his law license. In his extent of the final discipline Braukman Small is an Inactive Attorney member objection to the COP’s recommendation, will receive. of the State Bar of Montana.

406-683-6525 Montana’s Lawyers Assistance Program Hotline Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction .

Page 6 June/July 2017 Court News 4 apply for 7th Judicial District judge position Four attorneys have applied with the a six-year term. her service dog. Judicial Nomination Commission for an The position became open when the At trial, tenant Kristen Newman, her open 7th Judicial District judge seat. They Honorable Richard Simonton in April treating therapist and an independent ex- are: announced that he is retiring effective pert testified that the service dog assisted n Sally K. Hickok, Circle July 14. Newman in living with the symptoms n Olivia Rieger, Glendive of her disabilities. This includes pro- n Matthew S. Robertson, Great Falls Tenant who was charged viding emotional support, helping to n Cynthia K. Thornton, Glendive deposit for service animal gets predict migraines, and reducing suicidal The commission is soliciting pub- $37K verdict in federal trial thoughts. Newman also testified that she lic comment on the applicants until repeatedly informed Katz that charging Wednesday, June 28, at 5 p.m. The com- A federal jury in Butte returned a a deposit for a service animal was illegal mission will forward the names of three $37,343 verdict against a Bozeman land- and that Newman understood that she or four nominees to Gov. Steve Bullock, lord for charging a tenant with physical would have to pay for any actual damage who will appoint one. and psychiatric disabilities $1,000 to caused by her service dog. Nevertheless, Comment can be submitted by email have a service animal, the U.S. Justice Katz continued to levy this charge and, at to [email protected]; by phone at Department announced. one point, even threatened to terminate 406-841-2950; or in writing to: The lawsuit, filed in U.S. District Newman’s tenancy. The case arose out Judicial Nomination Commission, Court in Butte, alleged that Jaclyn Katz, of a complaint filed by Newman with the c/o Lois Menzies,Office of Court the owner and manager of rental proper- U.S. Department of Housing and Urban Administrator, P.O. Box 203005, Helena, ties in Bozeman, discriminated against a Development. MT 59620-3005. tenant with physical and psychiatric dis- The May 17 verdict includes $11,043 The position is subject to election in abilities by charging her a $1,000 deposit 2018. The successful candidate will serve as a condition for allowing her to keep COURT, next page Trusted, Tireless, Clever, Calm.

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www.montanabar.org Page 7 Law School News Wilson to intern at UN court in The Hague Hannah Wilson, a student at the persons suspected of closure, making this a once-in-a-lifetime Alexander Blewett III School of Law at planning, implemen- opportunity. the University of Montana, will be spend- tation, and execution Wilson is a Blewett Scholar and a ing her summer at a United Nations of the most serious member of the Montana Law Review. court in The Hague, the legal capital of violations of interna- She has focused her studies on interna- the world. tional humanitarian tional law, taking law courses in China, Wilson will be interning with the law that have occurred Singapore, and Mexico and completing International Criminal Tribunal for the in the territory of the her Advanced Writing Requirement on former Yugoslavia, helping to prosecute Wilson former Yugoslavia international law topics. Her career goals war criminals from the Yugoslav Wars. since 1991. The Office include working abroad, ideally in the The Office of the Prosecutor, where is wrapping up its field of international law, and eventually Wilson will be working, prosecutes final cases and transitioning toward becoming a Foreign Service Officer.

Zellmer to be Distinguished litigating public lands and wildlife issues the team’s appearance at nationals. Visiting Professor at UM for various federal agencies, including the The team is coached by adjunct faculty National Forest Service, National Park member Klaus Sitte who has been coach- Professor Sandra Zellmer will join the Service, and Fish and Wildlife Service. ing the team since 1990. Sitte teaches Alexander Blewett III School of Law for the Zellmer will supervise the Land Use & the Negotiation and Alternative Dispute 2017-18 academic year as a Distinguished Natural Resources Clinic and will teach Resolution courses at the School of Law. Visiting Professor. Public Lands in the fall semester and Water Zellmer, the Robert E. Daughtery Law in the spring semester. Law school ranked 15th in Professor of Law at the University of federal clerkship placement Nebraska, is a nationally recognized teacher Negotiation team invited to and scholar in the fields of natural resources, international competition The University of Montana’s Alexander water, public lands, Blewett III School of Law is ranked 15th wildlife, and environ- The Blewett School of Law’s ABA in the nation for placing new graduates in mental law. She is a Negotiation Competition Team will travel federal clerkships based on the percentage co-author of a leading to Oslo, Norway in late June to attend the of graduates hired as federal judicial clerks casebook on natural 2017 International Negotiation Competition over the course of the past three years. resources law, as well as hosted by the University of Oslo and the The law school placed 7.5 percent of its a hornbook on natural Norwegian Association of Lawyers. The graduates for the classes of 2014, 2015 and resources law. School of Law’s team of Frans Andersson 2016 in federal clerkships within 10 months Zellmer be- ‘17 and Kirsi Luther ’19 placed second of graduation according to the most recent Zellmer gan teaching at the among more than ninety teams in the na- ABA employment data. That percentage University of Nebraska tional competition earlier this year, earning exceeds federal clerkship placement for College of Law in 2003. She has also the invitation to Oslo. prominent national law schools such as the published dozens of book chapters and Teams from more than 30 countries University of Notre Dame (16th), Cornell articles, and was awarded “Best Paper” by will travel to Norway for the International University (19th) and New York University the American Bar Association for her work Competition this year. The competition, (23rd), and is fourth among all law schools on “Missouri River Mud: Clean Water and conducted in English, involves four rounds in the West, behind Stanford, California- Endangered Species,” which she presented of competition, with one four-party negotia- Berkeley, and California-Irvine. at the ABA’s Annual Water Law Conference tion. Andersson and Luther will see their According to the law school, the 2017 in 2011. skills tested, as they face teams with a wide class will an even higher placement percent- Zellmer has given presentations about variety of cultures and backgrounds. age than the tyhree-year average, as 9.6 water law and other related topics around This year’s entry into the International percent of 2017 graduates have reported the globe. She has also participated in Negotiation Competition is the second ap- federal clerkship positions. annual training sessions on wilderness pearance by a University of Montana team, Overall clerkship placement of Blewett management at the Arthur Carhart National continuing a tradition of success. In the past School of Law graduates is also extraordi- Wilderness Training Center in Missoula. decade alone, the team has appeared in the nary. For the past two graduating classes, Prior to teaching, she was a trial attorney national competition six times, following 25.6 percent of each graduating class se- in the Environment and Natural Resources nine appearances at regional final rounds. cured state or federal clerkships positions Division of the U.S. Department of Justice, 2017 marks the fourth consecutive year of within 10 months of graduation.

Page 8 June/July 2017 State Bar News Bar continues search for new executive director The State Bar of Montana continues Montana, with a budget of $1.8 million. The exutive director job is a salaried its search for a new executive director. The position is responsible for leading, position with a salary range of $90,000 to Applications will be accepted until managing and executing the affairs of the $105,000. A Juris Doctorate preferred but July 1, 2017, with a state date of Jan 2, organization. This includes implementing candidates with a Bachelor’s or Master’s 2018. policies, strategies and programs and pri- of Administration will be considered. Current Executive Director Chris orities approved by the Board of Trustees Direct letters of interest, inquiries and Manos announced in December that he is and overseen by an Executive Committee resumes to [email protected], or retiring after 16 plus years in the position. and the establishment and review of staff- call 406-447-2203 for details. The executive director supervises an ing and organizational structure in con- You can see a full job listing online at organization with over 6,000 members sultation with the Executive Committee jobs.montanabar.org. and a 15-member staff located in Helena, and the Board.

on proration of taxes in a condemnation May. Court, from previous page when she ordered a refund to Mountain The Honorable Heidi Ulbricht ruled Water and assessment of property taxes on May 25 that the Montana Department in compensatory damages for Newman, against the city. of Revenue was wrong to exclude such $20,000 in punitive damages for Justice Jim Rice, writing for the 7-0 students from the program. Newman, and $6,300 for Montana Fair majority, said the parties in the case had Kendra Espinoza, Jeri Ellen Anderson Housing, Inc., which assisted Newman read more into the statute than was actu- and Jaime Schaefer, whose children with her fair housing complaint. ally there. The statute simply established a attend Stillwater Christian School in “Persons with disabilities have the tax proration date that is more favorable Kalispell, challenged the rule with the right to live in and enjoy their communi- to condemnees than under general law, help of the Institute for Justice, a libertar- ties, just as all families do throughout and provided no additional or alternate ian public interest law firm. our nation,” Acting Assistant Attorney process to accompany this adjustment. “What a wonderful victory this is General Tom Wheeler of the Justice Rice wrote that it is common sense for all the families in Montana who Department’s Civil Rights Division said. that Mountain Water would retain have chosen private education for their “We commend the jury for recognizing responsibility for taxes until a taking children,” Espinoza said in a press release that the Fair Housing Act prohibits land- occurs. from the Institute of Justice. “We are lords from discriminating against persons “If a condemnation action is ultimate- thrilled and encouraged. This is going to with disabilities, and we will continue to ly unsuccessful and the owner does not make such a difference for all the parents work to eliminate discriminatory barriers lose possession of the property, then the who will now have the opportunity to in housing for persons with disabilities.” property tax obligation, along with the send, or continue to send, their children Utility responsible for property use and enjoyment of the property, would to the school of their choice.” have rightly remained with the owner The Revenue Department determined taxes until taking occurs, court during the litigation,” Rice wrote. in writing the rules that an institution finds in Mountain Water case controlled by any church or religious Judge: Revenue Department sect could not be considered a “qualified The Montana Supreme Court has was wrong to exclude religious education provider” for purposes of the ruled that the city of Missoula does not schools from scholarship scholarship. The agency argued that the owe property taxes accruing on a water state constitution does not allow appro- utility’s property during a pending con- Montana’s School Choice program priations to faith-based schools. demnation of the utility. can grant scholarships to students who Ulbricht, however, found that the pro- The ruling reverses Helena District attend faith-based schools, a Flathead gram is funded through tax credits, not Court Judge Kathy Seeley’s ruling that she County District Court judge ruled in appropriations, and the constitution does erred in her interpretation of state statute not address the use of tax credits. Attorneys: Do you have good news you want to share? Have you recently been recognized for contributions you we want to hear about it! Email [email protected] to make to the communities you serve? Is your firm raising be considered for inclusion in a future issue the Montana money or collecting food for charity? Are you a leader who Lawyer. is being recognized for advancing the legal profession? If so, www.montanabar.org Page 9 Montana Legal News Fox, 31 other AGs sign letter opposing elimination of LSC’s federal funding Montana Attorney General Tim Fox violence seeking safety, and assisted families is among 32 attorneys general who have facing foreclosure and victims of natural Legal Research brought to signed a letter urging Congress to oppose disasters. the proposed elimination of funding for “The legal services provided by LSC you by the State Bar Legal Services Corporation (LSC). are critical for low-income and vulnerable Colorado Attorney General Cynthia citizens in Colorado and for millions of All Active Attorney and H. Coffman and Massachusetts Attorney people across the country,” said Attorney Paralegal Section members of the General Maura Healey General Coffman. “As a bipartisan group of State Bar of Montana and mem- led the bipartisan group attorneys general we have joined together to bers of the Montana Magistrates in highlighting the need speak up for those people who need access Association have free access to the for legal services in to these services in order to protect their Fastcase legal research system. This rural and low-income rights.” exclusive member benefit provides communities across the The letter was signed by the Attorneys access to one of the largest law li- country are led by. General of Massachusetts, Alaska, braries in the world and a variety of In the letter sent American Samoa, California, Colorado, Montana legal materials, including to the U.S. Senate Connecticut, Delaware, District of case law, statutes, regulations, court Fox and the U.S. House Columbia, Hawaii, Idaho, Illinois, Iowa, rules and attorney general opinions, of Representatives Kentucky, Maine, Maryland, Minnesota, as well as a 50-state and federal legal Appropriations Committees, the attorneys Mississippi, Montana, Nebraska, Nevada, database. general noted that for more than 40 years, New Hampshire, New Mexico, New York, Fastcase offers three options under both Republican and Democratic North Carolina, Northern Mariana Islands, for webinar training hosted by a administrations, the LSC has helped veter- Oregon, Pennsylvania, Rhode Island, Fastcase attorney: Introduction ans and military families secure important South Dakota, Vermont, Virginia and to Fastcase, Boolean (Keyword) benefits, supported survivors of domestic Washington. Searching and Advanced Tips for Enhanced Legal Research. Winners named in MT federal courts’ high school civics contest If you have any technical ques- tions about Fastcase, visit Great Falls Central Catholic High During World War II not a single www.montanabar.org/?page= School freshman Trinity Holden is the Japanese American was proven AboutFastcase, email support@ first place winner in the U.S. District to be disloyal. The voluntariness fastcase.com or call toll free at Courts for Montana’s 2017 Essay and cooperation shown by those 866-773-2782. Contest. discriminated against was ultimately The district held the contest in con- their greatest act of loyalty. They gave June-July Webinars junction with its 2017 Law Day activities, up their businesses, their homes, with entries addressing the legal lessons their possessions, and ultimately their (All webinars 11 a.m. to 1 p.m. of the Japanese Internment during World liberty to prove their love for the MT. See the calendar at www.mon- War II. The district also held a video ideals that the rest of America forgot. tanabar.org for links to registration.) Thursday, June 1 – Introduction contest, with Alexis Giles of Fort Benton The legacy of Hirabayashi, to Legal Research on Fastcase High School taking first place. (See ad on Korematsu, and Endo is their Thursday, June 8 – Advanced facing page for more on the contest.) life-long fight to right the injustice Legal Research on Fastcase The top three entries in both the essay of internment, and the truth Thursday, June 15 – contest and the video contest received it uncovered. Without their Introduction to Boolean (Keyword) cash prizes. The top three essays also were commitment we would never have Searches Trinity Holden is the daughter of known that the internment was based Thursday, July 6 – Introduction Jason Holden, the State Bar of Montana’s on false information. I learned from to Legal Research on Fastcase Secretary Treasurer. their fight that meaningful judicial Thursday, July 13 – Advanced A short excerpt from Trinity’s essay is review, in times of uncertainty, is Legal Research on Fastcase printed below. The full essay is posted on the only act of courage capable of Thursday, July 20 – the State Bar of Montana website, www. defeating tyranny. Anything less will Introduction to Boolean (Keyword) montanabar.org, and at the District of not allow any of us to say, I am an Searches Montana website at mtd.uscourts.gov. American.

Page 10 June/July 2017 2017 Ninth Circuit Civics Contest

The United States Courts for the District of Montana are proud to announce the winners of the 2017 District of Montana civics contest. High school students from around Montana submitted video and essay entries addressing the contest's theme of "Not to Be Forgotten: Legal Lessons of the Japanese Intern- ment." The winners were selected by a panel of judges consisting of practicing attorneys and federal court personnel. The top three entries in each category will receive cash scholarships and go on to compete in the Ninth Circuit-wide competition, where they will have the opportunity to earn additional scholarship awards. A short excerpt from the first place essay, written by Great Falls Central Catholic High School freshman Trinity Holden, is printed on the opposite page. Each of the winning essay and video entries will be posted on the District of Montana website at mtd.uscourts.gov.

2017 Essay Contest Winners First Place Second Place Third Place Trinity Holden John Davies Heidi Froelich Great Falls Central Billings West High School Park City High School Catholic High School $1,000 $500 $2,000 2017 Video Contest Winners

First Place Second Place Third Place Alexis Giles Coya Nack Kaitlyn Bird Fort Benton High School Fort Benton High School Fort Benton High School $2,000 $1,000 $500

The scholarship awards for the Montana winners were made possible by generous donations from each of the following Montana law firms and legal organizations:

Goodrich Law Firm, P.C. State Bar of Montana - Bankruptcy Section Montana Defense Trial Lawyers Association American Board of Trial Advocates - Montana Chapter Montana Trial Lawyers Association Montana Chapter of the Federal Bar Association Crowley Fleck, PLLP Kovacich Snipes, PC Bishop & Heenan Law Firm Garlington, Lohn & Robinson, PLLP www.montanabar.org Page 11 Pro Bono | 20126 Report Montana attorneys report 120,000 hours of pro bono service in 2016 Montana Lawyer Staff „„ Among the highlights of this year’s report: „„ 1,301 attorneys reported 70,706 hours of free services The Montana Supreme Court and the State Bar of to people of limited means or organizations designed Montana are pleased to announce almost 1,600 Montana to help them. attorneys provided more than 120,000 hours of pro bono „„ 582 attorneys reported 15,284 hours of free services service to low-income Montanans across the state in 2016. to charitable, religious, civic, educational and other The value of pro bono legal services approaches $18 million. organizations. “Accessing our civil justice system by those without the „„ 461 attorneys reported 22,144 hours of pro bono financial means to pay for legal services is a guiding ethical service at a substantially reduced fee to people/families principle of Montana’s legal profession,” said Chief Justice of limited means. Mike McGrath. “Through these exceptional contributions, „„ 81 attorneys reported 15,284 hours of free services hundreds of low-income Montanans received critical legal to charitable, religious, civic, educational and other assistance at no cost. We are grateful to Montana’s attorneys organizations. for their deep commitment to working toward justice for 686 in-state attorneys reported 17,260 hours participating all.” in volunteer activities for improving the law, legal system or Pro bono services help fill the gap in unmet legal needs to legal profession. low-income clients most often in family law matters, includ- The report also included the following recommendations ing adoptions, guardianships, divorces, parenting plans and for the access to justice community to concentrate their ef- child support issues, including victims of domestic violence. forts in providing support for attorneys: Attorneys provide pro bono services to many other quali- „„ continue expansion of limited scope representation fying clients, including the elderly, military veterans and opportunities without diluting full representation at- organizations serving low-income individuals. torney resources; The information was gathered in conjunction with the „„ expand attorney training opportunities in the areas of State Bar’s annual Interest on Lawyers Trust Account certi- greatest legal need; fication. In this year’s survey, 1,561 attorneys reported pro „„ develop supportive non-attorney legal profes- bono hours. sional and law student modules for existing pro bono “The Montana Rules of Professional Conduct state that programs ‘[a] lawyer should render at least 50 hours of pro bono „„ create or expand mentor-mentee protocols and op- public legal services per year,’” Bruce Spencer, State Bar of portunities in pro bono programs; Montana President said. “Montana lawyers have stepped up „„ create programs to remove impediments to participa- to the plate and assisted those of limited means. This report tion in pro bono programs for government and public demonstrates that while meeting their ethical obligations, interest lawyers; Montana lawyers provide significant benefits to the public „„ update government agency pro bono policies to facili- and Montana’s judicial system.” tate pro bono participation.

Montana lawyers have stepped up to the plate and assisted those of limited means. “ This report demonstrates that while meeting their ethical obligations, Montana lawyers provide significant benefits to the public and Montana’s judicial system. ” Page 12 June/July 2017 www.montanabar.org Page 13 Montana Legal Services Association | Pro Bono Connect With MLSA’s phone-advice program, attorneys can do the Montana public good — in just 1 hour By ANGIE WAGENHALS bono services with small amounts of time, the impact on clients Montana Legal Services Association is significant. Phone advice provides critical legal advice to pro se litigants at key junctures. As a case progresses, litigants are faced Did you know that the average American adult spends one with an endless stream of new concepts, terms, protocols, and hour and 39 minutes a day on a smartphone? For many of us rules that are a product of a system intended to serve those who with busy and demanding schedules, that’s no surprise but the have counsel. Limited-scope legal advice is a critical stopgap at number is a good reminder of the sheer volume of time we these stages and ensures that pro se litigants understand their own spend engaging with our phones. At Montana Legal Services legal issues. Clients agree that the advice they received was helpful: Association (MLSA), we want to encourage you to utilize some an overwhelming 71 percent responded that the program helped of your smartphone time putting your legal expertise to work for them understand the next steps in their case and nearly 60 percent the public good. reported that advice helped them understand their rights and le- Attorney volunteer feedback helped MLSA to develop the gal options. The value of legal understanding is immeasurable and Montana Pro Bono Connect Phone Advice Project. Since its it all comes from donating just an hour of pro bono time. inception in November 2015, pro bono attorneys have served The Montana Pro Bono Connect Phone Advice project helps 370 clients with one hour over the phone advice on a host of legal bridge the gaps across Montana for low-income households issues including family law, wills and estates, housing law, and trying to access the justice system. It is a critical component in employment law. That is 370 fellow Montanans who would have ensuring that Montanans living in rural and frontier communi- never received legal assistance without the donation of time from ties have the same access to legal assistance as the folks living in a pro bono attorney. Missoula, Bozeman, and Billings. It provides the legal advice that The process is simple — volunteer attorneys choose the day, pro se litigants so desperately need to ensure that they have the time, subject matter, and frequency of their advice shifts, while best chance of advocating for themselves in a legal proceeding. MLSA staff deal with the scheduling. All applicants are screened Most importantly, it helps make our legal system more fair by for financial eligibility and matched with pro bono volunteers providing more legal services to our low-income neighbors, who based on their legal issue and the attorneys’ preferences. Most have a 1:12,133 ratio of legal aid attorneys to income-qualified cases scheduled for phone advice are simple enough that a pro se Montanans. litigant can move forward with just a little limited-scope assis- Please check your schedule. See if you can find one hour tance. MLSA provides the client’s case information in advance of this summer to donate critical legal advice to those who need it the appointments and the attorney can make the call from wher- most. It will make you feel good, it will be easy, and it will make ever they are. Volunteers can even access MLSA’s case manage- a difference to a fellow Montanan struggling to navigate our legal ment system to streamline information sharing. Once the hour system to protect their basic civil legal rights. It’s all good. To phone call is up, the attorney is done! It’s that simple. MLSA asks sign up, contact me at [email protected] or call 406-442-9830 for feedback on the advice provided and recommendations for ext. 148. follow-up and takes it from there. Angie Wagenhals is the Pro Bono Coordinator for Montana While the program makes it easy for attorneys to provide pro Legal Services Association.

Page 14 June/July 2017 The Montana Justice Foundation Board of Directors gratefully acknowledges the following donors for their support of the MJF and the access to justice cause.* Montana Justice Foundation Society of Justice

HON. WILLIAM J. JAMESON CIRCLE TRIBUTE GIFTS

These donor gifts, over the course of their lifetime, meet or exceed $10,000. IN MEMORY OF HON. KARLA M. GRAY

ALPS Because the Honorable Karla M. Gray did so much to support and further the Hon. Elizabeth Best mission of access to justice in Montana, MJF especially recognizes gifts made Boone Karlberg PC in her memory. Along with our supporters and other access to justice advocates Cok Kinzler Law across our state, we are saddened by the loss of this committed leader and Dyrud Law O ces, P.C. honored to continue to build on the legacy she created. Ed & Joyce Eck Hughes, Kellner, Sullivan, & Alke, PLLP Gerry Allen Brenda Gilmer Bob Rowe & Ila B. Dousmand Fund, Inc. Janice Bacino Gail Goheen Melanie Reynolds Garlington Lohn & Robinson Hon. Beth Baker Rick & Jane Hays Mary Sexton Matovich, Keller & Murphy PC Cheryl & James Ballard Rick & Betti Hill Molly Shepherd Robert & Bonnie Minto Sarah Bond Lamb & Carey Law Abigail St. Lawrence Mountain West Bank Michael Cotter Molly Litzen Douglas Dellwo & Mark Reing Hon. Patricia Cotter Matovich, Keller, & Murphy, PC Margaret Ulvestad Molly Shepherd Crowley Fleck Meredith McBurney Chris Wethern Hon. Karen Townsend Mark & Sheila Currie Jane Miller Nancy Lewis & People's Law Center Katherine R. Curtis Hon. Carolyn Ostby Bob Wight Williams Law Firm Mary Devlin Caitlin Overland John Ilgenfritz & Worden Thane, PC Sue Bartlett & Karla Painter Sheena Wilson Eugene Fenderson Hon. David & Linda Rice Niki Zupanic

The MJF gratefully acknowledges those who have made gifts in memory or in honor of colleagues, family, and friends. Bolded names are those being remembered or honored. HON. KARLA M. GRAY CIRCLE IN MEMORY OF IN HONOR OF David Logan Colin Stephens These donor gifts, over the course of their lifetime, range from $5,000-$9,999. J. Martin Burke John Ilgenfritz & Sheena Wilson George Dalthorp Hon. Beth Baker Diana Garrett Allan Karell Allan Baris & Karen Watts Robin Turner James E. Congdon Thomas & Ann Boone Ed Smith & Sta Doug & Dana Austin J. Martin Burke Katrina Wilson Martin Christensen, Fulton & Filz, PLLC Jean Bowman Colin & Nicole Stephens Bill & Anne Cole John & Sue Talbot Katrina Wilson Martin First Interstate Bank John Maynard Hon. Jerey Sherlock Foust Law O ce Michael Green & Kiely Keane Williams Holmes Patrick Sherlock Mark A. Smith Allan Karell Matt Thiel Mike Lamb Mark Smith Cynthia Thiel Chief Justice Mike McGrath Mark & Bobbie Bond Meghan Paddock Montana Legal Services Association Sarah Bond Cynthia Ford Moore, Cockrell, Goicoechea & Johnson P.C. Robert McCarthy Hon. Keith Strong Patricia Cotter Michele Robinson Robert & Mary Sullivan Robert & Marcia Rider Stockman Bank John J. Donohue Hon. Ralph & Corrine Kirscher Tarlow, Stonecipher, Weamer & Kelly, PLLC Ellen Donohue Robin Turner Tipp & Buley, P.C. Carolyn Squires Hon. Gordon Bennett Hon. Michael & Debra Wheat Matt Thiel Katrina Wilson Martin Hon. James Reynolds & Nicolet Whearty

To learn more about MJF and our work or to make a tax-deductible contribution, please visit us at www.mtjustice.org or contact us (406) 523-3920 | P.O. Box 1917 | Helena, MT 59624

www.montanabar.org Page 15 Gerry Allen Greco & Wozniak, P.A. Jane Miller Abigail St. Lawrence Kurt Alme Michael Green & Kiely Keane Laurie Miller Rebecca Stanfel Angora Ridge Foundation Joel Guthals Mark Miller Jennifer Studebaker Doug & Dana Austin Steve Harman Terry Minow Suenram & Bergeson Janice Bacino Rick & Jane Hays Robert & Bonnie Minto Robert & Mary Sullivan Hon. Beth Baker Hon. Joe & Marielaine Hegel Ted Mizner Bruce Swenson Cheryl & James Ballard Heggen Law Firm Moore, Cockrell, Goicoechea Susan Swimley Edward Bartlett Christopher Helmer & Johnson P.C. Melanie Symons Sue Bartlett & Eugene Richard Hildner Morrison & Frampton, PLLP John & Sue Talbot Fenderson Rick & Betti Hill Nancy & Alan Nicholson Tarlow, Stonecipher, Michael & Jeneese Baxter Terri Hogan Eric Nord Weamer & Kelly, PLLC Jeanne & RJ Bender Brian Holland John North Cynthia Thiel Hon. Katherine Bidegaray William Holmes Odegaard Braukmann Matt Thiel Law, PLLC Andrew Blewett Wendy Holton Autumn Thompson Robert Ogg Drew Blewett Kelly Hubbard Shaun Thompson Matt O'Neill Sarah Bond James Nugent Joel Todd Hon. Carolyn Ostby Boone Karlberg PC Je & Cristi Hunnes Margaret Tonon Kenneth Oster Thomas & Ann Boone Huppert, Swindlehurst Hon. Karen Townsend Stan & Glenda Bradshaw & Woodru Caitlin Overland Robin Turner Ann Brodsky John Ilgenfritz P. Mars Scott, P.C. US Bank Brad Brown & Sheena Wilson Karla Painter Janice VanRiper Mark Bryan Dave & Julie Jackson Fred Paoli Mike Weber J. Martin Burke Doug James Brad & Nancy Pickhardt Jeremiah Weiner Ashley Burleson Johnson, Berg & Hon. Jessica Pugrud Chris Wethern Saxby, PLLP Bob Carlson Richard Pyfer Hon. Mike & Debra Wheat Lawrence Johnson Chris & Helen Christensen Joe Racicot Van Wilgus Kristen Juras Christensen, Fulton & Marc & Theresa Racicot Mike Wellenstein Allan Karell Filz, PLLC Chris Ragar Williams Law Firm Karell Dyre Haney PLLP Mark Connell Babak Rastgoufard Katrina Wilson Martin Stuart Kellner Connors Law Firm Mark Re ing Dan Wilson Jean Kyle Michael Cotter Hon. James Regnier Jessica Weltman Mike Lamb Hon. Patricia Cotter Hon. James Reynolds Worden Thane, PC Lamb & Carey Law Virginia Court Melanie Reynolds & Anne Yates Kathryn & Martin Lambert Bob Rowe Scott Crichton Niki Zupanic Mark & Sheila Currie Arthur Lamey Hon. David & Linda Rice Katherine Curtis Constance Leistiko Kathleen Richardson Lon & Pam Dale James Lewis Robert & Marcia Rider Andrew Dana Nancy Lewis & Bob Wight Douglas Ritter The Montana Justice Douglas Dellwo & Molly Litzen Michele Robinson Margaret Ulvestad Don MacIntyre Frederic Robinson Foundation works to Mary Devlin Mark Mackin Peter Romatowski Romulo Diaz Kathleen Magone William Roscoe achieve equal access Ellen Donohue Charles Magraw Mike Salvagni Dyrud Law Oces, P.C. Lyle Manley Deborah Schaaf to justice for all Joyce & Ed Eck Jennifer Massman Nancy Sebena James Edmiston Carey Matovich Mary Sexton Montanans through Jerey Even Matovich, Keller & Murphy PC Martha Sheehy Crowley Fleck Max A. Hansen & Molly Shepherd e ective funding Cynthia Ford Associates, P.C. Robert Sheridan Damon Gannett Meredith McBurney Patrick Sherlock and leadership. Ann German Chief Justice Mike McGrath Tom Singer Brenda Gilmer McKenna & Starin Trial A.L. & Kimmy Skiftun Attorneys, PLLC Gail Goheen Mark Smith Daniel & Marcy McLean Graves & Toennis, P.C. Bruce Spencer Jim McLean Kyle Gray Sheri Sprigg

* Donor recognition re ects contributions made to the MJF Annual Gift Campaign between April 1, 2016, and March 31, 2017. Great eort has been taken to ensure the accuracy of the names listed, but should you nd an error or an omission, please accept our apologies and contact MJF at (406) 523-3920.

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www.montanabar.org Page 17 Federal Health Changes | Health Care Law Section

TrumpCare or ObamaCare? Why clients, taxpayers care

By KRISTY BUCKLEY Crowley Fleck

The U.S. House of Representatives passed the American Health Care Act of 2017 (AHCA, H.R. 1628, as amended) on May 4, by a vote of 217-213. Although that vote conjures up a sense of certainty, the path forward for repeal and replacement of the Affordable Care Act (ACA) remains extraordinarily uncertain. The enrolled version of the House AHCA Bill requires a vote by the U.S. Senate, which could decide to adopt the bill, amend the bill, or propose an entirely new bill. As of the writing of this article (May 24), sentiments are strong that the Senate will either significantly amend the bill or propose an entirely new bill. On a recent trip to Washington, D.C., I spent some time listening and learning from colleagues and commentators in D.C. and across the nation about the AHCA. The demarcation line between Republican and Democrat views was clear. Democrats focused their comments on various procedural objections under the Byrd Rule. Republicans focused their comments on the substance of the AHCA changes. In an effort to make this article as impartial as possible, we will first discuss the Byrd Rule and then discuss the substance of the AHCA changes in its current version. I. THE BYRD BATH THAT COULD DO MORE THAN RUFFLE A FEW FEATHERS As many of us know, a normal legislative bill in Congress can take months to pass because debate is un- limited, filibusters can happen, countless amendments can be added, and the bill must pass with a two-thirds vote. The AHCA, however, was not drafted as a nor- mal bill. It was drafted as a “reconciliation bill.” A reconciliation bill enjoys an expedited legislative process wherein debate is limited to 20 hours, it is not subject to filibuster, there are limitations on amendments, and it can pass with a simple majority vote. The reconciliation bill process spawns from the Congressional Budget Act of 1974 to assist Congress with enforcing budgetary laws.1

1 Titles I-IX of P.L. 93-344, as amended.

Page 18 June/July 2017 Now that the AHCA has moved over to the Senate, Section 313(b) of the Common Understanding for Byrd Rule Test Congressional Budget Act, also known col- n Provision must change a budget item. loquially as the Byrd Rule (after former Sen. n Provision must be in compliance with the fiscal year budget.6 Robert Byrd, D-W.Va), will prohibit the n Provision must be under the Committee’s jurisdiction. Senate from considering matters that are ex- n Non-budgetary items in the provision must be merely incidental. traneous to budget reconciliation. Although n The next fiscal year must remain budget neutral.7 the Senate parliamentarian has crafted the n Provision cannot change Social Security trust funds. Byrd Rule over time, there are many ques- tions about what constitutes “extraneous Byrd Rule Test matters” in the context of the AHCA provi- A provision is extraneous if such provision: sions, which will likely be tested in the weeks 2 n Does not produce a change in outlays or revenue, including changes in outlays and months to come. Any senator can and revenues brought about by changes in the terms and conditions under raise a point of order during consideration which outlays are made or revenues are required to be collected;8 of the AHCA, including in committees and n Produces an increase in outlays or decrease in revenues whereby the net effect conference reports. If the point of order is of the provisions fail to achieve reconciliation instructions; accepted by the Senate parliamentarian then n Is not in the jurisdiction of the Committee with jurisdiction over said title the provision or amendment is stricken3 n Produces changes in outlays or revenues that are merely incidental to the non- unless proponents offer a three-fifths Senate budgetary components of the provision; majority vote, or 60 votes, to keep the lan- n Increases (or would increase) net outlays, or decreases (or would decrease) guage inside the bill.4 revenues during a fiscal year after the fiscal year covered such bill and such The Byrd Rule consists of six tests and increases or decreases are greater than outlay reductions or revenue increases at least four exceptions. It is decided upon resulting from other provisions in such title in such year; and, by the parliamentarian of the U.S. Senate, n Contains recommendations with respect to the old-age, survivors, and disability currently Elizabeth MacDonough, through insurance program (OASDI, or just the portion of federal payroll taxes to cover a team of advisers in the Office of the 6.2 percent for Social Security for each of the employer and employee; but not Parliamentarian. The six Byrd Rule tests un- the 1.45 percent for Medicare). der Section 313(b)(1) of the Congressional Budget Act are described in the box at right. CBO report (with the Joint Committee II. THE AMERICAN HEALTH The Byrd Rule has four statutory on Taxation) on the AHCA concluded on CARE ACT OF 2017 – A exceptions. Byrd Rule exceptions must be March 13 (March CBO) that AHCA would certified by the Senate Budget Committee reduce federal deficits by a net of $150 SNAPSHOT AS OF MAY 24 Chairman (Mike Enzi, R-WY) and ranking billion in 2016-2017 due to new health cov- As an employee benefits attorney with minority member (Bernie Sanders, I-Vt.), as erage provisions. The March CBO report clients seeking clear guidance, I have well as the Chairman and ranking minority anticipated an increase of uninsured persons been extremely reluctant to write about member of the committee of jurisdiction.5 by 14 million in 2018, rising to 21 mil- current trending issues for ACA repeal/ The so-called Byrd Bath cannot com- lion in 2020, and 24 million by 2026. The replacement because speculation can be mence until after the Congressional Budget March CBO report further found a 15 to 20 dangerous and efforts wasted on a bill Office (CBO) releases its report on the percent increase in average premiums in the that will ultimately change are counter- final enrolled version of the House AHCA individual policy market before 2020, with productive.8 However, it became apparent as passed, with amendments. The first a subsequent decrease in average premiums to me that some employee benefits attor- to roughly 10 percent lower than under the neys are beginning to the sow the seeds of 2 Byrd Rule implications likely will be similar regard- current law by 2026. The new CBO report education about AHCA implications. I’ve less of whether the Senate uses the House AHCA was issued on May 24 (“May CBO”). It an- decided those efforts are worthwhile be- version or crafts its own version of the AHCA because ticipates a federal deficit reduction by a net cause the activities of the coming months there is a clear preference to pass ACA repeal/replace- of $119 billion in 2017-2016. The May CBO ment under the structure of a reconciliation bill. There could transpire quickly and we need to is no timeline for considering Byrd Rule requirements, report anticipates an increase in uninsured be getting ready with our strategies. This except that each objection can be given 2 hours of persons by 14 million in 2018, rising to 19 next section will review some of the key debate time. million in 2020, and 23 million by 2026. 3 Section 313(d)(2), Congressional Budget Act of 7 The jurisdictional rule is under Section 313(b)(1)(C) 1974, as amended. of the Congressional Budget Act of 1974, as amend- 4 Section 904(c)(1), Congressional Budget Act of ed. Section 313(b)(3) provides that a reconciliation bill 1974, as amended. 6 As some may recall, the Fiscal Year Budget includes will not be considered extraneous for jurisdictional 5 The US. House Committees with jurisdiction ap- a budget resolution from the Senate Budget Com- purposes if the bill could be referred to such commit- pear to be the (1) Energy and Commerce; and (2) mittee Chairman, Mike Enzi (R-WY), that was passed tee for special circumstances (e.g., for implementation Ways and Means. The U.S. Senate Committees with in January 2017 with reconciliation instructions to or to create an exception). jurisdiction appear to be the (1) Health, Education, La- adjust ACA spending and revenues to achieve at least 8 I heard at least one commentator describe this test bor and Pensions; and (2) Finance. The Chairman and $1 billion in deficit reduction over ten years (by each as budget neutrality over the entire 10-year period ranking member of Senate Finance are Orrin Hatch (R- chamber, Senate and House). The Senate voted Jan. that the Congressional Budget Office uses to review UT) and Ron Wyden (D-OR). The Chairman and rank- 12, 2017, with 51-48. The House voted Jan. 13, 2017, fiscal impacts for bills, which might be a reflection ing member of Senate Health and Eduction are Lamar with 227-198. of the budget reconciliation instructions passed in Alexander (R-TN) and Patty Murray (D-WA). January 2017. www.montanabar.org Page 19 implications of the AHCA.9 insurance issuers12 to impose a temporary an individual tax credit.14 12-month surcharge in an amount equal The current draft of the AHCA re- A. Essential Health Benefits to 30 percent of the monthly premium duces both of the large employer penalties One goal of the ACA was to prevent rate otherwise applicable if an individual described above down to zero, retroac- insurance issuers and self-funded health has 63 continuous days without health tively to all months beginning after Dec. plans from offering “skinny” plans that coverage. An individual is required to 31, 2015.15 were less expensive but without mean- demonstrate having creditable coverage As an adviser to many of the large em- ingful health coverage. Essential Health without a continuous gap of coverage ployers in our region, we found that large Benefits (EHB) were implemented to for 63 days. Although that gap is similar employer penalties were usually avoided, achieve that goal. Currently, EHB require to the HIPAA pre-existing condition resulting in zero or low costs for large that non-grandfathered plans cover: (1) exclusion framework, including creditable employers’ penalties. There were, how- ambulatory patient services; (2) emer- coverage certification rules that existed ever, very significant costs associated with gency services; (3) hospitalization; (4) pre-ACA, the draft AHCA is focused reporting obligations for large employers, maternity and newborn care; (5) mental more on the amount of premium that on IRS Forms 1094-C and 1095-C, the health and substance use disorder services can be charged (rather than rendering the associated system upgrades for tracking including behavioral health treatment; individual totally uninsured). employees and coverages offered, and any (6) prescription drugs; (7) rehabilitative Employers are watching the surcharge new contracts by large employers to out- and habilitative services and devices; (8) debate to determine how much more re- source the reporting and tracking obliga- laboratory services; (9) preventive and porting and disclosure obligations might tions. The current version of AHCA does wellness services and chronic disease be imposed if the AHCA passes, includ- not eliminate any of the large employer management; and (10) pediatric ser- ing how frequently creditable coverage tracking and reporting obligations.16 We vices, including oral and vision care. All assertions might be required. anticipate that large employers will be 50 states and the District of Columbia anxiously watching AHCA developments define coverages for EHB based on a C. Large Employer Mandate and to understand whether reporting obliga- state benchmark plan. Self-funded plans Penalties tions and tracking obligations will be nationwide have the ability to select any There are two different employer pen- alleviated.17 state EHB benchmark plan to use when alties that can apply to Applicable Large We further anticipate that removal 10 defining coverage. Employers (with 50 or more full-time em- of future large employer penalties could The MacArthur Amendment to the ployees or full-time equivalent employees, motivate some employers to reassess how current draft AHCA includes the ability generally known as “large employers”) they define benefit-eligible individuals of states to request a waiver of any of the under the ACA. First, a large employer (e.g., whether to define full-time employ- 10 EHBs, after 2020. If a state requests a must (1) sponsor an eligible plan; and (2) ees as those working 30 hours per week). waiver, such waiver can be in place for a offer the plan to full-time employees and However, certain eligibility standards period of up to 10 years. The state waivers their dependents or else pay a penalty will continue to apply (e.g., all employers, of EHB requirements are still being de- of roughly $2,000 per year per full-time regardless of size, are subject to the strict bated heavily. However, self-funded plans employee.13 Second, a large employer that limit for 90-day waiting periods). are paying close attention and wondering offers an eligible plan to full-time em- if plan designs could include dollar limits, ployees and their dependents must also including lifetime limits, on EHB cover- certify that the plan coverage (1) provides 14 IRC 4980H(b), indexed for inflation with $3,390 age items if the plan chooses a state EHB minimum value; and (2) is affordable, or 11 applicable for 2017, except that the penalty is cal- benchmark plan with EHB waivers. else pay a penalty of roughly $3,000 per culated on a monthly basis rather than an annual year per full-time employee who seeks a basis, certain exceptions can apply for employees in B. Temporary 30 percent a limited non-assessment period, and this penalty Surcharge is limited to equal the IRC 4980H(a) if the 4980H(a) 12 The current draft AHCA has specific language for penalty is less. The current draft AHCA allows “insurance issuers” and the premium rates allowable. 15 We anticipate that some large employers that As of today, it appears that self-funded group health paid these penalties for 2016 offers of coverage will plans might not be able to use a temporary 30% be quickly filing requests for refunds if the AHCA surcharge. The MacArthur Amendment to the AHCA passes. See AHCA Section 206. 9 Any terms that are capitalized in this Section have provides that states can apply for a waiver, beginning 16 IRC 6056. Since the reconciliation rules associated a very specific definition under either the ACA or the in 2019 (and 2018 special enrollment), and apply the with Byrd Rule requirements might limit Congress’ draft AHCA. The definitions can be found in the law 30% surcharge for individuals with a break in cover- ability to change IRC 6056, there has been speculation and are beyond the scope of this article. age of at least 63 days as well. about whether the reporting obligations could be ad- 10 Self-funded plans are not required to offer cover- 13 IRC 4980H(a), indexed for inflation with $2,260 ap- dressed directly by the Secretary of Treasury. age consistent with the EHB standards. However, if plicable for 2017, except that the penalty is calculated 17 During informal comments by the IRS at the mid- the self-funded health plan does offer coverage for an on a monthly basis rather than an annual basis and year American Bar Association Tax Section meeting in EHB item, then it is not allowed to place a dollar limit certain exceptions can apply regarding the percent- Washington D.C., May 12, 2017, we were repeatedly on the EHB covered and must offer the coverage con- age of people who receive an offer of coverage and told by the IRS to not read too much into the Presi- sistent with a state EHB benchmark plan. for employees in a limited non-assessment period. dential Executive Order from Jan. 20, 2017, and that 11 The ability for self-funded plans to select any state Further, IRC 4980H penalties (both subpart (a) and (b)) taxpayers should continue to file tax returns as they EHB benchmark is written directly inside the ACA law, only apply to the extent that an individual employee normally would. See also, IRS comments at https:// but more importantly, the concept is also described in secures individual exchange insurance coverage and www.irs.gov/tax-professionals/aca-information-cen- the Preamble. applies for an individual tax credit. ter-for-tax-professionals, visited May 17, 2017.

Page 20 June/July 2017 D. Overall ACA Penalties for All Human Services, through its Centers for credit requirements28, but it gener- Employers Medicare and Medicaid Services (CMS), ally applies on a sliding scale based on All employers, regardless of size,18 are recently issued a letter that proposes less a household income range from 100 subject to an overall ACA penalty that use of the HealthCare.gov website and percent of the federal poverty line (full can be assessed at a rate of $100 per day greater use of private brokers and insur- credit) to up to 400 percent of the federal ance companies, targeting Jan. 1, 2018, poverty line (credit fully phased out). For of non-compliance “with respect to each 22 individual to whom such failure relates.”19 effective plans. one person in 2016, 400 percent of the federal poverty line was approximately Non-compliance means any failure to F. Individual Mandate and comply with the laws governing group $47,000 per year ($63,720 for a family of Penalties health plan requirements. The current two). The credit itself is calculated based draft of the AHCA does not address One of the hotly litigated issues on the difference between the individual surrounding the ACA was the individ- contribution and the premium. overall ACA penalties. We anticipate that 23 employers will become more cognizant of ual mandate. The individual mandate The current draft of the AHCA makes the overall ACA penalties and we remind requires individuals to maintain mini- several changes to the individual refund- employers to continue to maintain com- mum essential coverage, for each month, able tax credit. First, an individual is pliance with group health plan laws. for the individual and the individual’s not eligible for the tax credit if he or she dependents. The penalty for noncompli- is eligible for any employer-sponsored E. Small Employer Tax Credits ance is either a percentage of the person’s health coverage (eliminates Affordability Currently a small employer can household income in excess of the return and Minimum Value factors). Second, receive a tax credit if it has (1) 25 or fewer filing threshold [for 2017, 2.5 percent of the sliding scale calculation for federal full-time equivalent employees20; (2) income above the threshold24] or a flat poverty line requirements will not apply average annual wages that do not exceed dollar amount [for 2017, $695 per adult for taxable years beginning after Dec. 31, approximately $51,000, indexed; (3) or $347.50 per child, and $2,085 family 2017, and before Jan. 1, 2020. Instead, the payments by the employer at a uniform maximum], whichever is greater.25 tax credit will use a sliding scale based on premium payment of not less than 50 The current draft of the AHCA modified adjusted gross income, phased percent; and (4) purchased a qualified reduces the individual mandate penalty out for income starting at over $75,000 health plan through the Small Business described above down to zero, retroac- for a person filing single.29 Third, the Health Options Program (SHOP) mar- tively to all months beginning after Dec. credit will not be available if the individ- ketplace for small employers. 31, 2015.26 ual exchange insurance policy includes The current draft AHCA makes two coverage for abortions, for taxable years G. Individual Tax Credits 30 changes for small employer tax credits. beginning after Dec. 31, 2017. Fourth, First, the tax credit will no longer be The ACA provides individuals with the credit is not determined based on a refundable tax credit, also called a actual premiums paid, it is a straight available for SHOP coverage that includes 27 coverage for abortions.21 Second, the tax subsidy, in certain circumstances. An age-banded sliding scale.31 Fifth, the tax credit will not apply after Dec. 31, 2019. individual is not eligible for the tax credit credit is available regardless of whether The SHOP marketplace had one of the if he or she is eligible for Affordable, an individual purchases the insurance on rockiest starts of all ACA-implemented Minimum Value, employer-sponsored the exchange.32 items, at first crashing on the HealthCare. health coverage. There are several tax We anticipate that employers and gov website and then only being available 28 The tax credit is available for individuals that: (1) for the first 12 months if a small employer have a certain household income range; (2) do not filed a paper copy application by mail. 22 CMS Letter, dated May 15, 2017, at: https:// file as Married Filing Separately; (3) cannot be claimed The topic of smooth SHOP enrollment www.cms.gov/CCIIO/Resources/Regulations-and- as a dependent by another person; (4) have health Guidance/Downloads/The-Future-of-the-SHOP-CMS- insurance from the individual exchange marketplace; procedures continues to garner atten- Intends-to-Allow-Small-Businesses-in-SHOPs-Using- (5) are not eligible for Medicaid, Medicare, CHIP, or tion. The U.S. Department of Health and HealthCaregov-More-Flexibility-when-Enrolling-in- TRICARE; and (6) pay a share of premiums not covered Healthcare-Coverage.pdf, visited May 18, 2017. Some by an advance credit. 18 The overall ACA penalty applies to all employ- news sources inaccurately reported the CMS Letter as 29 See AHCA Section 215(c). ers except those offering “governmental plans.” The though SHOPs were going to disappear altogether. 30 The definition of abortion coverage has a nu- overall ACA penalty applies to employers offering CMS issued two additional letters during the week anced background. Policies may cover abortions nec- “church plans.” of May 15, 2017, which indicate an intent to structur- essary to save the life of the mother or any abortion 19 IRC 4980D, subject to certain minimum and maxi- ally change HealthCare.gov for individual coverage with respect to a pregnancy that is the result of an act mum excise tax thresholds. as well. of rape or incest. Further debates include concepts 20 Note that “full-time equivalent” employees for 23 IRC 5000A. about “medically necessary” abortions versus “elective purposes of the small employer tax credit is defined 24 The applicable income filing threshold is based abortions” and the general notion that federal tax very differently than full time equivalent employees on filing status and age, ranging from gross income credits are not available for policies that cover elec- for purposes of determining Applicable Large Em- excesses of $10,350 up to $23,200. tive abortion. Nothing prohibits an individual from ployer status. 25 IRC 5000A(c). Total penalty is capped at the na- securing separate abortion coverage, provided that 21 See a later footnote regarding abortion coverage tional average premium for a bronze level health plan no tax credit is offered for such separate coverage. in the context of individual tax credits. The definition available through the exchange. 31 See AHCA Section 215(c). of abortion coverage is nuanced and continues to be 26 See AHCA Section 205. We anticipate that CPAs 32 See AHCA Section 202(a)(1)(A). If there is no the subject of debates. The apparent legislative intent may experience an increase in filing amended Form enticement (individual subsidy) to offer insurance is to follow the so-called Hyde Amendment, which 1040s for the 2016 taxable year for individuals who policies on the individual exchange, many are won- bars use of federal funds to pay for certain types of will be seeking a refund for penalties paid. dering whether fewer insurance companies will offer abortions. 27 IRC 36B. exchange policies. www.montanabar.org Page 21 Page 22 June/July 2017 employees alike will be watching AHCA carefully with respect to the reporting Modified Adjusted Gross Income Thresholds and certification obligations. The AHCA The example charts below (one for single filing status and one for married filing would require an employee to obtain jointly status) show the modified adjusted gross income (MAGI) thresholds, phased a statement from his or her employer out using different scenarios to illustrate age-banding and filing status. to determine whether the employee has been offered employer-sponsored Single, Age 35, MAGI Single, Age 29 Single, Age 61 health coverage in connection with their 2 Dependents employment.33 Some professionals are wondering how often an employer might $75,000 $2,000 $4,000 $6,500 be required to make such statements and $85,000 $1,000 $3,000 $5,500 whether the obligation will be ongoing throughout the entire taxable year. In ad- $95,000 $0 $2,000 $4,500 dition, there is a new proposed reporting $105,000 $0 $1,000 $3,500 obligation under the AHCA that would require employers to report on Form $115,000 $0 $0 $2,500 W-2 “each month with respect to which $125,000 $0 $0 $1,500 the employee is eligible” for employer- sponsored health coverage.34 $135,000 $0 $0 $500 Below is a chart of the allowable cred- $145,000 $0 $0 $0 its, age-banded (age measured as of the $155,000 $0 $0 $0 beginning of the taxable year). At right are two example charts of the modified Married, Married, Married, Both 35, adjusted gross income thresholds MAGI Both age 29 Both age 61 2 Dependents $150,000 $4,000 $8,000 $9,000 Credit (stated Age Annually; calculated $160,000 $3,000 $7,000 $8,000 Monthly)4 $170,000 $2,000 $6,000 $7,000 Under $180,000 $1,000 $5,000 $6,000 $2,000 30 $190,000 $0 $4,000 $5,000 30 - 39 $2,500 $200,000 $0 $3,000 $4,000 40 – 49 $3,000 $210,000 $0 $2,000 $3,000 50 – 59 $3,500 $220,000 $0 $1,000 $2,000 60 and $4,000 $230,000 $0 $0 $1,000 Over $240,000 $0 $0 $0 H. Account-Based Health Benefits: HSAs, FSAs, HRAs maximums that can apply to high deduct- correspondingly requiring an HRA be ible health plans. The AHCA further con- “integrated” with an employer-sponsored Health Savings Accounts (HSAs) have templates an account set-up grace period health plan that satisfies the coverage several component features that could that would permit reimbursements with mandates (e.g., first dollar preventive care change under the current draft AHCA. HSA dollars for expenses incurred dur- coverage). The AHCA is silent regarding Notably, the annual contribution limits ing the initial 60 days of high-deductible general HRA structure, which means it are almost doubling and have been set health plan coverage provided that the leaves HRA group health plan restrictions to mimic the total annual out-of-pocket HSA is established within the 60-day intact. For reimbursements, the AHCA period. proposes to allow all over-the-counter 33 See AHCA Section 215(b). Health Flexible Spending drug expenses for HRAs. Further, the 21st 34 Discussions are starting to surface about the im- plications for using Form W-2 rather than modifying Arrangements (Health FSAs) would have Century Cures Act (passed in December the existing health coverage reporting on Forms 1094 at least two features from pre-ACA that 2016) created a Small Employer Qualified and 1095. If the reporting remains on Form W-2, the might come back again: HRA, or QSEHRA, that entitled small codes could be fairly complicated in order to capture The ACA made several changes for employers to a new tax credit. The cur- several variations of month-to-month coverage of- fers. If the reporting shifts to Forms 1094 and 1095, Health Reimbursement Arrangements rent draft AHCA disallows QSEHRA the employers who already invested significantly in (HRAs), such as formally defining tax credits if the plan pays for abortions, resources and tracking to complete the original forms an HRA as a group health plan and effective Dec. 31, 2017. should anticipate substantial form changes. www.montanabar.org Page 23 I. Other Taxes and Credits There are a few other taxes and credits Health Savings Account Comparison that have been getting attention with the AHCA. Most of these are loosely consid- Current Law Draft AHCA ered negotiating items or issues that can Annual Contribution Limit, be added or dropped to achieve budget $3,400, indexed $6,650, indexed neutrality. Self-Only Coverage COBRA Subsidies: The AHCA was Annual Contribution Limit, originally proposed to include tax credits $6,750, indexed $13,300, indexed Family Coverage to pay for COBRA coverage that is un- subsidized. The COBRA subsidy language Only allowed for the Allowed for both account- was removed in a subsequent manager’s Catch-Up Contributions amendment to the AHCA, but it remains a account-holder holder and spouse negotiating chip for future discussions. Age-Banded Rating Ratio: The AHCA Only allowable if includes a change to the allowable differ- Over-the-Counter Drugs under a prescription Allowable expense ence in age-banded rating. The ACA only (except insulin) allows a 3-to-1 ratio difference between Distribution Tax for Non- 20% tax rate 10% tax rate (effective 2017) the premiums for the youngest person and Medical Expense the oldest person on a particular policy. The AHCA increases the age-band ratio to 5-to-1 for those states that request the increased ratio, for plan years beginning Flexible Spending Arrangement Comparison on or after Jan. 1, 2018.35 Cadillac Tax Delay: The largely un- Pre-ACA Current Law Draft AHCA popular ACA Cadillac Tax36 is currently Annual No limit (after under a temporary delay. It is no surprise Contribution No limit $2,500, indexed 12/31/2017) that the AHCA also delays the Cadillac Limits Tax, to Jan. 1, 2025.37 There seems to be Only allowable if under support on both sides of the aisle for some Over-the-Counter Allowable Allowable a prescription (except type of delay with the Cadillac Tax, but Drugs expense expense not complete repeal, because it continues insulin) to play a role in balancing out the 10-year budget neutrality goal. Net Investment Income Tax: As of Jan. 1, 2013, the ACA includes a 3.8 percent tax on net investment income items for calendar years beginning on Jan. 1, 2017.39 beginning after Dec. 31, 2017.41 individuals with modified adjusted gross Medical Device Tax: The ACA Individual, Itemized Medical income above $250,000 (married filing includes a 2.3 percent tax on the sale of Expenses: Individuals who qualify for jointly). The taxed items include interest, medical devices. The current proposed federal income tax itemized deductions dividends, capital gains, rental income, AHCA repeals the medical device tax, ef- have historically been required to satisfy a royalty income, and certain passive activi- fective for sales after Dec. 31, 2017.40 floor of 7.5 percent of a person’s modi- ties. The current proposed AHCA repeals Medicare Additional Tax: As of fied adjusted gross income before being net investment income tax, effective for Dec. 31, 2012, the ACA includes an entitled to itemized deductions for medical taxable years beginning after Dec. 31, additional Medicare tax of 0.9 percent, expenses paid out of pocket. Effective as of 2016.38 assessed on taxable earned income in Jan. 1, 2013, the ACA changed the item- Health Insurance Tax: The ACA excess of $250,000 (married filing jointly). ized medical expense floor to 10 percent of includes a health insurance tax (HIT), Technically, the Medicare portion of pay- a person’s modified adjusted gross income. calculated based on a health plan’s gross roll taxes has historically been established The current draft AHCA, through a man- premiums over $25 million. The current at a rate of 1.45 percent. The ACA change ager’s amendment, includes a change to proposed AHCA repeals HIT, effective for implemented a rate of 2.35 percent for the itemized medical expense floor to 5.8 high-income earners. The draft proposed percent, for taxable years beginning after 35 See AHCA Section 135. 36 Cadillac Tax, as originally set forth under the AHCA reverts Medicare taxes back to Dec. 31, 2016.42 ACA, would impose a 40% excise tax on the value pre-ACA status, at just 1.45 percent for all of employer sponsored plans exceeding $10,200 for income earners, effective for taxable years individuals and $27,500 for family coverage, indexed for inflation. HEALTH, page 29 37 See AHCA Section 207. 39 See AHCA Section 222, see also manager’s 38 See AHCA Section 251, see also manager’s amendment for new effective date. 41 See AHCA Section 214. amendment for new effective date. 40 See AHCA Section 211. 42 See AHCA manager’s amendment #5.

Page 24 June/July 2017 Risk Management Serving on a nonprofit board can be fun and rewarding — but don’t ignore the risks Mark Bassingthwaighte, Esq. they play out in this setting. At the outset, many of the concerns ALPS Risk Manager I’m about to discuss can be easily avoided if you limit your participation to serving solely as a director and commit to never Look, I get it. An opportunity to sit on the board of a local giving the nonprofit any legal advice, other than perhaps iden- nonprofit is finally yours for the taking. Better yet, it’s a chari- tifying situations where legal advice should be obtained. While table cause you strongly believe in, the opportunity will allow not completely risk free, this approach will help minimize the you to get your name out there, and one would expect that the concerns. new contacts made will lead to new clients down the road. Your Regardless, the reality is many attorney-directors will wear desire is to accept because the bottom-line is you will be able to two hats by agreeing to serve as a board member and to provide give back to the community in a meaningful way in exchange legal advice and/or services to the nonprofit. The consequence for the marketing and business benefits of your donated time. of making this decision is that the issues of independence, con- Works for me as long as you remember our flicts of interest, and attorney-client privilege ethical rules are in play and, as a director of a must now be addressed. We’ll start with a few nonprofit, so too are certain duties. questions. What if you are asked to put your Before discussing the consequences of attorney hat on for the purpose of taking an ac- accepting this opportunity, let me share one tion on the nonprofit’s behalf related to an issue thought that can make life so much easier. Now that“ you that you opposed while wearing your director Sitting on a nonprofit board starts to get messy hat? In short, how can you as an attorney-di- when the attorney board member wears two know what you rector maintain professional independence and hats. In a number of situations the nonprofit need to think responsibly voice objections while serving on is seeking attorney board members because about, go for it. the board of a client? Navigating these waters the board hopes to have the attorney handle can be problematic to say the least; but let’s cut a little legal work on a pro bono basis. There Go out and make to the chase. Never allow yourself to become is an obvious solution here that allows you to the world a bet- a rubber stamp for the decisions of the board avoid so many of the issues I’m about to discuss. because sometimes what’s good for business Keep it clean. Say no to sitting on the board and ter place. Serving doesn’t jibe with what the law requires. offer to serve as outside counsel on a pro bono on a nonprofit Now let’s add conflicts into the mix. Can basis instead. The opportunity to give back to board really can you vote as a director on your own legal advice? the community remains and you have not lost I would encourage you not to; but wouldn’t the marketing and business benefits of being be a fun gig. abstaining from voting as a director be a dis- involved with the nonprofit. service to the nonprofit, particularly if this were That said, the title of board member is entic- to occur on a regular basis? What if the board ing so let’s talk about the issues and we’ll start decides to sue another client of your firm? What with your duties. The duties of an attorney-di- if you make charitable donations to the non- rector are codified in some states and arise from profit and shortly thereafter you are hired by the common law obligations in others. There are duties of care,” board? While having some type of conflict of interest policy in loyalty, and obedience and be aware that the attorney-director place with the board can help – and I would strongly encourage will often be held to a higher standard than non-attorney direc- you to see this is done – it will be an imperfect solution. tors due to the fact that he or she is an attorney. At its most And finally, the attorney-client privilege problem. As an basic level, the attorney-director must be willing and able to attorney-director many of your conversations will include devote sufficient time and attention to the matters of the non- business and legal advice. How will others know when are you profit in order to ensure that all duties and responsibilities are wearing your attorney hat and when are you wearing your discharged in good faith. In addition, the director must always director hat? While you may try to address the problem by act in the best interests of the nonprofit as well as be obedient specifically noting in board minutes that your advice is strictly to the organization’s founding principles. Stated another way, legal advice, if non-privileged business advice is also part of the directors of nonprofits can be sued by donors for failing to hold discussion you haven’t accomplished much. Making matters true to the nonprofit’s mission. I share all this because the deci- worse, there can be confidentiality problems because outside sion to sit on a nonprofit board is one not to be taken lightly. donors may have certain rights to review the board minutes As a risk management and ethics guy, however, I’m more concerned about our rules of professional conduct and how NONPROFIT, page 29 www.montanabar.org Page 25 Feature Article | Attorney Profile Thompson retiring after 12 years as chief disciplinary counsel at ODC By JOE MENDEN Montana Lawyer

Chief Disciplinary Counsel Shaun R. Thompson has been at the helm of the Office of Disciplinary Counsel (ODC) for most of the office’s existence. At the end of this month, Thompson will hand over the reins to a new chief. Thompson, 65, recently informed Chief Justice Mike McGrath that he will retire after 12 years in the position, effec- tive June 30. Thompson was appointed disciplinary counsel by the Montana Supreme Court in July 2005, three years after ODC’s inception. Some things about working at ODC are inherently difficult, he said – mainly dealing with some unpleasant people, some of them complainants and some at- Shaun Thompson, who has been chief disciplinary counsel at the Office of Disciplinary torneys. Still he has enjoyed his time there. Counsel since 2005, is retiring effective June 30. “I would like to think that ODC, over the years I’ve been here, has improved January. He is still considering whether offices in downtown Helena; the profession and protected the public,” to continue his legal career, which has „„ petitioning the court for an assess- he said. “It’s a work in progress. You spanned 40 years. ment increase, which was granted; can never be complacent or completely Thompson’s accomplishments during and satisfied, but I believe during my tenure, his tenure at ODC include: „„ increasing staff from three per- the office now has stability, and the staff „„ processing nearly 4,000 grievances, sons to six, including Deputy functions well. I’m pleased overall with prosecuting cases resulting in 180 Disciplinary Counsel Jon Moog. where we’re at. There’s always room for orders for sanctions or transfers “To the extent I accomplished anything improvement. to disability inactive status involv- during my tenure, it was a team effort by “On a more personal note, I enjoy the ing 123 attorneys (30 of those were the entire ODC staff,” Thompson said. interaction with ODC staff. I’ll miss that.” sanctioned multiple times; 26 at- And for every unpleasant person he’s Thompson said he weighed the usual torneys were disbarred); dealt with, he said, he has met many more factors people look at when considering „„ initiating or participating in ex- great people. retirement. But a big part of the decision tensive revisions to the Montana “I would like to thank the court for the is that it will give him more time to visit Rules for Lawyer Disciplinary opportunity to serve the legal profession his kids. His two sons live in Washington, Enforcement. and the public. I believe being disciplin- D.C., and Los Angeles. The oldest has two „„ winning the 2016 Frank I. Haswell ary counsel has given me the opportu- of his own children, one who was just born Award for outstanding article in nity to not only render a public service this spring. the Montana Lawyer magazine; but allowed me to meet a lot of people I “The bottom line is, whatever quality „„ negotiating a Memorandum of wouldn’t have normally met and to do time I have left, I don’t want to spend it Understanding with the State Bar of things I wouldn’t have had the chance to sitting in an office,” he said. Montana to resolve boundary issues do if I hadn’t been disciplinary counsel.” Thompson intends to take time off, between the two entities; Joe Menden is editor of the Montana travel, and visit family – he says he just „„ moving out of the Court Lawyer. You can reach him at 406-447-2200 booked a trip to the Cayman Islands in Administrator’s Office into private or [email protected].

Page 26 June/July 2017 ROADSHOW Friday, June 23 Holiday Inn Great Falls 1 to 4 p.m. 3 FREE ETHICS CLE!

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REGISTER AT MONTANABAR.ORG QUESTIONS? [email protected] www.montanabar.org Page 27 In Memoriam Moore, longtime rancher, lawyer and 2006 Jameson Award winner dies at age 89 Perry James Moore III, the 2006 win- highest values of the legal profession. ner of the State Bar of Montana’s William Jim served three sessions in the Senate J. Jameson Award, died in Bozeman on and was selected by his colleagues as the May 19. He was 89. Republican Minority Leader for his last Moore, who was called “Jim” through- two. People admired his ability to listen out his life, was born on Dec. 21, 1927, and deliver measured but direct respons- in Lewistown. He lived most of his life es in a discussion, a trait that he passed on the family ranch in Two Dot, finding on to his children. He had an interest in time to study the law and pass the bar all hearing other people’s stories and never while managing the ranch and raising a failed to say in his crisp way, “Well, tell family. me about yourself.” He loved talking Jim finished elementary school at the politics with his brother-in-law, Harry two-room schoolhouse in Two Dot, and Cosgriffe, the two on opposite sides of after graduation from Harlowton High the fence. There was a lot of chuckling on School in 1945 he enlisted in the Navy. both parts. Having a severe hearing loss World War II having ended, he was in later life was particularly difficult for discharged in 1946 and returned home to Jim, a social and likable man, although he continue his studies. handled even that with humor. While at Montana State College Jim and Kay had three children, who studying agricultural economics, Jim like their father were educated at the was a member of the original college Two Dot Grade School, Harlowton High rodeo team, riding bulls, saddle broncs School, and Montana State University. and bareback horses, even competing at Jim spent his retirement years tending the Cow Palace in San Francisco. It was Perry James “Jim” Moore to his pristine two-acre lawn, advising through rodeo that Jim met Kathryn family members (never without being Nash, who was also an excellent eques- practice of law in 1967. He was elected to asked), and writing fiction, including one trian, and remains one to this day. the Montana Senate the same week. He volume of short stories and five novels, Jim and Kate were married in 1954 then began his law practice with Gordon all published by Janet Muirhead Hill. He and remained together for 63 years, rais- Hickman in Harlowton, earning $7,000 could spin a good yarn, a trait he inher- ing three children. during the first year. He told family ited from his father. His stories were in- After graduation, Jim took over some members with a grin, “I couldn’t charge fluenced by his background as a rancher of the ranch management responsibilities my friends and neighbors.” and lawyer. from his father, and when his father died, In 1975, he opened a law practice in Jim was empathetic with Native he took over the whole operation. Bozeman but continued to manage the Americans and published an article in Even as he was juggling responsibili- ranch, which he said was “only possible Montana Magazine about their plight. He ties with the ranch and a growing family, because of reliable ranch employees and told family members with regret that his Jim found time to enroll in a correspon- an extraordinary employee at the law of- grandfather homesteaded in Montana, as dence course in law, studying during fice.” In 2006, Jim, who had retired from many did, and “ran off the Crows.” winter days when ranching slowed down. law in 1997, received the Jameson Award Contributions in Jim Moore’s name He passed the Montana Bar from the State Bar of Montana, given to Resurrection Parish in Bozeman would Examination and was admitted to the to an attorney who has exemplified the be appreciated.

STATE BAR OF MONTANA Follow us to get up-to-date news on  CLE course o erings  Fastcase Tips  Supreme Court news  Court appointments  Statewide legal news  And more facebook.com/StateBarOfMontana | @StateBarMT | montanabar.org

Page 28 June/July 2017 George W. Huss upgrade the information and communi- Deborah Harten-Moore cations systems to ensure that the 16th George W. Huss, a prominent at- Judicial District was fully digital capable. Deborah “Deb” Harten-Moore, 68, torney, former District Court Judge, loyal He also traveled throughout the state as- died in May 2016 in Seattle, after a brief friend, loving grandfather, and tireless sisting other judicial districts. He retired illness. scholar, passed away May 11, 2017, after from the bench in 2016 after suffering She was born in Altoona, suffering a series of major myocardial health problems. Pennsylvania, daughter of the late Emes infarctions. Concurrent to his professional life, and Cleova Harten. He was born July 6, 1949, in Miles City Huss devoted himself to the local com- Deb received a Bachelor of Science to the late Dewey M. Huss and Elizabeth munity. He was elected and served in the degree in journalism from Penn State A. Huss. He was an Miles City Council and spent a number University, a Bachelor of Science in honors graduate of of years as the city attorney. One of his psychology from University of Pittsburgh St. John’s University greatest joys in life was serving alongside and a Juris Doctor from University of in Collegeville, the Miles City Fire Department as a part- Montana School of Law. She practiced Minnesota, and the paid fireman and EMT, a place where he law as a prosecuting attorney in Montana, University of Montana established many lifelong friendships. He and she was a member of the United School of Law. was one of the people responsible for the States Court of Appeals for the 9th After law school, revitalization of the historical Miles City District, serving as attorney and counsel- Huss returned to Miles Club where he served as a director, presi- or. She was admitted to the United States Huss City to practice law dent, and historian. As a result he became District Court and served as a clerk on alongside his father a history buff and authored several mono- the Montana Supreme Court. in 1976 and for nearly 36 years pro- graphs and lectured about the history of She retired to do what she loved: vided legal counsel to countless eastern eastern Montana and Wyoming. spending time with her husband, Robert, Montanans, many of whom rewarded him Should friends desire, in lieu of flow- stepsons, step-grandchildren and her four with their friendship. He continued to ers, donations may be made to the Custer rescue dogs. practice law until he became 16th Judicial County Art & Heritage Center or the A Buddhist memorial ceremony was District judge in January of 2013. Huss charity of one’s choice. Condolences may given to her by her stepson Shawn and was an avid student of the law and was be sent to the family by visiting: www. his wife, Nadia. honored to be elected judge. During his stevensonandsons.com. Memorials may be made to animal time on the bench he worked tirelessly to rescue shelters or organizations.

also one of the most hotly debated topics and by the time this article reaches print in HEALTH, from page 22 under the AHCA that could see equally the Montana Lawyer many of the AHCA significant changes during the Senate pro- provisions may have changed. III. Conclusions cess. The AHCA state stability fund grants are one other item missing from this Kristy Buckley is a partner in the Bozeman A few disclaimers are in order. This ar- office of Crowley Fleck PLLP, practicing in ticle is not meant to be all-inclusive of the article. Those grants attempt to address employee benefits law. The Health Care AHCA provisions. Most of the analysis is potential state waivers of EHBs and risks Reform compliance team at Crowley is focused on the employer’s obligations as a associated with high health cost individu- continually monitoring legislative activity. plan sponsor. Further, I have purposefully als. A better discussion of the state stability If you have questions about Affordable Care left out the discussion about Medicare. grants and high cost health care can be Act compliance or potential new federal No doubt, the AHCA makes significant found in the May CBO report. Finally, legislation, you can contact her at 406-522- 4522 or [email protected]. changes to Medicare provisions, but it is this article is merely a snapshot in time

NONPROFIT, from page 23 out of agreeing to do so. It’s quite the can be a fun gig. opposite actually. I would encourage you to participate if and when these kinds of ALPS Risk Manager and/or non-attorney directors may Mark Bassingthwaighte, disclose the communication for business opportunities arise. Speaking personally, I Esq. has conducted over reasons. Either way privilege is lost. This do believe that giving back to the com- 1,000 law firm risk man- is why it is so important for the attorney- munity in this fashion is a wonderful gift agement assessment vis- director to fully inform the client and the for an attorney to give. All I am trying its, presented numerous board of the potential risks relating to to do is to see that you are informed in continuing legal educa- order to help you make decisions about tion seminars throughout loss of privilege and this should always be the United States, and done in writing. how to give back in a way that will hope- written extensively on risk management Please understand that my intent fully garner the greatest rewards for all and technology. You can contact him at: in sharing this cursory overview of the involved. Now that you know what you [email protected]. risks associated with sitting on nonprofit need to think about, go for it. Go out and boards is not about trying to talk you make the world a better place. It really www.montanabar.org Page 29 Job Postings and Classified Advertisements CLASSIFIEDS | List an opening or see additional job listings at jobs.montanabar.org. Basic 30-day listing is $99 (includes Montana Lawyer classified ad for State Bar of Montana members). For ads for legal services, office space, mediation, or consultants and experts, email [email protected] or call 406-447-2200.

ATTORNEYS formance. Please email resume and writing sample to classifieds@ montanabar.org with a subject line of Box 1705-01. EXECUTIVE DIRECTOR: The State Bar of Montana is seeking an Ex- ecutive Director with a start date of January 2, 2018. The State Bar is DEPUTY CITY ATTORNEY-CRIMINAL: The City of Billings City At- a unified, integrated bar organized in 1975 by the Montana Supreme torney’s Office is seeking a Deputy City Attorney to perform a variety Court. Membership represents the entire spectrum of the Montana of professional duties and a full range of legal services related to mu- legal community from private practitioners to judges, government nicipal criminal prosecution. The successful applicant will prepare and legal services attorneys and corporate counsel. Direct letters and prosecute misdemeanor criminal cases in Municipal Court and of interest, inquiries and resumes by July 1, 2017, to cmanos@mon- represent the City of Billings in criminal proceedings before all other tanabar.org. See full listing at jobs.montanabar.org. courts, administrative agencies and boards as assigned. Apply on- line at www.ci.billings.mt.us. Full listing at jobs.montanabar.org. PUBLIC FINANCE ASSOCIATE ATTORNEY: Dorsey & Whitney LLP is seeking a junior-level Associate attorney to join the Public Finance CIVIL DEPUTY COUNTY ATTORNEY: Broadwater County requests pro- department in our Missoula office. Qualified candidates will have: posals for a contract Deputy County Attorney solely for civil repre- One to three years of transactional experience; a JD degree from an sentation. Duties include advising the County Commission, boards, ABA-accredited law school; excellent analytical, research and writ- departments and the County Attorney on the full range of local ing skills; and strong academic performance. Apply online at http:// government issues and decisions, to include open government, land www.dorsey.com/attorneyjobs. Call 612-492-5186 if unable due to use and planning. Attendance at County Commission or special disability to apply online. See full listing at jobs.montanabar.org. meetings will occasionally be required. Please provide proposals for workload of 5-10 hours per week, with attendance at 1-4 meetings OFFICE SHARE ATTORNEY: William A. Hritsco of Hritsco Law (for- in Townsend, Montana, per month. Send proposals to County Attor- merly Davis, Warren & Hritsco) seeks 1-2 attorneys to office-share ney Cory Swanson, 515 Broadway, Townsend, MT 59644. in beautiful Southwest Montana. Our office is located at 122 E. Glendale St. in downtown Dillon. The law office was established in ASSISTANT GENERAL COUNSEL – CORPORATE: Montana State 1953 and serves generations of loyal clients. Our practice has been Fund seeks an assistant general counsel. Position sets the vision general in nature with an emphasis on real estate transactions, agri- and provides direction as the team leader for the Special Investiga- cultural law, water law, business entity formation, wills and probate. tions Unit (SIU), and leads, selects, coaches and develops staff using The practice includes civil trials and appeals and occasional criminal advance personnel management practices. Provides direction and defense. See full listing at jobs.montanabar.org. guidance organizationally and interprets statutes, court decisions, rules and policies concerning or affecting the organization and pro- ATTORNEY/OF COUNSEL: National consumer bankruptcy firm Up- vides written and oral legal advice and recommendations to man- Right Law looking to add a local counsel to service and assist with agement and staff on a daily basis. Apply online at https://montana- bankruptcy work in the state of Montana. Local counsel is needed to statefundcareers.silkroad.com. Full listing at jobs.montanabar.org. meet with clients, assist in petition preparation, and attending hear- ings. Every client assigned to you will have been screened to ensure ASSOCIATE ATTORNEY: Axilon Law Group, PLLC, a small statewide they are good candidates for bankruptcy and will be submitted litigation and general practice firm, is seeking an associate to join for your review and approval. As a firm, we handle the marketing, our Missoula office. Some litigation or general practice experience is retaining, selling of services, and collection processes. Local counsel preferred. The firm offers a competitive salary and benefits package. has control over the bankruptcy process itself. Please send resume, cover letter and references by email to: dchris- [email protected]. ASSOCIATE ATTORNEY: Hendrickson Law Firm, P.C. seeks one or two attorneys with excellent academic, writing, and personal skills TRANSACTIONAL/COMMERCIAL LAWYER: Datsopoulos, MacDon- to do transaction and litigation work, with the opportunity to be a ald & Lind, P.C. of Missoula, Montana desires to engage an experi- major part of a small, well established, highly rated, general practice enced transactional/commercial lawyer with four to five years of firm in Billings. Several members are at or nearing retirement and experience in private practice to work as an independent contractor want to keep their good clients in capable hands. This is an oppor- or associate on exciting and sophisticated real estate development, tunity for immediate client involvement, experienced mentoring, business and commercial transactions. Our firm offers a strong, col- developing your own areas of practice, and financial success primar- legial and productive work environment and excellent compensa- ily based on productivity, while keeping a strong emphasis on pro- tion. The ideal candidate would be a lawyer with a positive, can-do fessionalism. Some experience is preferred but quality new gradu- attitude and a diligent work ethic. Some basic requirements include ates will be considered. Please send letter of application, references, being a current member of the Montana Bar, superior writing skills resume, transcript, and writing sample to katie@hendricksonlawmt. and familiarity with a myriad of transactional structures and docu- com. ments. We look forward to hearing from you! Please send cover let- ter, resume and references ASSOCIATE: Bozeman Law Firm seeking junior attorney to assist in its growing litigation and transactional practice. Experience pre- ferred. Competitive compensation, based on qualifications and per-

Page 30 June/July 2017 Job Postings and Classified Advertisements

ATTORNEY SUPPORT/RESEARCH/WRITING MEDIATION AND ARBITRATION SERVICES: Please contact Carey E. Matovich, Matovich, Keller & Murphy, P.C., Billings, MT, 406-252-5500, DO YOU NEED HELP in your busy criminal defense or family law or email at [email protected]. practice? Over 20 years experience in criminal and family law. LEGAL RESEARCH & WRITING: motions, pleadings, discovery, and appeals. CONSULTANTS & EXPERTS [email protected] or (406) 697-5419. Reasonable rates with flat fee. FORENSIC DOCUMENT EXAMINER: Trained by the U.S. Secret Ser- vice and U.S. Postal Inspection Crime Lab. Retired from the Eugene, ENHANCE YOUR PRACTICE with help from an AV-rated attorney Ore., P.D. Qualified in state and federal courts. Certified by the Ameri- with 33 years of broad-based experience. I can research, write and/ can Board of forensic Document Examiners. Full-service laboratory or edit your trial or appellate briefs, analyze legal issues or otherwise for handwriting, ink and paper comparisons. Contact Jim Green, Eu- assist with litigation. Please visit my website at www.denevilegal. gene, Ore.; 888-485-0832. Website at www.documentexaminer.info. com to learn more. [email protected], 406-210-1133. ARCHITECTURAL EXPERT, FORENSIC INVESTIGATION & ANALY- COMPLICATED CASE? I can help you sort through issues, design SIS: 43 years architectural experience. Specializing in Contract a strategy, and write excellent briefs, at either the trial or appellate Administration; Specifications; and Architect / Owner /Contractor level. 17+ years’ experience in state and federal courts, including 5 relationships. Extensive knowledge of building systems, materials, years teaching at UM Law School and 1 year clerking for Hon. D.W. construction methods; Accessibility Regulations and Standard of Molloy. Let me help you help your clients. Beth Brennan, Brennan Care; and forensic architectural investigation. Provides consulting Law & Mediation, 406-240-0145, [email protected]. and expert witnessing services. Attorney references upon request. Frank John di Stefano, PO Box 1478, Marion, MT, 59925, Phone: BUSY PRACTICE? I can help. Former MSC law clerk and UM Law 1-406-212-7943. honors graduate available for all types of contract work, including le- gal/factual research, brief writing, court/depo appearances, pre/post BANKING EXPERT: 34 years banking experience. Expert banking trial jury investigations, and document review. For more information, services including documentation review, workout negotiation as- visit www.meguirelaw.com; e-mail [email protected]; or call sistance, settlement assistance, credit restructure, expert witness, 406-442-8317. preparation and/or evaluation of borrowers’ and lenders’ positions. Expert testimony provided for depositions and trials. Attorney refer- OFFICE SPACE/SHARE ences provided upon request. Michael F. Richards, Bozeman MT 406- 581-8797; [email protected]. KALISPELL: Existing 6-member general practice law firm in Kalispell seeking attorney(s) to share office space and staff or possible lateral EVICTIONS merger. Contact [email protected]. EVICTIONS LAWYER: We do hundreds of evictions statewide. Send OFFICE SHARING OPPORTUNITY: Looking for attorney to share ful- your landlord clients to us. We’ll respect your “ownership” of their ly furnished office and legal assistant in Great Falls, MT. Reasonable other business. Call for prices. Hess-Homeier Law Firm, 406-549- terms. Great view. For more information e-mail: ageiger@strainbld. 9611, [email protected]. See website at www.montanae- com; 406-727-4041. victions.com.

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