December 2010 / January 2011 THE MONTANA Volume 36, No. 3

awyerTHE STATE BAR OF MONTANA

The State Bar’s IfL you haven’t Member Survey taken it yet. . . is happening ‘til Jan. 7 Find the survey form at www.montanabar.org Open and shut? Court’s lawyer-discipline rule changes intended to increase transparency; but critics say they they didn’t go far enough

Just in time for Christmas: Meet the new lawyer-legislators FDR’s jousting Happy holidays! justices From the staff and officers of the State Bar

THE MONTANA LAWYER DECEMBER/ JANUARY INDEX

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. Phone Note: There will be no separate January issue of The (406) 442-7660; Fax (406) 442-7763. E-mail: [email protected] Montana Lawyer. The next issue will be the February 2011 edition. STATE BAR OFFICERS President Joseph M. Sullivan, Great Falls President-Elect Shane Vannatta, Missoula Cover Story Secretary-Treasurer K. Paul Stahl, Helena  New, more transparent attorney-discipline rules 6 Immediate Past President Cynthia K. Smith, Missoula Excerpts for Justice Nelson’s dissent 7 Chair of the Board Randall Snyder, Bigfork The revised rules 7

Board of Trustees Pam Bailey, Billings Pamela Bucy, Helena Features Darcy Crum, Great Falls Ellen Donohue, Anaconda  Vicki W. Dunaway, Billings The lawyers in the 2011 Legislature 8 Leslie Halligan, Missoula Jason Holden, Great Falls The Bar’s Law School for Legislators 9 Thomas Keegan, Helena Jane Mersen, Bozeman  Support needed for Court Help Program 9 Olivia Norlin, Glendive Mark D. Parker, Billings  Reactions to limited-scope representation 18 Ryan Rusche, Wolf Point Randall Snyder, Bigfork  Book Review: FDR’s jousting justices 24 Bruce Spencer, Helena Matthew Thiel, Missoula Lynda White, Bozeman Tammy Wyatt-Shaw, Missoula Commentary ABA Delegate  Damon L. Gannett, Billings President’s Message: Coffee, donuts & civility 4  When a physician testifies, by Dr. W. David Herbert 25 THE MONTANA LAWYER Publisher Christopher L. Manos, Executive Director State Bar News Editor  Charles Wood (406) 447-2200; fax: 442-7763 Member survey is under way 5 e-mail: [email protected]  Evolution of the Group Benefits Trust 11

SUBSCRIPTIONS are a benefit of State Bar mem-  Summary of the September Board meeting 12 bership; others purchase a year’s subscription for $40, pre-paid. Third Class postage paid at Helena MT  New social networking and trademark policies 14 59601.  State Bar Calendar 13 ADVERTISING RATES are available upon request. Statements and expressions of opinion appearing here- in are those of the advertisers or authors and do not Courts necessarily reflect the views of the State Bar of Montana.  Montana appellate procedure revisions proposed 21  Forum discusses merit selection of judges 22 POSTMASTER: Send address changes to Montana Lawyer, P.O.Box 577, Helena MT 59624.  Public defenders can represent co-defendants 22

Regular Features  Upcoming CLEs 15  State Bar Bookstore 16 Copyright 2010 State Bar of Montana  News About Members 35 Printed in Billings at Artcraft Printers  Deaths 36  Classifieds 37 PRESIDENT’S MESSAGE Coffee, donuts and civility Get to know your fellow attorneys better Joe Sullivan

ivility can arise when you least expect it and from paths with the opposing attorney again in your legal career. the simplest of acts. Here are a few examples. It is a substantial contrast to Montana where you are not C only likely to meet your opponent in court several times in the future, but you are likely to meet him in the grocery Example #1. Not long ago, two attorneys I deeply respect store next week or end up coaching her daughter in Heisey were on opposite sides at a hearing. Comments were made youth league basketball. As a result, we treat each other after the hearing once the courtroom had cleared and the better. I deeply value that. two attorneys ended up toe-to-toe and nose-to-nose arguing That is not to say having a close-knit legal community with each other (not in their quiet inside voices). A few does not have its down sides. I began my practice in days later, one of these attorneys (call him Attorney A) Montana as an associate hearing the war stories of my sen- explained to me what had happened. As a result of our ior partners Bill Coder and Bob Emmons. Apparently, a conversation, Attorney A reached the conclusion the right Cascade County Bar Association Annual Meeting was not thing to do would be to call the deemed a success unless there was at opposing attorney (Attorney B). least one fist fight between two or He did so. Attorney B felt equally The courthouse coffee room more learned counsels. bad. The two ended up talking things out in a civil manner and is a small tradition with Example #3. I have had the pleas- probably created more profession- substantial benefits. The pay- ure of co-authoring Supreme Court al respect for each other in the off is a noticeable level of briefs with Doug Wold, one of the process. most professional and civil attorneys familiarity and civility in the I have met. I learned a great deal Example #2. Law and motion courtroom. from Doug. One concept was, the day in the 9th Judicial District is audience you are writing for is intelli- something I have always enjoyed. gent and they neither have the time Without fail the clerk, one of the attorneys in the hall, or nor the desire to hear anything but legitimate argument as even the sheriff or a deputy acting as bailiff has pointed me to the issue at hand. As such, the finished briefs I wrote to a conference room, jury room, or law library with coffee with Doug were always civil in tone and never contained and donuts. This has been true whether I was in Conrad, any negative reference to opposing counsel. Shelby, Choteau, or Cutbank. This has been true whether under the tenure of Judge McPhillips, Judge Buyske, or Special note. I should briefly mention an upcoming arti- Judge McKinnon. cle on civility. The Montana Chapter of the American It is not that I need the caffeine or calories (quite the Board of Trial Advocates (ABOTA) is a group of knowl- opposite is true as to the latter). It is five or ten minutes edgeable trial attorneys who all have vast trial court experi- where I get a chance to reacquaint myself with attorneys I ence. One of the group’s chief objectives is civility. In a know, as well as meet some I do not. It is a small tradition subsequent Montana Lawyer, Don Robinson will provide that has substantial benefits. The payoff is a noticeable us with some insight as to an ABOTA civility project he level of familiarity and civility in the courtroom during the has put together. subsequent hearings. I firmly believe familiarity breeds collegiality and Conclusion. There are many valid reasons for having a respect. I equally believe anonymity allows animosity to state, local, and specialty bar associations, but common to needlessly fester. I initially practiced in a metropolitan area all is the ability to bring attorneys together and allow them of nearly two million. I know first-hand how different the opportunity to get to know each other. While it may practice is when you know you will probably never cross only seem to be coffee and donuts, a lunch meeting, or

PAGE 4 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 State Bar member survey is under way Go to www.montanabar.org to fill out this important form; you can win a gift card

The new State Bar of Montana mem- ABA Division for Bar Services, ber survey began online on Dec. 1 and which will compile the results. The members who have completed it have survey form will be on the Bar web- already put their names in the hat for site through Jan. 7. gift-card prizes. The survey can only be complet- Helping to attract members to take the ed online. Print copies of the forms first member survey since 2005, the for postal mailing will not be State Bar is offering drawings for three available. gift cards worth $100, $75, and $50. The survey information will pro- The survey will provide the Bar lead- vide an accurate overall portrait of ership with important information about the Montana Bar and its members. the challenges that Montana Bar mem- Much of the data will be compared bers face in their law practices. It will to the 2005 data, telling us how also allow members to tell the Bar how much the Bar and the practice of it can improve its services to them. law has changed in the past five The results of the survey also will years. Some of the questions will provide useful information for attorneys be new, covering topics not on the and law firms, such as the amounts of radar in 2005. In that survey, 43 percent fees or drawdown charges for their compensation Montana-licensed attor- of the State Bar members participated, a users. In order to enter the drawing, you neys receive, for comparison purposes. very high survey turnout. must provide your name and e-mail The survey form, which only takes As a token of the State Bar’s appreci- address in the demographic section at about 15 minutes to fill out, is only ation for completing the survey, you will the beginning of the survey. Doing so available online, at the home page of be entered into a drawing to win one of will not compromise the confidentiality www.montanabar.org. Click on the link the gift cards. They are Bank of of your responses.  under the “Front Burner,” go to the sim- America gift cards which hold no hidden ple instruction sheet, then fill out the easy-to-use form on your computer. You will receive navigation prompts on the Reminder: Time to comment on limited scope representation online form, and you can exit the survey before completing it and return at any The Montana Supreme Court will accept public comments on the proposed revi- time. When done, just exit the survey sions to the Montana Rules of Civil Procedure and the Montana Rules of Professional and it automatically submits. Conduct dealing with limited scope representation for 90 days following the October Your answers, which are confidential 6th date of the order. See the order and proposed changes at www.montana – in no way connected to your name, bar.org. Other recent rule changes with comment periods can be found on Page 21. which is not required – will go to the cocktails and dinner, the positive ramifications can be consid- Bar committees. Whether you are new to the practice or a sea- erable. soned veteran, your involvement will create greater cama- With that in mind, I challenge each of you to get to know raderie which I firmly believe leads to greater civility. more of your fellow attorneys. It is a challenge to make your As to the two attorneys who had gone toe-to-toe, their practice more enjoyable and respectful. It is a challenge to phone conversation ended something like this: reduce the animosity-driven tension in your practice. More specifically, it is a challenge to attend the annual State Bar Attorney B: “I apologize again. You were really the bigger meeting, to attend your local bar meetings, to get involved in man in initiating this call.” the New Lawyers Section, to actively participate in the State Bar’s sections or the specialty bars dealing with your practice Attorney A: “I apologize also. (And, with his tongue firmly area, and to volunteer as a member of the multitude of State planted in his cheek) Since I am the bigger man, I WIN!” 

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 5 COVER STORY Court sets new rules on attorney discipline ciplinary rules. Even though it concluded that the Gazette’s to allow transparency petition had “arguable merit,” the Court on Nov. 26, 2008, decided to dismiss the Gazette’s petition and initiate a public rulemaking process. The Court agreed to set up a working By Charles Wood group consisting of representatives of the Gazette, the The Montana Lawyer Commission on Practice, the Montana Newspaper Association, and the State Bar of Montana. Earlier this year, the Court he Montana Supreme Court – in a 6 to 1 vote – has issued proposed revisions to the rules and allowed a 60-day issued revisions to the Montana Rules of Lawyer public comment period that ended Aug. 5. TDisciplinary Enforcement (MRLDE) that are the result of a 2006 newspaper lawsuit challenging the lack of public THE RESULTS HAVE NOT made everyone happy. access to a lawyer discliplinary matter. “Now, some two years later – after studies, meetings, work- The Nov. 9 revisions allow the public to see the details of ing groups, e-mails, written position statements, and countless an attorney’s violation of rules of conduct after a formal disci- hours – we are essentially back where we started – at square pline process is complete, while still allowing for a private one,” argued Justice Jim Nelson in his dissent. admonition to attorneys who commit minor misconduct. “Despite making some cosmetic changes to the Rules of The rules take effect on Jan. 1, 2011. But any disciplinary Lawyer Disciplinary Enforcement, it remains the case that matter then pending shall be concluded under the rules exist- lawyer discipline administered through ‘admonition’ ing prior to that date. (see MRLDE 13 below) will still likely remain private,” The revised rules, presented below, contain the following: Nelson wrote.  Bars release of information before a formal complaint is The Billings Gazette said in a Nov. 22 editorial, titled filed, except under five specific circumstances. “Court's public access revision still leaves room for secrecy,”  Upon the filing of a formal complaint with the clerk of that “the long-awaited revision . . . goes further than the old the Supreme Court, the proceedings before the Commission on one to state that disciplinary proceedings and records are open Practice and pleadings and other documents filed with the to the public. However, it retains and creates exceptions and clerk or Commission will become public. relies on those determining the discipline to decide when  The disciplinary counsel is allowed to issue a letter of information can be withheld from the public – without a work- caution to a lawyer or take other corrective action for “minor” able way for the public to object.” ethics lapses, with any such actions not considered a discipli- Helena attorney Mike Meloy, who represented the Gazette nary action and therefore not public information. in the case, was quoted in the editorial as saying, “The rule on  Such factors as whether the duty is owed to a client, to its face is much more open. But as a practical matter, we're the public, to the legal system, or to the profession – and any right back where we started.” existence of prior offenses – will be allowed to help determine The editorial also quoted Justice Brian Morris, who was the disposition of discipline. part of the working group appointed to draft new rules. He  A lawyer under discipline proceeding stills retains a said the Court has set “a very high standard” for closing measure of confidentiality by entering a “conditional admis- lawyer disciplinary hearings. “You could no longer have a sion” to his offense. public censure and have the information remain confidential.” “This isn't the end of the story,” he continued. “We can see THIS MATTER BEGAN when the Billings Gazette filed how it works out.” If further changes are needed to protect the suit against the Supreme Court’s Commission on Practice public interest, the rules can be changed again, he told the (COP) and Office of Disciplinary Counsel (ODC). Pursuant to Gazette. the public’s “right to know”guaranteed in the Montana According to the editorial, attorney Meloy and Justice Constitution, the Gazette sought to open “confidential” lawyer Morris agreed that the case that started this quest – the secrecy disciplinary files held by COP and ODC pertaining to a former about the reasons for serious discipline of the former assistant Billings assistant city attorney. city attorney – probably couldn’t happen under the new rule. Instead of ruling on the merits of the Gazette’s claim, the “The rule certainly isn’t the simple, straightforward direc- Supreme Court determined, simply, that because it has exclu- tive on openness that we sought,” the Gazette editorial said. sive jurisdiction over lawyer discipline, the 1st District Court But it said Justice Nelson’s 10-page dissent “offers instructive where the suit was filed did not have authority to open lawyer insight into how Montana’s lawyer disciplinary counsel and disciplinary files and that the attorney’s disciplinary files could adjudicatory panels should uphold the public’s right to infor- not be retroactively opened. mation. It should be required reading for everyone involved in The Gazette then challenged the constitutionality of the dis-

PAGE 6 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 holding Montana lawyers accountable for following the laws of the state and the rules of the Supreme Court.” [See Excerpts from Justice Nelson’s dissent excerpts from the dissent at right]  Rather than ridding the discipline process of admonitions altogether – the sub- stitute being the nondisciplinary letter of caution issued by Disciplinary Counsel THE FOLLOWING ARE new . . . we have retained the option for COP to privately discipline an attorney for his Rules 3, 4, 5, 9, 10, 13, 20, and 26 in or her misconduct, by means of a private admonition. the Montana Rules for Lawyer Disciplinary Enforcement as amended  . . . in addition to authorizing an Adjudicatory Panel to impose an admonition by the Nov. 9 Supreme Court order. privately, MRLDE 13 indicates that the Adjudicatory Panel may also decide “to Rule 11 is abrogated. close an adjudicatory hearing” altogether. This flies in the face of MRLDE 20B, RULE 3 – REVIEW PANELS: which states that the proceedings before COP are public, except in the narrow cir- COMPOSITION; POWERS & cumstances listed in MRLDE 20B(1)-(4). DUTIES; QUORUM  MRDLE 13 states that before imposing a private admonition, COP must consult A. Composition. The Chairperson of with the lawyer subject to sanction. No doubt it will be the exceptional lawyer that the Commission shall appoint one or more Review Panels of five members each, at least two of whom shall be More on NELSON’S DISSENT, Page 32 non-lawyers; shall designate a Chairperson for each Review Panel; and shall realign the membership of POWERS & DUTIES; QUORUM Review Panels from time to time. A. Composition. The Chairperson of the Commission shall appoint one or more Adjudicatory Panels of nine members B. Powers and Duties. A Review Panel shall: each, at least three of whom shall be nonlawyers; shall desig- (1) Review Disciplinary Counsel’s request to file a formal nate a Chairperson for each Adjudicatory Panel; and shall complaint, together with the complaint, the response realign the membership of Adjudicatory Panels from time to from the lawyer against whom the complaint was made time. and any reply from the complainant together with other relevant documents and Disciplinary Counsel’s intake B. Powers and Duties. Adjudicatory Panels shall, in accor- summary, investigative report and recommendations; dance with the specific procedures and provisions of these (2) Determine any preliminary and procedural matters. Rules: (2)(3) Refer complaint to Disciplinary Counsel for any (1) Hold hearings on formal complaints and complaints further investigation, if needed, to determine whether a for interim suspension ftiled by Disciplinary Counsel; formal complaint is appropriate; (2) After hearing, make findings of fact, conclusions of (4) Dismiss the complaint when the facts do not appear to law and recommendations to the Court for discipline or warrant disciplinary action. other disposition of formal complaints and complaints for (5) Request Disciplinary Counsel to prepare and file with interim suspension; an Adjudicatory Panel a formal complaint when the facts (3) Hear and determine preliminary and procedural mat- appear to warrant disciplinary action. ters incidental to the exercise of its powers and duties; (6) Request Disciplinary Counsel to prepare and file with (4) Administer private admonitions; pursuant to Rule 13. an Adjudicatory Panel a complaint proposing interim sus- (5) Hear and determine requests for reconsideration pur- pension in an appropriate case. suant to Rule 14; (4)(7) Hear and determine requests for review pursuant to (6) Administer oaths, provide for discovery and exercise Rule 10C(3) and for reconsideration pursuant to Rule 14; its subpoena power pursuant to Rule 19; (5)(8) Authorize the stay of disciplinary proceedings for (7) Authorize the stay of a disciplinary proceeding for good cause shown pursuant to Rule 28; good cause shown pursuant to Rule 28; (6)(9) Conduct show cause hearings when a lawyer has (8) Hold show cause hearings when a lawyer has refused refused to respond to inquiries from the Office of to respond or cooperate with the Office of Disciplinary Disciplinary Counsel or the Commission; and. Counsel, a Review Panel or an Adjudicatory Panel pur- (7)(10) Notify parties of action by a Review Panel. suant to Rule 24; (9) Administer discipline by consent pursuant to Rule 26. C. Quorum. Three members of a Review Panel, at least two (9)(10) Conduct proceedings relative to disability and of whom are lawyers, shall constitute a quorum, however, transfer to inactive status pursuant to Rule 28; any act of the Review Panel shall require the vote of three (10)(11) Hold hearings on petitions for reinstatement and members. make recommendations for their disposition to the

RULE 4 – ADJUDICATORY PANELS: COMPOSITION; More on DISCIPLINE RULES, Page 29

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 7 2011 MONTANA LEGISLATIVE SESSION Number of lawyers in Legislature jumps to 10

After reaching a record low of seven  Larry Jent, a New faces: attorney-legislators in the 2007 and 2009 Democrat from Bozeman, Legislative session, the number of attor- was re-elected to his third  Steve Fitzpatrick, a neys in the 2011 session is back up to term in the Senate after Republican from Great 10. spending three terms in Falls, is a newcomer to One, Sen. Jeff Essman of Billings, the House. the Legislature this ses- was elected by his party to be Senate sion. He practices law at majority leader, and three have been  Anders Blewett the Smith, Walsh, Clark chosen to be chairs of committees, (Alexander Blewett IV) a & Gregoire Law Firm. including both the House and Senate Democrat from Great Judiciary committees. Falls, served one term in  Kristin Hansen, a Four of the attorneys are new to the the House before being Republican from Havre, Legislautre. Five attorneys have served elected to the Senate this will be serving her first in earlier sessions. The Montana year. term in the Legislature. Lawyer has been keeping track starting She is the chief deputy with the 1999 session, and the number New face: county attorney for Hill of lawyer-legislators has been as high as County. 14 in the 2001 and 2003 session. But  Art Wittich, a Montana continues to be one of the Republican from  Austin Knudsen, a states with the lowest number of attor- Bozeman, was elected to Republican from ney-legislators. his first term in Culbertson, is a first-term Because a legislator who has a law November. He practices legislator. He lives in degree can be a great benefit to the law- law at the Wittich Law Culbertson, but practices making process, past State Bar of Firm. law in Plentywood with Montana presidents have encouraged the O’Toole Law Firm. attorneys to become involved in politics. Attorneys in the 2011 Legislature are: House

Senate  Ken Peterson, a Republican from Billlings New Congress  Jim Shockley, is serving his third con- Republican from Victor, secutive term in the full of attorneys will serve his fourth Legislature after having Of the 94 incoming term in the Senate after served previously. He will members of the U.S. serving three terms in be chair of the House House of Represen- the House. He will be Judiciary Committee. the chair of the Senate tatives, 90 percent are Judiciary Committee and chair of the  Mike Menahan, a Republicans, and nearly State Administration Committee. Democrat from Helena 40 percent have law was elected to his second degrees, the Wall Street  Jeff Essman, a term in the House of Republican from Billings, Representatives. Journal reported was elected Senate major- ity leader in the November party caucus- es. He will serve his fourth term in the Watch for the State Bar’s Bill Watch List Legislature and also will be chair of the Senate Rules Committee. Beginning later in December, the bills that the State Bar is closely following in the 2011 Legislative session will be listed on a “Bill Watch List” on the Bar homepage at www.montanabar.org. The text of the bills can be found on the Legislature website at http://leg.mt.gov/

PAGE 8 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 Bar to hold ACCESS TO JUSTICE its Law School for Legislators Support Montana’s on Jan. 4 Court Help Program The State Bar of Montana will present its biennial Law School for Legislators on Jan. 4, one day after Funds to be sought from Legislature the opening of the 2011 Legislature. Designed for new legislators, the By Tammy Plubell  Actively participating in and sup- half-day school – from 8 a.m. to noon porting access-to-justice projects and in the House chambers – will focus t should come as no surprise to programs. on the Montana Constitution, the rela- those of us in the legal profession One part of the response to improve tionship of the Legislature to other I that the unmet legal needs of low- access to justice for all Montanans has branches of government, and the finer income Montanans are expansive. As evolved because the Montana Supreme legal points in the lawmaking practicing Montana attorneys, we are Court, the 2007 Montana Legislature, process. encouraged to donate generously of our and Governor Brian Schweitzer under- It will be the fifth Law School for time, money, or both in an effort to stood the magnitude of unmet civil legal Legislators presented by the State Bar address those unmet legal needs. needs in Montana. The governor and – with assistance from the Legislative Despite the generous and herculean Legislature funded, with one-time only Council and the University of efforts of many Montana attorneys, the funding, the Self-Help Law Program, a Montana School of Law – since it civil legal needs of low-income product of the 2005-2006 Law & Justice began in 2000. Each school has Montanans remain unmet. In 2005, Interim Committee. drawn between 85-120 legislators. through a collaborative effort of entities The topics and speakers for the and individuals concerned about access WITH MODEST funding, this pro- 2011 Law School for Legislators are: to justice for all Montanans, a legal gram, as part of the Judicial Branch, needs study of low-income Montana opened full-time self-help law centers in Parameters of Legislative Authority households confirmed that there were Billings and Kalispell, and partnered on under the Montana Constitution – probably in excess of 200,000 civil cases smaller projects and centers in eight Betsy Griffing, UM Law Adjunct each year for which there was no legal other communities. Funding for an Professor and ACLU Montana assistance available. additional two years for the program was Montana’s legal needs study taught incorporated into the economic stimulus Legal Assistance to the Legislature by us that if all Montanans are going to be bill (HB645) that the 2009 Legislature Legislative Services, & Statutory able to access the justice system, we enacted. Construction – Robert Stutz, director, cannot rely solely on legal aid programs What began in 2007 as Montana’s Legal Services Office, Legislative and pro bono services to enable them to Self-Help Law Program, has proudly Services Division do so. evolved into the Court Help Program. The Court Help Program has maximized The Open Meetings Law Affects the THE RESULTS of the 2005 legal the funding the Montana Legislature has Legislature – Attorney Mike Meloy needs study prompted a creative, multi- provided by partnering with non-profit faceted, collaborative response from the and private groups as well as colleges to The Role of the Courts: Interpretation same access-to-justice entities and indi- greatly expand services through grants – Supreme Court Justice Jim Rice viduals concerned about these unmet and volunteer projects. legal needs. Staff members at the State The program has strived to level the Administrative Law & the Executive Bar of Montana have been instrumental civil justice system playing field. On the Branch – John Moore, state’s Pro- in coordinating that multifaceted one hand, it provides tools and informa- fessional Development Center response by: tion to assist Montanans who do not  Providing staff support to Montana have an attorney to navigate their own Attorney General Opinions – Chief Supreme Court-created entities appoint- way through the legal process in civil Deputy Attorney General Chris ed to help develop and coordinate matters. On the other hand, the program Tweeten access-to-justice programs and services also works to increase and support the in Montana. pools of attorneys willing to provide pro The Uniform Code Commission –  Coordinating communication bono legal services to low-income UM Law Professor E. Edwin Eck between access-to-justice entities. Montanans. Staff members of the State

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 9 Bar of Montana have actively participat- support the work of six AmeriCorps Association, the Montana Justice ed in developing and enthusiastically members who travel to the 14 rural Foundation, private and government supported both of these approaches. counties of Blaine, Custer, Glacier, Hill, attorneys working pro bono, and govern- Lincoln, Park, Phillips, Pondera, ment agencies cannot possibly respond THE COURT HELP Program has Rosebud, Stillwater, Sweet Grass, Toole, to the expansive unmet civil legal needs worked with local judges statewide to Teton, and Valley to assist residents with of low-income Montanans without the encourage judicial involvement in devel- legal needs. Court Help Program. oping and sustaining pro bono programs In partnership with the Montana The Montana Supreme Court is ask- and has been instrumental in developing Legal Services Association and the ing the 2011 Legislature to appropriate and expanding local pro bono programs Supreme Court’s Commission on Self $680,000 from the state’s general fund in 10 judicial districts across the state. Represented Litigants, the Court Help to keep the Court Help Program in oper- Additionally, the program has devel- Program has developed user-friendly, ation for fiscal years 2012 and 2013. oped legal education for attorneys volun- plain-language legal forms and instruc- teering in the areas most com- AS MEMBERS of the legal monly requested for pro bono profession, we each have an eth- services and worked in partner- The Montana Supreme Court is asking the ical duty to promote equal ship with the University of access to justice for all Montana School of Law to devel- 2011 Legislature to appropriate $680,000 Montanans, not just those who op a pro bono program to assist from the state’s general fund to keep the can afford it. Some of us fulfill veterans with disability benefits that duty by providing free legal claims before the Veterans’ Court Help Program in operation for fiscal services to those in need, while Affairs Board. others donate money to entities years 2012 and 2013. such as the Montana Justice IN 2010, THE Court Help Foundation, or volunteer in Program has two full-time Self- other indirect ways. Some of us Help Law Centers – one in have not yet found a way to Flathead County and one in Yellowstone tions to assist self-represented litigants. contribute. With the 2011 Legislature County. Each center is staffed by an Completed forms and instructions for just days away from convening, we can employee and a volunteer pool, includ- name changes, emancipation, stepparent all unite in a common goal of supporting ing college interns, community volun- adoption, modification of parenting the Court Help Program. teers and AmeriCorps members, who plans, and landlord/tenant actions are If you are not convinced by the Court assist people with finding legal forms available on public websites. Forms for Help Program’s accomplishments listed and information. As of June 2010, the debt collection actions and simple wills above, try a personal visit to one of the full-time centers have served more than and probate will also soon be available. self-help law centers in your community 10,000 people since opening in January or at least pick up the phone and talk 2008. Customer satisfaction surveys THE COURT HELP Program and with someone who works or volunteers have been overwhelmingly positive. State Law Library are also working with there. If you are convinced that Through the Court Help Program, the State Library to provide Montana $340,000 a year is money well spent on there are also five part-time Self-Help public library employees across the state a program that promotes equal access to Law Centers staffed by part-time with the tools, training, and support they justice on so many levels, then make employees, college interns, community need to assist library users who are sure you express that support to your volunteers, and AmeriCorps members. experiencing legal problems. local legislators. These part-time centers operate in The Court Help Program and If that is your only contribution to Bozeman, Great Falls, Missoula, and Montana Legal Services Association promote access to justice for low-income Sidney. The State Law Library in Helena have obtained grant money to fund Montanans in 2011, it is a very impor- also offers a Self-Help Law Center as coursework at the University of Montana tant and meaningful one. part of its services. In the month of April School of Law and to support the law- 2010 alone, 260 people received assis- school students’ production of three edu- tance from these part-time centers. cational videos addressing the needs of TAMMY PLUBELL is a Helena attorney self-represented litigants. A second grant appointed to the Montana Supreme MONTANA IS a big state with a will fund work stations for self-repre- Court’s Equal Justice Task Force and is large rural population unable to easily sented litigants in at least two sites in a member of the communication working access one of the Self-Help Law rural Montana. group that is shared with the State Bar’s Centers. Consequently, the Court Help Montana’s access-to-justice entities Access to Justice Committee and the Program, in collaboration with the are in the process of updating that 2005 Supreme Court’s Commission on Self Montana Legal Services Association and legal needs study, but common sense Represented Litigants. the Montana Attorney General’s Office, suggests that in the recent economic has obtained federal grant funding to decline the Montana Legal Services

PAGE 10 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 STATE BAR NEWS The evolution of the State Bar’s Group Benefits Trust 2011 premiums will see 12.8% rise By Jim Edwards, president to a minimum premium con- Mountain West Benefits tract was the logical progres- sion as this contract allowed he State Bar of Montana Group Benefits Trust (GBT) the GBT to hold 100 percent of the claims portion of the pre- will celebrate its 13th year in 2011. The GBT is a miums in its own claims account. This separated out the fixed T501c(9) Voluntary Employee Benefits Association costs (the carrier’s administration, taxes, pooling charges, etc.) (VEBA). The majority of law firms in Montana participate in and only these fixed costs – the retention, was paid in the form the GBT; it provides health insurance coverage for almost of a monthly premium. Thus the name of the insurance con- 2,500 individuals. tract, a minimum premium arrangement. Since inception, the GBT has been overseen by trustees If claims for any month were lower than the maximum who serve in a fiduciary capacity to the plan. ERISA is the law amount of monthly claims liability, as determined and agreed that governs qualified multi-employer benefit plans; it requires upon in the minimum premium insurance contract, the GBT that fiduciaries make decisions solely in the interest of the plan simply kept the excess. participants and their dependents and that they defray any or The accumulation of excess premiums, in most but not all all reasonable expenses related to plan administration. years since 2005, has also allowed for premium holidays and In 1998, George Bousliman was the executive director of additions to reserves, and now allows the trustees to move the the State Bar of Montana. George asked the Law Practice GBT to the most advantageous contract – a partially self- Committee of the Bar to explore the opportunity to develop a insured arrangement. health insurance trust for the membership. Some members of this initial committee included Carey Matovich, Bob Minto, THE GBT HAS purchased an additional insurance compo- Bernie McCarthy, and Peggy Probasco. After many months of nent since first moving to a contract where it could recover discussion concerning the appropriate insurance contract to excess premiums (the retention contract), to the present mini- operate under – fully insured or self-funded – benefit plans mum premium contract. This insurance is called specific stop were developed, premiums were established and the first law loss (SSL). The SSL insurance limits the amount charged to firms were presented with quotes. the GBT for any jumbo claim, to a certain maximum amount. By the end of 1999, 14 law firms had joined and the GBT Presently, in the minimum premium contract the SSL is pur- was covering about 250 Montanans. chased at $240,000. Over the last three years, the amount of claims that have been reinsured (pooled out of the GBT’s INITIALLY, THE GBT operated as a traditional, fully claims liability) is $1,837,000. insured contract with Blue Cross Blue Shield of Montana as Going back 13 years to the initial discussions regarding the the insurer. After two years, the trustees negotiated a more most advantageous insurance contract to operate under, it has favorable insurance arrangement – called a retention contract. been a goal to move the GBT to a partially self-funded plan. In a retention contract the insurer charges full premiums but at The trustees are pleased let the law firms participating in the the end of the year, if the premiums exceed claims and operat- GBT know that effective Jan. 1, 2011 the plan will be moving ing expenses, the carrier returns the excess. It is these initial from the minimum premium arrangement to a partially self- excess premiums, along with the earnings over the years on insured contract. these funds, that allowed the GBT to accumulate reserves and The self-funded contract includes specific stop loss (SSL) to offer the membership “premium holidays” on multiple occa- insurance. The trustees are purchasing this coverage at sions. $150,000, much lower than has been the case under the mini- In 2005 the trustees were successful in negotiating an even mum premium contract (SSL was at $240,000). The trustees more favorable insurance arrangement with the carrier, and are also purchasing aggregate stop loss (ASL) insurance. ASL what is known as a minimum premium contract replaced the provides protection to the GBT by establishing a maximum retention contract. Because of the fiduciary obligation the trustees have to (1) manage the plan in the best interests of the plan participants and (2) defray reasonable expenses, moving More GROUP BENEFITS TRUST, Page 33

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 11 STATE BAR NEWS Summary of September Board meeting

The following is a summary of the minutes of the State Bar of (see story on Page 6). Montana’s Board of Trustees on Sept. 16 in Great Falls: EQUAL JUSTICE COORDINATOR REPORT – Janice BAR PRESIDENT’S REPORT – Cindy Smith Doggett The Executive Committee, at the request of the Bar presi- Responses to the Tribal Needs Survey were received from dent, approved the establishment of a diversity working every tribal court. The Native American working group would group. The president appointed Ann Moderie, June Lord, and like to see more self-help centers across Montana and would Pam Bailey as members of the group. like to hold a full-day Native American tribal conference with tribal leaders. SECRETARY-TREASURER’S REPORT – Paul Stahl VISTA volunteer Brendan Kelley is drafting documents for The Bar's investment accounts are up 32 percent, but confi- an online library for teachers and attorneys that will be avail- dence in the economy remains an issue with the markets. The able through the Law-Related Education web page. five portfolios are made up of 80 percent bonds, which are becoming more and more difficult to purchase. Another review LAWYERS ASSISTANCE PROGRAM – Mike Larson of the Bar's current investment policy was recommended. Mike further highlighted the LAP Committee was to meet The ad hoc committee on the State Bar budget – consisting in November regarding the closing of a practice and what to of members Paul Stahl, Jane Mersen, and Ann Shea – contin- do with the files upon an attorney's death or illness. ues to meet regularly. Using input from the May strategic plan- A CLE is being developed that will focus on retirement and ning meeting, the Committee will focus on programs that were dementia issues. given a low priority rating. The amount of the reserves needs to be increased each year ISSUES REQUIRING BOARD ACTION in order to help with inflation costs. It is estimated the Bar's  MOU with Justice Foundation. The Board authorized reserve account (the amount necessary to run the bar for three the Executive Committe to to continue to negotiate a draft months) will be invaded by the year 2014 if alternative finan- of a memorandum of understanding (MOU) with the cial resources or budget cuts are not instituted. Montana Justice Foundation. The existing Bar policies do The ad hoc committee is contemplating a future dues not include a reference to the relationship between the Bar increase request to the Montana Supreme Court, with an auto- and the MJF. The MOU is to assist in the clarification of matic inflation increase. roles, duties, and responsibilities of both parties.

PAST PRESIDENT’S REPORT – Chris Tweeten  Public Law Section revised bylaws. Proposed amend- Board of Bar Examiners member Randy Cox presented a ments approved by the section were provided to the proposed petition to adopt a uniform bar exam during the Past trustees, which the trustees approved. Presidents Committee meeting at the Law School in August.  State Bar social networking policy. A proposed social BOARD CHAIR’S REPORT – Shane Vannatta networking policy modeled after the State Bar of Mr. Vannatta welcomed Ellen Donohue and Leslie Halligan Wisconsin had been approved by the Executive to their first meeting as Bar trustees and congratulated re-elect- Committee. The Board voted to delete Paragraph 2 of the ed trustees and new officers. policy, then voted to adopt the amended policy (see policy on Page 14). EXECUTIVE DIRECTOR’S REPORT – Chris Manos The Bar will try to establish better relations with the local  State Bar trademark usage policy. The Trustees bar associations by providing an updated handbook of infor- reviewed the proposed trademark usage policy (see policy mation offering technology and resources available to them. on Page 14), which sets guidelines on use of the State Bar’s name and logo. The Board amended the section (d) BAR COUNSEL’S REPORT – Betsy Brandborg Protection of the Marks by adding: The Secretary of State’s Office has asked the Bar to support “The State Bar of Montana, through its Executive its petition regarding the notary journal statute issue. Committee, shall take reasonable measures to protect The Technology Committee will put together a series of the State Bar of Montana's interests in the marks, one-hour technology CLEs. including but not limited to:” The Bar submitted comments in August on the proposed The Board then adopted the State Bar Trademark Usage revisions to the Rules for Lawyer Disciplinary Enforcement Policy as amended. The trustees were in consensus that a

PAGE 12 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 guidance sheet was necessary to understanding the policy. The Section would like to continue its momentum to keep new lawyers involved with the State Bar. Mr. Talia would like  State Bar revised bylaws (informational). The bylaw to see new lawyers appointed as liaisons to the various com- working group consisting of members Shane Vannatta, mittees and sections. Randy Snyder, Darcy Crum, and Chris Tweeten is review- The State Bar’s support of the use of technology and collab- ing the allocation of trustee areas as well as the general orative software programs is appreciated. It makes it easier for structure of the bylaws as a whole. In addition to the the Section to hold meetings and work on projects. requirement of a review every 10 years, the trustees are Erica Grinde is actively working to get new lawyers in concerned that the number of trustees is inconsistent with Montana to serve seniors by assisting with the ABA’s the number as set by the Montana Supreme Court. elder assistance program. Recommended changes could be provided to the trustees as early as the Dec. 3 Board meeting. PARALEGAL SECTION – Barbara Bessey The Paralegal Section's annual CLE is scheduled for March HEALTH BENEFITS TRUST – Chris Gittings 25, 2011, in Missoula. The Section is discussing the possibili- The State Bar health plan continues to be very successful ty of doing an online survey to the members asking them to with $9 million in premiums per year. Of the 2,500 people on give the Board suggestions of new CLE topics and securing the plan almost 113 are Bar members. The plan has seen an attorneys and paralegals to deliver presentations. Typically, the annual increase of 5.5 percent in costs over the last 7 years Section Board chooses the topics; however, in an effort to get with costs continuing to rise. The initial paperwork to become members involved in their section, an online survey is more completely self-funded has been filed. A new investment man- interactive and easier for members to take. ager has been selected. (See related article on Page 7.) The Paralegal Section has also been asked to assist with a CLE for new lawyers in suggesting possible attorney/paralegal MONTANA TRIAL LAWYERS ASSOCIATION (MTLA) teams to present topics at the University of Montana School of – Amy Eddy, president Law addressing information not covered in law school of the The MTLA would like the Montana Supreme Court to “learning curve” and the business aspects of starting their own revisit the district court rules because issues of importance are practices. taking too long to resolve. A pilot program using special mas- The Bar gave the Section approval to participate in Legal ters charging reduced fees to try and keep up with cases has Services’ Developer Program Document Clinics. not seen a lot of progress. The MTLA will be creating a com- mittee consisting of some of its board members and district ABA DELEGATE REPORT – Bob Carlson court judges to review the rules. The ABA's Annual Meeting was held Aug. 5-10 in San Francisco. Several highlights included a resolution to amend NEW LAWYERS’ SECTION – Dwight Schulte / Mike Talia Mr. Schulte introduced incoming President Mike Talia. More BOARD SUMMARY, Page 27

STATE BAR CALENDAR

December 24 January 12 State Bar offices closed for Christmas holiday. News and advertising content deadline for February edition of The Montana Lawyer. Dec. 31 State Bar offices closed for New Year’s holiday. January14-16 Annual CLE & Ski, Big Sky January 3 Board Of Bar Examiners meeting, 10 a.m., State Bar February 4 offices, Helena State Bar Executive Committe meeting 10 a.m., State Bar offices, Helena January 4 Law School for Legislators, 8 a.m.-noon, House Rules Update (Federal, Civil, Etc.) CLE – Bozeman Chambers, Capitol, Helena February 18 January 7 Annual Real Estate CLE, Fairmont Hot Springs State Bar Executive Committee meeting, 10 a.m., State Bar offices, Helena February 25 Bench-Bar Conference, Bozeman

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 13 STATE BAR NEWS New social networking policy for Bar entities

Social networking is quickly emerging as an important way trator). The site administrator will provide the State Bar staff for an association to interact with its members and the public, liaison with administrative access to the social network in the and facilitate member-to-member dialog. Social networks event emergency assistance is needed. Entities are responsible (such as, but not limited to, blogging, microblogging, commu- — in conjunction with their respective site administrators and nities like Facebook and My Space, networking sites like all those individuals participating in a social network estab- LinkedIn, and social media offer opportunities for outreach, lished under this policy – for complying with these guidelines. information sharing, and interaction. The following policy, adopted by the Board of Trustees in Guidelines for social networking September, applies to State Bar of Montana volunteers, sec- In sum, be professional, respectful, and discreet in your tions, committees, and related programs or groups (entities) online dialog. Represent the State Bar and your profession wishing to use the State Bar’s name and/or graphic identity well. Exercise good judgment. State Bar members who fail to (logo) in conjunction with the creation or maintenance of a do so, or who fail to comply with these guidelines, may not social networking presence that identifies the entity as being only forfeit the right to participate in social networking activi- sponsored by or affiliated with the State Bar. ties sponsored by the State Bar, but may also be subject to penalties and discipline for failing to adhere to applicable Administering the social networking site Rules of Professional Conduct, as well as civil or criminal lia- Each State Bar entity desiring a social network presence bility and penalties, as warranted. will designate a representative to serve as its administrator. Site administration, including setup, content development and 1. Be responsible. You are personally responsible for the management, and administration of these policies, is the material you post. All statements must be true and not mislead- responsibility of the sponsoring entity, which shall appoint an individual to administer the social network site (site adminis- More SOCIAL NETWORKING, Page 28

institutions and educators therein for Board sets policy on the usage purposes of instruction; and (4) by organizations currently approved by the Board of Trustees of the State Bar name and logo under 2-141. The following policy on the use of the purposes include without limitation: use State Bar of Montana’s name and logo to indicate endorsement by the State Bar (d) Protection of the Marks. The was adoped the the Bar Board of of Montana of products or services. State Bar of Montana, through its Trustees on Sept. 16, and has become a Executive Committee, shall take reason- new section (3-11) of the Board Policies: (c) Permissible Uses. The following able measures to protect the State Bar of uses of the marks is automatically per- Montana's interests in the marks, includ- Use of Organization Name and Logo mitted (and an implied license given) in ing but not limited to: the following limited circumstances: (1) seeking trademark registration (a) Purpose and Objective. The State under state or federal law; Bar of Montana’s name, logo, and other (1) by members of the State Bar of (2) requesting all users of the marks marks (collectively “the marks”) are Montana (including firms or associa- to use a trademark disclaimer (super- valuable property of the State Bar of tions of members) to indicate mem- script “TM” for trademark, “SM” for Montana, protectable under state and bership or affiliation with the State service mark or “®” for a federally- federal law. In order to avoid inadver- Bar of Montana without indication or registered mark) where appropriate tent or purposeful misuse of the marks the appearance of endorsement by to indicate the State Bar of by external persons or entities, the Board the State Bar of Montana of the Montana’s claim of trademark rights of Trustees adopts the following policy. member’s products or services; in the marks, and as a condition of (2) by persons or entities for non- the use of the marks (whether (b) Impermissible Uses. Except upon commercial purposes (i.e. for infor- expressed or implied); the express, written permission or mation or comment) to provide a (3) requesting unauthorized users of license of the State Bar of Montana, no webpage link or other contact infor- the marks to cease and desist such person or entity may use the marks for mation of the State Bar of Montana; use.  commercial purposes. Such commercial (3) by ABA-accredited educational

PAGE 14 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 Upcoming CLE seminars for Montana lawyers

CLEs with Ethics & SAMI* credits Other web & phone CLEs for Montana credit *Substance Abuse / Mental Impairment are: 5.0 Ethics credits required every 3 years – 1.0 of them must be a SAMI credit. See www.montanabar.org for SAMI updates.  For the State Bar of Montana’s approved online CLEs, go to www.montanabar.org and click CLE / December 10 Helena – Metcalf Building, Capitol Complex Online CLE Courses State Ethics Law 3.0 CLE credits, including 3,0 Ethics (no SAMI) credits. Presented by the state Personnel Division,  MTLA's SeminarWeb Live! Seminars at www.sem- (406) 444-3985 inarweblive.com/mt/index.cfm?showfullpage=1&eve nt=showAppPage&pg=semwebCatalog&panel=bro January 19 Billings – Holiday Inn Grand wseLive Employment Law Alphabet Soup 6.0 CLE credits, including 1.0 Ethics (no SAMI) credit. Presented by the National  Lorman Education Services' teleconferences at Business Institute, (800) 930-6182 www.lorman.com/teleconferences/

February 23 Great Falls – Holy Spirit Parish Hall  The National Business Institute's live teleconfer- Annual Red Mass Ethics CLE "Ethical Considerations: Candor ences at www.nbi-sems.com/Default.aspx/? Amongst the Court & Counsel;” presenter: Hon. John Warner, NavigationDataSource1=N:304 retired Supreme Court Justice. Voluntary luncheon at Parish Hall at noon; CLE at 1:30 p.m.; Red Mass at conclusion of CLE (see story below) December 21 Helena – Metcalf Building, Capitol Complex All other CLEs Preventing Harassment 3.0 CLE credits. Presented by the state Personnel Division, (406) 444-3985 December 7 Helena – Metcalf Building, Capitol Complex January 7 Teleconference Montana’s Wrongful Discharge Act 3.0 CLE credits. Paralegal Seminar on Protecting the Child’s Rights 1.0 CLE Presented by the state Personnel Division, (406) 444-3985 credits. Presented by the Montana Association of Legal Assistants, (406) 546-2150 December 7 Teleconference Gathering Necessary Data 1.50 CLE credits. Presented by January 14-16 Big Sky Resort Cannon, (800) 775-7654 Annual CLE & Ski 10.0 CLE credits. Presented by the CLE Institute of the State Bar of Montana, (406) 447-2206. Program December 9 Helena – Montana Club details will be mailed to State Bar members and presented at Medical Marijuana Law 1.0 CLE credit. Presented by the 1st www.montanabar.org. Judicial District Bar, (406) 457-2011 February 4 Teleconference December 15 Helena – Metcalf Building, Capitol Complex Nuts and Bolts of Legal Writing (Paralegal Seminar) 1.0 Writing Administrative Rules of Montana 10.0 CLE credits. CLE credit. Presented by the Montana Association of Legal Presented by the state Personnel Division, (406) 444-3985 Assistants, (406) 546-2150

of Great Falls area attorneys – Mary Ethics CLE & Red Mass set for Great Falls Matelich, Glenn Tremper, Richard Martin, Dale Schwanke, Karen Reiff, The 4th Annual Red Mass Ethics CLE Following the CLE a traditional Red Theresa Diekhans, George Darragh, and will be held in Great Falls at 1:30 p.m. Mass will be hosted by the Parish at the Anders Berry. on Feb. 23 at Holy Spirit Parish, featur- Parish Hall with Great Falls-Billings The mass, and a noon luncheon that ing retired Supreme Court Justice John Diocese Bishop Michael Warfel presid- will precede the CLE, are optional, but Warner. ing. The custom of a special mass for all CLE attendees and their spouses or The CLE will be open to both lawyers the bench and bar arose in 13th Century guests are invited to attend both. There and paralegals. CLE credit is pending, Europe. will be a charge of $25 for the CLE ses- but the CLE will qualify for at least 1.0 The CLE and associated events are sion and the luncheon will cost $10 a Ethics credit. sponsored by the Parish and a committee person.

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 15 State Bar of Montana Bookstore These Montana legal manuals and videos are for sale or rent via this mail-order catalog. Other Montana Bar-produced video seminars, are available for download to your computer on the Online CLE catalog at www.montanabar.org.

LEGAL PUBLICATIONS MT Family Law Form Book MONTANA CD/DVD 2005, 93 pages incl. 26 forms SEMINAR RENTALS Montana Real Estate Transactions Book and CD $150 2010, 360 pages, $180 (Maximum self-study credits Public Discipline Under MT Rules is 5.0 per year) Montana Citizens’ Guide to the of Professional Conduct Courts 2010 Annual Meeting CLEs (Audio) 2009, 115 pages annotated 2010, 20 pages, print copy $10 Rent any 5 (audio) DVDs for $150 plus $50 Free download at www.montanabar.org Book $35 deposit; includes written materials on CD 1. Supreme Court Case Update Montana Students’ Guide Public Information Flyers 2. Ethics & Technology to Turning 18 tri-fold brochures, $10/bundle of 100 3. Social Media in Employment; Probate 2008, 22 pages, CD $10 Client Bill of Rights & Civil Hearing Delays; Attorneys’ Free download at www.montanabar.org Dispute Resolution Criticism of Judges Divorce in Montana 4. MTLA Update; Uniform Laws Update Montana Probate Forms How Lawyers Set Their Fees 5. SAMI Part I; Health Reform 101 2006, 288 pages Purchasing Your Home 6. Changes in Civil Procedure; SAMI Part Book plus CD $150 Renting a House or Apartment II Small Claims Court 7. Health Reform 102; Hot Topics Facing Civil Jury Instructions After an Auto Accident U.S. Attorney’s Office (MPI – MT Pattern Instructions) When You Need a Lawyer 8. MDTL Update; Medical Marijuana 1999 w/2003 Update, 400 pages Wills & Probate Panel Book plus CD $200 9. Changes in Federal Pleading Stan- Statute of Limitations Manual dards; Energy Issues Criminal Jury Instructions 1998, 95 pages w/2001 Update 10. Federal Tax Update; Ethics 20/20 & New 2010 edition Book $25 Social Media. 650 pages, on editable CD only CD $130 Step-parent Adoption Forms 2010 Eminent Domain Update 2003, 5 forms 5 DVD set $150 plus $50 deposit Handbook for Guardians & Book $20 or separately for $35, plus $25 deposit Conservators Includes written materials on CD 2005, 60 pages incl. 5 forms U.S. & Montana Constitutions Book plus CD $150 Pocket-sized booklet, $4 each 2009 Substance Abuse/Mental Impairment Presentation 1.0 SAMI credit 2011 Lawyers’ Deskbook & University of Montana Law Review $35, plus $25 deposit Directory Subscribe at www.umt.edu/mlr DVD, print materials included Pre-Order Book, $40 Public Lands Law Review Mid-year update CD for 2010, $20 Subscribe at www.umt.edu/publicland

TO ORDER To pay by check, please fill out the mail-in form below: Send the item(s) circled above to: Name ______Mailing Address ______Street Address ______City, State, Zip______E-mail address______Amount Enclosed ______Mail order & check to: State Bar of Montana, PO Box 577, Helena MT 59624

To pay by credit card, please see the online Bookstore at www.montanabar.org (Payment must accompany all orders) 2009 Criminal Law Ethics DVDs AUDIO CDS CLE & SKI 6 DVDs may be rented as a set ($150 plus Ethics Opinions & Notary Opinion, Changes in 1-hour length, 1.0 CLE credit, $50 each Rules of Civil Procedure, Litigating in Economic $50 deposit) or separately ($35 each plus Written material included Red Zone, Liability While Serving on Boards, $25 deposit) Property Law  1. Do Not Reveal Your Client’s Perjury – Refresher on the Indian Child Welfare Act 1.0 Ethics credit Construction CLE Phone CLE ADR, Federal Contracts, Supreme Court Cases, 2. Fairness & Due Process in 1 Self-study “Other” CLE credit Construction Lawyers Speak, Contractor’ Disciplinary Proceeding – 1.0 $50, includes written material Perspective, Contract Claims with DOT, Ethics credit  Psychology in Construction Cases 3. In Praise of the Guilty Project – .75 Tools to Help Manage Probates Ethics credit  Elder Law 4. Loyalty Apocalypse – 1.25 Ethics Guardianship & Conservatorship Mental Impairment Among Lawyers, Powers of Attorney, Conservatorship & Guardianship, credits.  5. Accountability for Prosecutorial & ADA Update MontGuides, Medicare 101 Defense Attorney Misconduct – .75  Ethics credits Divorces Involving State Eminent Domain 6. Common Dilemmas in Criminal Ethics Retirement Accounts Its Legal Foundation, Constitution & Representing Landowners, Negotiating with DOT, Land Use – 1.0 Ethics credit.  Using Discovery in Family Law Interaction, Recent Game Farm Cases Malpractice Prevention Ethics Series Cases 6 DVDs may be rented as a set ($150 plus Energy Update  What Every Attorney Needs to Wind development, NW Energy’s Role, Federal $50 deposit) or separately ($35 each plus Energy Regulatory Commission, Surface Access $25 deposit) Know About the HITECH Act Rights, Oil & Gas Drainage, NEPA 1. Malpractice Traps - 1.0 Ethics credit Two CDs 2. Dancing in the Minefield: Ethics in the - Part I, General Overview Foreclosure Update Electronic Era - 2.0 Ethics credits - Part II, Busines Associates and Conflict Check, Title Policy, Choosing Type of 3. The Ten C’s to Malpractice Prevention Agreements under HITECH Foreclosure, Bankruptcy, Summary Judgment - 1.0 Ethics credit 4. Malpractice and the Impaired Lawyer General Practice (Glasgow CLE) - 1.0 Ethics/SAMI credit CLE MATERIALS Public Roads, Rights of Way, Substance Abuse & on CD or via e-mail, $35 Mental Impairment, Ethics, Federal Lands 5. Risk Evaluation from an Insurer’s Planning, Family Law, Wind Power & Cell Towers, Perspective - 1.0 Ethics credit Mental Competency 6. The Impossible Happens: Your Client CLE materials from 2010 Turns on You - 1.0 General CLE cred State and Federal Planning Rules it Annual Meeting ‘Hot Topics’ CLEs FOIA & Sunshine Laws; DNRC, Forest Service & Supreme court Update, Ethics & Technology, Social BLM Planning; MEPA, State Lands & Trust Media in Employment, Probate & Civil Hearing Obligations FOR THE FOLLOWING: Delays, Attorneys’ Criticism of Judges, Uniform Send 2 checks – one for $75 rental fee, one Laws, SAMI, Health Reform Act, Medical for $25 security deposit Marijuana, Federal Pleading Standards, Wind Development, Federal Tax Update, Ethics & Social Media Consumer Law Series Phone CLEs – Parts I, II, & III To request CLE materials Attorney-Paralegal Practice Tips 3.0 CLE credits, 3-CD set Malpractice & Impaired Lawyers, Going Paperless, from 2009 or earlier, Estate Planning, Ethics & Social Networking, contact Gino Dunfee at 447-2206 Surviving Credit Card Debt Federal Rules Change, Employment ADA, Access 5.0 CLE credits to Justice for Aged 2 DVDs, print materials on CD included Bankruptcy Consumer Law, Mortgage Issues, Dept. of For online CLE seminars, go to 2007 Montana Ethics CLE, Butte Revenue Update, Means Testing, Compliance www.montanabar.org 5.0 CLE credits, inc. 5.0 Ethics credits Issues, Practice Issues, Foreclosure Issues, under “CLE” Chapter 7, Fraud, Judges’ Update Set of 4 DVDs, print materials included

FREE 16-CD ‘TRIAL GUIDES’ SET Basic Office Practice With $50 refundable deposit Mtn. States Transmission Intertie, 2nd Amendment Law, Pitfalls into Windfalls, Real Estate, Ethics ‘Facts Can’t Speak for Themselves’ Tips, Malpractice & Impaired Lawyers No CLE credit Bench-Bar Conference Attorney-Client Privilege, Limited Representation, Civility, Bankruptcy Bomb, Oral Argument Tips

State Bar of Montana members get 15% discount off all ABA publications. Go to www.ababooks.org and enter the code PAB7EMTB when ordering. Reactions to limited-scope representation

The Montana Supreme Court’s Mr. Sullivan requested that Bar mended enhanced limited-scope rep- order proposing new rules to encour- members and others respond to the resentation, one from a North Dakota age limited-scope representation, idea of more more limited-scope rep- attorney, and one from the State Bar otherwise known as “unbundling” of resentation in Montana and promised Ethics Committee in the form of a legal services, was featured in the that those responses would be pub- formal Ethics Opinion. November Montana Lawyer maga- lished by the Bar. On these two See further responses under zine, along with a President’s pages are three of those responses, “Front Burner” at www.montan- Message by State Bar President Joe one by a member of the access-to- abar.org. Sullivan addressing the issue. justice working group that recom-

Probably the biggest single objection to the proposed rules is Giving a ‘safe harbor’ to practices the so called ghostwriting provision. The issue has moved beyond whether document assistance is allowed (it is) to already in place in Montana law whether the author of the document must be disclosed within First of all, I’d like to thank all involved for the frank and the four corners of the document. The proposed rules follow honest discussion about limited scope representation (LSR). California, where a good 20 years of experience shows the From the President’s Message, to the Cover Story, to the State proposed rule (not requiring disclosure of the author) works Bar Ethics Committee, it is clear all concerned have the best well. This rule avoids the chilling affect disclosure would interests of our justice system in mind, and want to do the result in. Of course, opposing counsel and the court know right thing regarding LSR. Toward that end, a few facts seem to have become lost in Further discussion of this issue is featured at the discussion. the ww.montanabar.org home page First, LSR is here now…it is permitted, it is ethical, and it has been around in Montana since at least 2004. Rule 1.2 (c) provides: “A lawyer may limit the scope of the representation help with a document occurred, as it is presumably well writ- if the limitation is reasonable under the circumstances and the ten. But the end result is beneficial – a well prepared docu- client gives informed consent.” ment helps all concerned. The rules proposed by the Montana Supreme Court Equal Last, as President Sullivan’s article points out, LSR has Justice Task Force, the Montana Supreme Court Commission been around for some 20 years in other states, and it “never on Self-Represented Litigants, and the Access to Justice caught on in any significant way.” That is fine. But for those Committee of the State Bar simply provide “best practices” attorneys and clients who may want to engage in LSR, let and “safe harbors.” As the Montana Supreme Court states in them do so using “best practices.” its order asking for comment, the rules would “encourage Kudos to the Supreme Court for considering the issue, and LSR,” recognizing LSR is here now. indeed indicating their inclination to encourage LSR in One very important “safe harbor” is the LSR arrangement Montana. must be in writing. This makes it clear what representation is covered, and what is not. This will take care of many of the – Russell C. Fagg concerns voiced by well-meaning objectors to the proposed District Court judge, Billings rules. (Member, drafting committee of propose rules)

In most cases the purchasers of the ghostwriters’ services Problems with the ghostwriting are poorly served because they do not know how to handle proceedings beyond the initial filings. Mr. Sullivan made some very good points in the President's Compounding the problem for these individuals, judges Message section of the Novemer issue of The Montana can tell when pleadings are ghostwritten, and they will fre- Lawyer. I practice in the area of collection law in North quently withhold the procedural leniency often granted to true Dakota, South Dakota, Minnesota, and Montana. We pro se parties. encounter ghostwritten legal documents much more frequently We rarely encounter attorney ghostwriters who are licensed now than we have in the past, primarily because of debtors’ in the states in which the ghostwritten documents will be used use of the Internet where they are able to employ ghostwriters, or filed, and I do not believe I have ever encountered them in most of whom are not admitted to the bars of the states in North Dakota. which the ghostwritten pleadings are to be filed. North Dakota has set out the requirements for attorneys

PAGE 18 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 who assist otherwise unrepresented parties in N.D. R. Civ. P. matter. 11(e) as follows: (2) Filing. If the action is filed, the party who received assis- (e) Limited Representation. tance of an attorney on a limited basis must file the notice of limited representation with the court. (1) Notice. An attorney who assists an otherwise unrepresented party on a limited basis must serve a notice of limited repre- (3) Scope of Rule. The requirements of this rule apply to sentation on each party involved in the matter. The notice must every pleading, written motion and other paper signed by an state precisely the scope of the limited representation. An attorney acting within the scope of a limited representation. attorney who seeks to act beyond the stated scope of the limit- ed representation must serve an amended notice of limited rep- – Clifton Rodenburg resentation. The attorney must also serve a notice of termina- Johnson, Rodenburg & Lauinger tion of limited representation on each party involved in the Fargo, N.D.

to them. This, the committee fears, could create a second tier Excerpt of State Bar Ethics Committee of representation that could result in more confusion to clients opinion on limited-scope representation and greater time and expense to the courts and clients of coun- sel serving opposite a pro se litigant utilizing a limited scope Facts: The Montana Supreme Court has requested members attorney. The current limited scope rule 1.2, in combination of the Bar comment about proposed changes to the Montana with the existing rules of conduct (specifically Rule 1.5 on Rules of Professional Conduct and Civil Procedure. The pro- fees), are sufficient to address the stated goal. Current rules posed changes are to Rules 1.1, 1.2 and 4.2 of the Rules of provide a substantial amount of elasticity, raising questions Professional Conduct and Rule 11 of the Montana Rules of about the need for revisions. Civil Procedure, along with the addition of two new Rules of Civil Procedure, 4.2 and 4.3. The stated intent of the propos- The Ethics Committee’s full opinion on this als is primarily to encourage limited scope representation as issue will be found at www.montanabar.org. one means of addressing the unmet legal needs of low to mod- erate income Montanans. The Ethics Committee offers the following Opinion pur- 2. Yes. The proposed amendment to Rule 11 of Montana’s suant to the mandate of Article III of the State Bar Rules of Civil Procedure invites substandard attorney work Constitution to review the Rules of Professional Conduct and and increased invalid filings that will only serve to clog recommend changes. already crowded Court dockets. Questions Presented: 3. No. The proposed amendments, to the extent they promote 1. Are the proposed amendments to Montana Rules of the so-called “unbundling” of lawyer services, tend to diminish Professional Conduct 1.1 and 1.2 necessary to meet the stated and de-value the lawyer’s counseling or “advisor” role and goal of the Court? instead emphasize the lawyer’s scrivener role. While this changed emphasis arguably serves the client’s “wants,” it dis- 2. Does the proposed amendment to permit “ghostwriting” courages qualitative attention to the client’s “needs” and in under Rule 11 of Montana’s Rules of Civil Procedure reduce that sense actually undermines the stated goal of the proposed the standard of care by an attorney? amendments.

3. Are the proposed amendments consistent with the lawyer’s Conclusion: traditional “functions” as an “advisor,” “advocate,” and “nego- The Equal Justice Task Force Working Group has clearly tiator”? (See Preamble: A Lawyer’s Responsibilities (3) of the been working to address the issue of representation for indi- Montana Rules of Professional Conduct.) gent Montanans for a long time. The Ethics Committee respects the time and attention paid and admires their resolve. Short Answer: The work done to date is commendable, as is the goal. 1. No. The Ethics Committee believes that while the goal However the Ethics Committee suggests that to a significant behind the proposed rules is commendable, the proposed extent the stated goal can be accomplished without the rule amendments are unnecessary because Rule 1.2(c) and 1.5(b) changes proposed. The Ethics Committee would welcome an already authorize limited scope representation “if the limita- opportunity to meet with the Working Group to develop lan- tion is reasonable under the circumstances.” Conversely, if the guage within the Montana Rules of Professional Conduct that limitation is not “reasonable under the circumstances,” it would address the need identified, without invoking a sea should not be permitted. The proposed amendments appear change to full or limited service representations.  aimed at authorizing what otherwise would be “unreasonable” limited scope representations and insulating lawyers who agree

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 19

COURTS Orders propose appellate procedure changes

ed children, all transcripts, briefs, motions, and other papers 90-day comment periods set for each shall be served on both the county attorney and the attorney general. In those types of cases, transcripts shall be served Two orders issued on Dec. 3 by the Montana Supreme Court only on the attorney general’s office. contain proposed changes to the Montana Rules of Appellate Procedure. Both orders are numbered. AF 07-0016. The two Rule 11. Form of briefs and other papers – duplication. orders, with the comment periods set by the Court, are: (1) Form of briefs, appendices, petitions, including petitions for writs, motions, and other papers. Briefs, appendices, peti- tions, motions, and other papers shall be produced by any stan- IN RE PROPOSED CHANGES TO THE MONTANA dard printing, word processing, typewriting, or equivalent RULES OF APPELLATE PROCEDURE process capable of producing a clear black image on paper. Such paper shall be standard quality, opaque, unglazed, The Office of the Appellate Defender (OAD) has asked the acid-free, recycled paper, 25% cotton fiber content, with a Court to adopt certain changes to the Montana Rules of minimum of 50% recycled content, of which 10% shall be Appellate Procedure with the primary purpose of cutting post-consumer waste. unnecessary costs. The proposed changes would: (1) require court reporters to file certificates of service of transcripts on IT IS ORDERED that public comments will be accepted on appeal; (2) eliminate the requirement that transcripts be pro- the above proposed changes to the Montana Rules of Appellate vided to both the Attorney General and the county attorney in Procedure for 90 days following the date of this Order. Such certain types of appeals; and (3) eliminate the requirement that comments shall be filed, in writing, with the Clerk of this briefs filed with the Court be printed on bond paper. Court. Shown below are the proposed Rules 8, 10, and 11 of the Rules of Appellate Procedure, intended to accomplish the pur- poses suggested by OAD. IN RE PROPOSED CHANGES TO RULE 7 OF THE MONTANA RULES OF APPELLATE PROCEDURE

Rule 8. The record. The Court is considering changing M. R. App. P. 7, regard- . . . ing mandatory appellate alternative dispute resolution, to allow (4) Format, filing and service of transcripts, and number of the parties to an appeal subject to that rule a second opportuni- copies. ty to select their own appellate mediator. In that regard, the (a) A transcript shall contain a title page, index pages list- Court is considering adding the language below to M. R. App. ing witnesses and exhibits, as applicable, the body of the P. 7(4)(d): transcript, and a page certifying in writing - and executed by the court reporter - that the tran- script is a true and correct verbatim record of the proceed- Rule 7. Mandatory appellate alternative dispute resolution. ing transcribed. The court reporter shall also include a cer- . . . tificate of service of the transcript on all applicable parties. (4) Selection or appointment and payment of mediator – Each page shall measure 8 ½ by 11 inches, with com- immunity. bined left and right standard text margins not exceeding . . . 2.25 inches. A page number shall appear in the upper right (d) In the event the parties do not voluntarily and timely corner of each page. select a mediator, the clerk of the supreme court shall appoint as a mediator for the appeal the next self-nominat- Rule 10. Filing and service of papers – generally. ed attorney on a list maintained by the clerk for that pur- (2) Service of all papers required. Copies of all papers, includ- pose pursuant to section (4)(e) of this rule. The order of ing any transcript, filed by any party and not required by these appointment, substantially complying with Form 6 in the rules to be served by the clerk of the supreme court shall, at or Appendix of Forms, shall be signed by the clerk of the before the time of filing, be served by the party on all other supreme court and served upon the mediator and the par- parties to the appeal or review. Service on a party represented ties to the appeal. The parties may substitute a mediator of by counsel shall be made on counsel. In criminal cases their choice for the mediator appointed by the clerk only if, appealed by the defendant and in appeals relating to involun- within 10 days of the clerk’s appointment, they file a writ- tary commitment and proceedings regarding abused or neglect- ten stipulation signed by all parties agreeing upon a substi- tute mediator. The parties must also serve a copy of such a

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 21 stipulation upon the mediator appointed by the clerk. the above proposed change to M. R. App. P. 7 for 90 days fol- lowing the date of this Order. Such comments shall IT IS ORDERED that public comments will be accepted on be filed, in writing, with the Clerk of this Court.  Forum discusses merit selection of MT judges

By the Helena Independent Record Gray is backing a “21st century merit “Voters are very reluctant to give up selection plan” and is going to go their vote even in elections where they Retired Montana Supreme Court approach the Legislature in an attempt to don’t elect to cast that vote,” he said. Chief Justice Karla Gray thinks using a get a referendum bill to the voters. “I Gray and fellow panelist District merit-selection plan to choose the state’s think the public is ready to get engaged Court Judge Dorothy McCarter said if judges would better protect judicial in this issue,” she said. they had not initially been appointed to impartiality and fairness. Gray is plan- “Is the way we go about it sufficient their positions, they probably never ning on taking this idea to the enough for people to cast an informed would have served. McCarter was Legislature in hopes of bringing a shift vote for judge or justice?” Gray asked. appointed by a governor to the First from the current nonpartisan elections In a merit-selection system, a citizen Judicial District in 1989 and later ran for for judges. commission reviews applicants for a the position in 1992. During a public forumin Helena on judicial seat and then recommends three “Educating the public on candidates Nov. 16, Gray told the audience she candidates to the governor for appoint- should take priority over spending and thinks the current system excludes far ment. Voters then decide whether to popularity ads,” McCarter said. too many talented people. retain the appointed judges. Currently, McCarter said it is difficult to sit on a “What about all of the lawyers in nine states use merit selection. high-profile case when she knows those small-town Montana and other cities that Keynote speaker of the forum, James in the audience will be voting in her would be fabulous?” she asked about 60 Sample, a professor at Hofstra School of election. She said she has been able to people who were attending the forum, Law, said it has been 25 years since any rise above the feeling “but it’s human which was titled Selecting Montana state has converted to the merit system. nature to keep that in the back of your Judges: Protecting Impartiality, Ensuring Nevada attempted to change and failed mind.” Accountability and Preserving Public just two weeks ago, he said. Forum panelist Randy Cox, a civil lit- Trust. “The primary focus needs to be on igator, said judge races are different “The election process is tainted once improving the system we have,” he said. from those of other elected officials and it becomes a political race,” Gray said. Sample said enacting change will be a should be treated as such. “In order to “I think the worst thing about judicial heavy lift. Referendums fail because have good judges, we have to move elections is the money. It’s essentially a even those who go to the polls often them away from politics and not into popularity contest and a money contest.” don’t vote in judicial elections. politics,” he said. 

bridge. Public Defenders can still represent Strahan testified against St. Dennis in a trial that was moved to Havre because of pre- co-defendants, prosecutor says trial publicity. The Hill County jury found St. Dennis guilty and he was sentenced to 100 From the Missoulian years in the Montana State Prison with no chance of parole for 40 years. A Montana Supreme Court ruling upholding the homicide Strahan then cut a deal and pleaded guilty to accountability conviction of a Missoula teenager “essentially preserves the to deliberate homicide. status quo” in cases where co-defendants are represented by Although St. Dennis’s attorney argued that the fact that both public defenders, Missoula County Attorney Fred Van men were represented by the Office of the Public Defender Valkenburg said on Oct. 29. was a conflict of interest that violated St. Dennis’s constitu- The court’s ruling on Oct. 28 came in a case filed by tional rights, the court disagreed. Anthony St. Dennis, convicted of deliberate homicide in the Such situations, Justice Patricia Cotter wrote for the majori- fatal beating in 2007 of sometimes-homeless Missoula veteran ty, should be decided on a case-by-case basis. Forrest Clayton Salcido. Dustin Strahan, then 21, was accused along with St. Dennis, “I THINK EVERYBODY except the ACLU (which had who was 18 at the time, of beating and stomping the short, filed an amicus brief in the case) was relieved that it came out slight 56-year-old Salcido just off the California Street foot-

PAGE 22 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 the way it did,” Van Valkenburg said of the court’s decision. The first case that could raise the [public defender] issue ORAL ARGUMENTS anew was coming up soon in Missoula County District Court. The Montana Supreme Court will hear the following oral Raymond Big Beaver stands accused along with Eugene arguments: Gonzalez of fatally punching and kicking Johnny Belmarez on April 12 behind a West Broadway business. January Each man is charged with deliberate homicide and each is represented by a public defender.  Case No. DA 10-0102 GASTON ENGINEERING & A status hearing in Big Beaver's case was set for Nov. 9, SURVEYING, P.C., Plaintiff and Appellant, v. OAKWOOD and Gonzalez has a status hearing on Dec. 16, with trial PROPERTIES, LLC, and YELLOWSTONE BANK, scheduled for Jan. 21. Defendants and Appellees. “It’s a very similar case to St. Dennis,” said Van Oral argument is set for Wednesday, Jan. 19, at 9:30 Valkenburg, adding that “I don’t think there's any conflict in a.m. in the courtroom of the Montana Supreme Court, having separate (public defender) offices represent the defen- Justice Building, Helena. dants.”  Case No. OP 10-0280 UNITED STATES OF AMERICA, ED SHEEHY, WHO heads the regional public defender Petitioner v. JUVENILE MALE, Respondent. office in Missoula, did not respond to a Missoulian call seek- Oral argument is set for Wednesday, Jan. 19, at 1:30 ing comment. But Sheehy assigned public defenders from p.m. in the courtroom of the Montana Supreme Court, different offices to represent Big Beaver and Gonzalez, just Justice Building, Helena. as he did for St. Dennis and Strahan. If any conflict is perceived in that case or any others, a TO VIEW BRIEFS containing details on each case, go to judge could appoint someone outside the public defender http://courts.mt.gov/library, click on “Cases” in the top navi- system to represent one of the defendants, Van Valkenburg gation bar, and search for the case by names or case num- said.  ber.

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 23 BOOK REVIEW Roosevelt’s jousting justices

Review by Adam Cohen through Whitman College in Walla Walla by working as a jani- for the New York Times tor.

n these equable days on the Supreme Court, when dissents THE JUSTICES-TO-BE energetically plotted their are fashioned as polite disagreements and Antonin Scalia ascents. Frankfurter’s academic brilliance cat- I and Ruth Bader Ginsburg are the best of friends, it is hard apulted him onto the Harvard Law School fac- to imagine a time when the Court was a roiling caldron of ill ulty. From there, he courted Roosevelt assidu- will. But so it has been at various points in its history – “nine ously in person and in letters. scorpions in a bottle,” in the phrase attributed, perhaps erro- Douglas also made his mark in academia, neously, to Oliver Wendell Holmes Jr. at Columbia Law School and then at Yale, Noah Feldman, a Harvard where he became a Sterling professor, the Law School professor, draws school’s highest distinction, before he turned Frankfurter SCORPIONS on that barbed aphorism for 34. He got a seat on the newly created The Battles and Triumphs of the title of his smart and Securities & Exchange Commission and par- FDR’s Great Supreme Court engaging group biography of layed that low-profile post into the high-pro- Justices four larger-than-life justices file chairmanship by barnstorming for the job appointed by Franklin D. and intimating that he had an offer to be dean By Noah Feldman Roosevelt. Felix Frankfurter, of Yale Law School. Illustrated. 513 pp. $30 Robert Jackson, Hugo Black, Jackson’s ambitions took him from placid and William O. Douglas first western New York into the New Deal mael- served together in 1941, strom. While serving as assistant attorney Jackson when World War II was raging in Europe, and their con- general, he wrote to Roosevelt to offer sup- tentious terms continued through 1954, when Brown v. Board port for the court-packing plan, Roosevelt’s of Education was decided. threat to increase the number of justices on Although all were committed New Dealers and liberals, the Supreme Court to make it more pro-New each adopted his own theory of the Constitution. The visions Deal. Coming at a time when even many they expounded still hold sway and, to a striking extent, their Roosevelt intimates were critical of the idea, interpretive battles are the ones that continue to preoccupy Jackson’s encouraging words landed him in lawyers, law professors and judges. the president’s inner circle. Black’s rise was the most Faustian. Intent FOR MEN WHOSE differences would be the stuff of leg- on a political career, he joined the Ku Klux Black end, these four had remarkably parallel early lives. All were Klan and won a Senate seat with the backing self-made outsiders. Frankfurter was born in Vienna and grew of its powerful state political machine. He cut up on the Lower East Side of Manhattan, where his father sold his ties after the election, when the hatemon- linens, silks and furs door-to-door. A City College graduate, he gers had served their purpose. was toiling in New York’s Tenement House Department when he quixotically set his sights on Harvard Law School. THE NARRATIVE PICKS UP steam Jackson was born into a family of small farmers in the when it turns from what drew these men western New York hamlet of Frewsburg. He studied at Albany together to what tore them apart. The pages Law School but did not graduate – the last justice appointed to overflow with rivalries and a “Devil’s Douglas the Court not to have finished law school. A country lawyer, Dictionary” of invective. Jackson blasts Black he argued in makeshift courtrooms in schools, churches and, for not recusing himself from a case that his as he later recalled, a barn. former law partner argued. Black exacts his Black was the eighth and last child of a rural Alabama revenge by persuading the president not to appoint Jackson shopkeeper. He grew up in an unpainted house with farm ani- chief justice. Douglas assails Frankfurter as a pedant, com- mals out front, and attended the University of Alabama’s law plaining that his speeches at the justices’ conferences last pre- school when there were just two professors and roughly 40 cisely 50 minutes – the length of a Harvard Law School class. students. Frankfurter calls Douglas one of the “two completely evil men Douglas, a Yakima, Wash., native, had the most hardscrab- ble upbringing. After his father, an itinerant minister, died, he was raised by a struggling single mother. He paid his way JOUSTING JUSTICES, Page 34

PAGE 24 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 COMMENTARY When a physician testifies

By Dr. W. David Herbert familiar with how a particular physician’s specialty is evaluat- Billings physician and attorney ed by his colleagues. I have been licensed to practice a medical specialty for rom the time they begin their professional training, more than 30 years and have been an attorney for more than physicians are inculcated with the idea that the practice 20 years. It has only recently come to my attention that many Fof medicine is both an art and a science. This concept Montana attorneys may not be familiar with the concept of the was really brought home to me when I first began my practice practice of medicine being an art and a science. in the military. I have been a member of the Montana Bar for less than a I was going over an X-ray with an older gentleman. I year. I recently became involved with a case in which medical explained to him that the X-ray did not tell me where his pain testimony was pivotal as to how the jury would decide the was. The X-ray only indicated that a particular finding or case. I believe that the testimony of a radiologist was the pri- abnormality could be causing the pain that he told me he felt mary basis of their guilty verdict. The radiologist apparently during my physical exam of him. made a statement about a prior injury not being evident on a Then I told him that the X-ray changes did not tell me that MRI. When asked why another non-testifying radiologist stat- he had a bone infection, but only gave rise to a suspicion or ed that there was evidence of a prior injury, the testifying radi- possibility of such an infection. Other bone scans and even a ologist stated that he was better at reading MRIs than the other biopsy would be necessary to confirm an infection to a degree radiologist. of medical certainty. I believe that the testifying radiologist’s testimony could At the end of all this, I can clearly remember him making have been properly impeached had the defense attorney been the statement that what I was engaging in was certainly not aware of the concepts contained in the above discussion.  “rocket science.” True, the practice of medicine is not “rocket science.” When people say “rocket science” it is obvious to me that they are talking about applied physics and, more specifically, Newtonian physics. The practice of medicine does not equate to applied Newtonian physics. There is certainly a lot of art in the practice of medicine. An attorney who has a firm grasp of this concept of what the practice of medicine is – and is familiar with how physi- cian competence is evaluated by the medical profession – will be in a much better position when taking a physician’s testi- mony at trial or in deposition. When physicians are licensed and certified in their special- ties they are not expected to demonstrate 100 percent compe- tence in what they are doing. Actually physicians are continu- ally evaluated and monitored when they are members of hospi- tal medical staffs. Many professional boards require that a physician be tested to be initially certified and periodically tested to maintain certification after that. A physician is con- sidered competent if he is right 75 or 80 percent of the time. For example, a radiologist’s findings may be compared to other radiologists’ findings using inter-rater reliability tests.

ANY TIME AN ATTORNEY is about to take the testimo- ny of a physician at trial or in deposition, I believe it is essen- tial for the attorney to have the physician agree with the state- ment that the practice of medicine is both an art and a science. This is especially true if the physician’s testimony is adverse to the attorney’s client’s interests. A physician who disagrees with this statement is disagreeing with virtually all of his med- ical colleagues. Also, it is incumbent upon the attorney to be intimately

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 25

BOARD MEETING SUMMARY, from Page 13 MONTANA DEFENSE TRIAL LAWYERS ASSOCI- ATION – Mark Parker MDTLA held its annual CLE in November in Missoula. the ABA’s bylaws to provide additional seats in the ABA So far this year, the MDTLA has submitted one amicus to House of Representatives for American Samoa, Guam, and the the Montana Supreme Court. Commonwealth of the Northern Marianna Islands. The MDTLA boasts more than 400 members. The House of Delegates adopted a recommendation com- memorating the 50th anniversary of the publication of Harper DISPUTE RESOLUTION COMMITTEE – Mark Parker Lee’s novel, “To Kill a Mockingbird.” The Dispute Resolution Committee has been fairly active U.S. Supreme Court Justice Ruth Bader Ginsburg intro- this year with respect to numerous matters, including partici- duced incoming new ABA President Stephen N.Zack. pating in ABA Dispute Resolution teleconferences and co- sponsoring a three-day conference entitled “Horizons of NORTHWEST BAR ASSOCIATION – Randy Snyder Mediation Practice” where leading scholar professor Joseph B. The Northwest Bar hosts a monthly luncheon – CLEs with Stulberg attended and held panels and workshops. 40-plus members in attendance, now going on two years. The There has been an effort by the DR Committee members, Bar has an active executive committee which plans meetings, with the assistance of UM Law Professor Eduardo Capulong, CLE, and social activities. The Bar created additional “mem- to meet with the chief justice and discuss appellate mediation bers at large” positions for the executive committee. This issues and even discussion of a full-time appellate mediator helped spread the workload, provided additional ideas, and with the Montana Supreme Court. serves to inspire and groom new officers. On May 12, 2010, Prof. Capulong issued a report on the The Northwest Bar will host the State Bar Annual Meeting Supreme Court Appellate Mediation Practice which addresses in Kalispell in 2011. issues about Rule 7, M.R.App.P.; concerns about why some domestic relations cases are defined out of Rule 7; and other WESTERN MONTANA BAR ASSOCIATION – Shane issues. Vannatta The Western Montana Bar Association (WMBA) is in a dra- PROFESSIONALISM COMMITTEE – Cindy Smith matic turn-around from the past few years, and was highly The Professionalism Committee has continued to plan and active this past year. The officers and board of the WMBA put on CLEs at the State Bar’s Road Show and the Annual have published a monthly newsletter, held monthly meetings Meeting. with guest speakers for 0.5 CLE credit, with attendance of 25 to 40 attorneys; hosted a memorial service to TECHNOLOGY COMMITTEE – Ryan Rusche honor members of the bar who have passed away; organized a The Committee adopted its long-range plan for 2010 – Professionalism CLE with over 100 attendees; funded a 2012. One objective for the next year will be to replace the $1,500 law school scholarship; and held its Annual Meeting in large, ABA tech CLE with multiple hour-long CLEs. July. The Committee has been discussing social networking and The WMBA Pro Bono Program, which serves Missoula, technology in general and what lawyers need to know in Mineral, and Ravalli Counties, is entering its ninth year. The today’s world in order to remain competent in the practice of program currently has sufficient funds, which are primarily law. One member has developed a “technology competency” used to fund a paralegal loaned from Montana Legal Services. list that is being debated by the Committee as a potential refer- The program initiated a pro bono mediation program last fall, ence for practitioners. which has been used extensively by the 4th Judicial District The Committee continues to provide information to mem- judges and standing masters in family law cases. Unfortu- bers via its website and electronic mail distributions. nately, pro bono referrals of family law cases has hit a snag with many attorneys refusing to take on a new family law mat- BANKRUPTCY SECTION – Darcy Crum ter because they lack the knowledge and training. The The Bankruptcy Section contributed $5,000 to Montana Committee is planning to host another pro bono family law Legal Services again this year. The money assists with the CLE. Chapter 7 self-help bankruptcy clinics MLS puts on several times a year. The Section’s annual CLE was in October in AREA E – Olivia Norlin & Ryan Rusche Missoula. The 17th Judicial District Bar Association hosted U.S. Magistrate Judge Keith Strong in Glasgow in April. Judge NONPROFIT LAW SECTION – Tim Fox Strong gave a talk entitled “Relevancy of Federal Court to the The Nonprofit Section arranged speakers on nonprofit law Rural Practitioner.” The event was well-attended. The matters for a portion of CLE & Ski last January, and are now Association continues to hold at least two meetings per year. looking to sponsor a one-day CLE on nonprofit law in 2011. Area E attorneys worked involve local lawyers and judges This past Bar dues cycle was the first cycle for the Section in the Eastern Montana Stand Down 2010 in Glendive in to solicit members. The Section had 23 dues-paying members September. A “Stand Down” is a community-based interven- as of May 19. Jill Diveley at the Bar assisted Section in get- tion program to help homeless veterans. ting the Section’s web page up and running. 

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 27 SOCIAL NETWORKING, from Page 14 7. Protect proprietary and client information. Do not discuss or misuse proprietary or confidential information, and ing. Carefully consider content; what you publish will be follow all professional and ethical rules governing the disclo- widely accessible for some time and, in some cases, indefinite- sure of information shared with you by clients. When in doubt, ly. Protect your privacy and the privacy of others, and adhere leave it out. to all statutory prescriptions and Professional Rules of Conduct governing the privacy of individuals and confidential 8. Refrain from endorsements of political candidates. The information of your clients. activities of the State Bar are defined by Montana Supreme Court rules, and those rules apply to social networking activi- 2. Be upfront, identify yourself. Your honesty - or dishon- ty. As a membership organization, the State Bar needs to avoid esty - will be quickly noticed in the social networking environ- even the appearance that it directly or indirectly endorses or ment. Use your real name, and, if relevant, your role or inter- financially supports candidates for political office. est in the topic discussed. When appropriate, make it clear you are speaking for yourself and not on the State Bar’s behalf. 9. Comply with Montana rules governing lawyer adver- tising. Comply with all restrictions governing legal advertising 3. Be civil, respectful. It’s okay to disagree with others, when posting content to any social network, including one but do not use defamatory, abusive, threatening, offensive, or being administered by an Entity. obscene language or post illegal material. 10. Do not violate antitrust laws. Antitrust laws prohibit 4. Be quick to correct an error. If you make a mistake, postings that encourage or facilitate agreements between State admit it. Quickly provide the correct information. If appropri- Bar members concerning the following, as they pertain to legal ate, modify an earlier post to make it clear that you have cor- services: prices, discounts, or terms or conditions of sale; rected an error. salaries; profits, profit margins or cost data; market shares, sales territories, or markets; allocation of customers or suppli- 5. Keep it relevant, add value. Write about what you ers; or any other term or condition related to competition. know. Information can add value if it contributes to the legal community’s knowledge or skills, improves the legal system 11. Abide by the social network’s rules. By joining a par- or public understanding of the legal system, or builds a sense ticular social network, you agree to abide by that community’s of community. terms of use, so review those terms carefully. 6. Follow copyright and fair use laws. Always give peo- Using the State Bar’s name and/or logo ple proper credit for their work. Make sure you have the right State Bar entities may incorporate the State Bar’s name to use material with attribution before publishing. It’s a good and/or logo into their social networking identity with prior practice to link to others’ work rather than reproducing it on approval from the State Bar. To create consistency and com- your site. When in doubt, as to the proprietary nature of mate- munity on the web, the State Bar has established standard logo rial, don’t use it. Recognize the potential professional and templates, disclaimers, and naming conventions. The Site legal consequences of any failure to follow applicable laws Administrator for an Entity must work with assigned staff liai- governing the use of others’ material. son from the State Bar to coordinate approval, the development of the social network graphic, and other site require- ments. Enforcing this policy The State Bar does not actively monitor these sites for inappro- priate postings. If an inappropriate posting is brought to the attention of the State Bar, howev- er, the State Bar will take appropriate action to enforce this policy. 

PAGE 28 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 DISCIPLINE RULES, from Page 7 (10)(8) Notify promptly the complainant and the lawyer that an investigation is to be initiated by Disciplinary Counsel or, where Disciplinary Counsel dismisses, provide Supreme Court pursuant to Rule 29; a concise written statement of the facts and reasons a mat- (11)(12) Hold hearings and make recommendations to the ter has been dismissed; Court concerning assessment of the costs of proceedings, (11)(9) Develop written guidelines for determining which investigations and audits pursuant to Rule 9; and matters fail to allege facts that would constitute grounds (12) Approve Disciplinary Counsel’s request to file a for- for disciplinary action; mal complaint when the facts appear to warrant discipli- (12)(10) Request the Clerk of the Supreme Court to notify nary action or transfer to disability/inactive status. each jurisdiction in which a lawyer is admitted of a transfer to or from disability/inactive status, reinstatement, readmis- C. Quorum. Five members of an Adjudicatory Panel, at least sion or any public discipline imposed in this state; three of whom are lawyers, shall constitute a quorum, howev- (13)(11) Whenever costs have been assessed against a er, any act of the Adjudicatory. Panel shall require the vote of lawyer by the Supreme Court, assemble and serve on the three members. lawyer an itemized list of the costs of proceedings, investi- gations and audits; RULE 5 – OFFICE OF DISCIPLINARY COUNSEL (14)(12) Seek reciprocal discipline when informed of any A. Appointment. The Court shall appoint a lawyer to serve as public discipline imposed in any other jurisdiction; Chief Disciplinary Counsel and may appoint such Deputy (15)(13) Forward a certified copy of the judgment of con- Disciplinary Counsels as they deem necessary. Disciplinary viction to the disciplinary office in each jurisdiction in Counsel shall not engage in private practice; shall be admitted which a lawyer is admitted when the lawyer is convicted of to practice in Montana at the time of appointment or within a a serious crime (as hereinafter defined) in this state; reasonable time thereafter as determined by the Court; and (16)(14) Maintain permanent records of discipline and dis- shall maintain offices in Helena, Montana, in facilities desig- ability matters and compile statistics to aid in the adminis- nated by the Court. tration of the system; (17)(15) Prepare an annual budget for the Office and sub- B. Powers and Duties. Disciplinary Counsel shall perform all mit it to the Board of Trustees of the State Bar of Montana prosecutorial functions and shall have the following powers for review; and duties: (18)(16) Make reasonable and necessary expenditures pur- (1) Supervise Office of Disciplinary Counsel (Office) staff suant to the reviewed budget to perform the duties of the in performing central intake functions; Office; (2) Evaluate all information coming to the attention of the (19)(17) Supervise and direct Office staff and operations; Office to determine whether it is within the disciplinary (20)(18) Prepare and submit to the Court recommendations jurisdiction of the Court; concerning the annual assessment of Bar members; and (3) Investigate all information coming to the attention of (21)(19) Make recommendations to the Court about the the Office which, if true, would be grounds for discipline lawyer regulation system. or transfer to disability/inactive status; (4) Investigate all facts pertaining to petitions for reinstate- C. Prohibited Activities. Disciplinary Counsel shall not have ment or readmission; authority to render advisory opinions, either orally or in writ- (5) Dismiss a complaint that Disciplinary Counsel deter- ing, or to impose any form of discipline on a lawyer. mines does not warrant disciplinary action; (6) In addition to dismissing the complaint, Disciplinary RULE 9 – DISCIPLINE AND SANCTIONS Counsel may issue a letter of caution or take other correc- A. Forms of Discipline. Discipline may take one or more of tive action when Disciplinary Counsel deems it appropri- the following forms: ate; (1) Disbarment. “Disbarment” means the unconditional (5) Dismiss the information which, if true, would not con- termination of any privilege to practice law in this State stitute misconduct or incapacity; or recommend discipline; and, when applied to any attorney not admitted to practice (7) Request leave to file a formal complaint when law in this State, means the unconditional exclusion from Disciplinary Counsel determines that disciplinary action is the admission to or the exercise of any privilege to practice warranted; law in this State. (8)(6) Prosecute before Review Panels, Adjudicatory (2) Suspension from the practice of law for a definite peri- Panels and the Court, discipline, interim suspension, rein- od of time or for an indefinite period of time with a fixed statement and readmission proceedings, and proceedings minimum term. “Suspension” means the temporary or for transfer to or from disability/inactive status; indefinite termination of the privilege to practice law in (9)(7) Employ and supervise Office staff needed for the this State and, when applied to any attorney not admitted to performance of prosecutorial functions and, when circum- practice law in this State, means the temporary or indefi- stances necessitate their use, appoint and supervise special nite exclusion from the admission to or the exercise of any investigators and volunteer special counsel; privilege to practice law in this State.

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 29 (3) Public censure. dation to the Supreme Court regarding suspension of the (4) Private admonition. Admonition administered by an lawyer’s license or other discipline. Adjudicatory Panel of the Commission. An attorney who has been purged of the contempt order (5) Probation. may be reinstated to practice law. Prior to reinstatement, the (6) Requirement of restitution to persons financially lawyer shall be required to pay the costs of any proceedings injured. before the Commission on Practice. (7) Reimbursement to the Lawyers’ Fund for Client Protection. II. PROCEDURE (8) Assessment of the cost of proceedings, investigations and audits. Whenever costs of proceedings are assessed by RULE 10 – OFFICE OF DISCIPLINARY COUNSEL PROCE- the Supreme Court as part of the discipline imposed upon a DURES lawyer, the Disciplinary Counsel shall assemble and serve A. Central Intake and Evaluation. The Office of upon the lawyer an itemized list of those costs. The lawyer Disciplinary Counsel shall perform central intake functions shall then have ten days thereafter in which to file written including, but not limited to the following: objections and, if so desired, request a hearing before an (1) Receive information and complaints regarding lawyers’ Adjudicatory Panel on whether the amount of such costs is alleged misconduct from members of the public; reasonable and necessary. An Adjudicatory Panel shall (2) Make appropriate referrals regarding information and thereafter recommend an amount of costs to be imposed, complaints while assuring that any member of the public and shall file its recommendation, along with any objec- who wishes to make a complaint against a lawyer is able to tions thereto, with the Supreme Court, which shall then do so; issue an appropriate order assessing costs. (3) Provide Send to the complainant access to a packet of (9) Interim suspension pending final determination of dis- written materials containing forms, instructions and infor- cipline. mation about Montana’s lawyer disciplinary process; and (4) Receive written complaints on the forms provided. B. Discipline Criteria. The following factors shall be consid- ered in determining discipline to be recommended or imposed: B. Preliminary Review and Processing of Informal (1) The gravity and nature of the duty violated, including Complaints. The Office of Disciplinary Counsel shall conduct whether the duty is owed to a client, to the public, to the a preliminary review of each written complaint received by the legal system, or to the profession ; Office and determine whether the complaint involves a matter (2) The lawyer’s mental state; that is within the disciplinary jurisdiction of the Court. (3) The actual or potential injury caused by the lawyer’s misconduct; and C. Investigation. (4) The existence of aggravating or mitigating factors. and; (1) All investigations shall be conducted by or under the (5) The existence of prior offenses. authority and direction of Disciplinary Counsel. Upon such investigation as Disciplinary Counsel deems appropri- C. Probation. A lawyer against whom disciplinary proceed- ate, he or she may: ings are pending may be placed on probation by the Supreme (a)(1) Send the complaint to the lawyer against whom Court or, with the lawyer’s concurrence, by an Adjudicatory the complaint is made; Panel. The probation shall be for such time and upon such (2) Send the lawyer’s response to the complainant and, terms and conditions as are determined appropriate in the case. if appropriate, request his or her reply to the lawyer’s Discipline may be imposed for violation of any of the terms response; and conditions of such probation, including satisfactory com- (3) Prepare an intake summary; and pletion of a diversion or treatment program. (4) Conduct an investigation and prepare an investiga- tive report; or D. Procedure for Discipline for Willful Contempt of Court (b) With or without some or all of the process set forth and Failure to Purge the Contempt. Upon receipt of a certi- in Rule 10C(1)(a), dismiss the complaint without preju- fied copy of an order of contempt that has become final, the dice, where the complaint does not appear to be within Supreme Court may, in its discretion, issue an order to show the disciplinary jurisdiction of the Court, or the facts do cause why the lawyer’s license to practice law should not be not appear to warrant disciplinary action. suspended or other discipline should not be imposed. The (c) Issue a letter of caution to a lawyer or take other lawyer against whom such an order has been entered in district corrective action when Disciplinary counsel deems it court shall not have the right or opportunity to re-litigate the appropriate. Any such action by Disciplinary Counsel merits of the contempt order, the right to hearing and due is not disciplinary action. process having been afforded him or her in the district court. (2) Notice of Disposition. In the event of a dismissal, In the alternative, the Supreme Court may direct an Disciplinary Counsel shall give written notice to the com- Adjudicatory Panel to issue the order to show cause or direct plainant and to the respondent of the dismissal, stating the the lawyer to appear before the Adjudicatory Panel. In that reasons for the action taken, and advising the complainant event, the Adjudicatory Panel shall make a written recommen- of the right to request review of the dismissal, or to file an

PAGE 30 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 amended complaint. RULE 13 - PRIVATE ADMONITIONS (3) Request for Review. The complainant may file a writ- At any time before initiation of formal disciplinary proceed- ten request for review of Disciplinary Counsel’s dismissal ings, an Adjudicatory Panel, in its discretion, may give a pri- within 30 days of the notice of disposition pursuant to Rule vate admonition to the lawyer in the name of the Supreme 10C(2). Disciplinary Counsel’s dismissal shall be Court, either orally or in writing, with or without imposition of reviewed by a Review Panel upon the record before it. costs of proceedings, and may require the lawyer to appear The Review Panel may approve, disapprove, or modify personally before an Adjudicatory Panel to receive the admo- Disciplinary Counsel’s disposition determination as to cor- nition. Thereupon, the matter shall be deemed terminated rective action. except that the Commission shall maintain a record of such admonition which record may be considered by Adjudicatory D. Review Panel Proceeding. Disciplinary Counsel shall: Panels and Review Panels in determining discipline to be rec- (1) Prepare recommendations to Request leave of a Review ommended or imposed in any subsequent disciplinary proceed- Panel to file a formal complaint; and ing involving the lawyer. Private admonitions are not appeal- (2) Present the intake summary, investigative report and able. recommendations to a Review Panel, orally supplementing them at the request of a Review Panel; and RULE 20 – ACCESS TO DISCIPLINARY INFORMATION (3) Conduct further investigation at the request of a A. Confidentiality. All disciplinary information provided to Review Panel. the Office of Disciplinary Counsel and proceedings before the Commission on Practice prior to the proceedings which are E. Adjudicatory Panel Proceeding. Disciplinary Counsel prior in time to the filing of a formal complaint with the Clerk shall: of the Supreme Court shall be confidential, except that the (1) Draft and prosecute formal complaints and complaints pendency, subject matter, and status of an investigation may be proposing interim suspension before an Adjudicatory disclosed by Disciplinary Counsel may disclose information if: Panel; (1) The respondent has waived confidentiality; (2) Recommend discipline or other disposition of a case to (2) The proceeding is based upon allegations that include an Adjudicatory Panel; either the conviction of a crime or reciprocal discipline; (3) Conduct any discovery pursuant to Rule 19; (3) The proceeding is based upon allegations that have (4) At the request of an Adjudicatory Panel, i Investigate become generally known to the public; or all allegations in a petition for reinstatement and present (4) There is a need to notify another person or organiza- relevant evidence at an Adjudicatory Panel hearing on the tion, including the Lawyers Fund for Client Protection petition.; and Board, or the Commission on Character and Fitness, other (5) Advocate findings of fact and conclusions of law result- lawyer disciplinary agencies, law enforcement agencies, ing from Adjudicatory Panel proceedings. and the Lawyer’s Assistance Program, in order to protect the public, the administration of justice, or the legal profes- RULE 11 – ABROGATED REVIEW PANEL PROCEDURES sion, unless Disciplinary Counsel reasonably determines A review panel shall: that disclosure would hinder an ongoing investigation or (1) Review the complaint, the response from the lawyer prosecution, infringe unpon the privacy interests of a against whom the complaint was made, and any reply from reporting or other third party, or constitute an unduly broad the complainant, together with other relevant documents or burdensome request; or,. and Disciplinary Counsel’s intake summary, investigative (5) There is a need to disclose information to third parties report and recommendations; while investigating a complaint. (2) Determine any preliminary and procedural matters; Upon the filing of a formal complaint, the Commission’s (3) Refer complaint to Disciplinary Counsel for any further entire file on the matter shall be subject to discovery. investigation; (4) Dismiss the complaint when the facts do not appear to B. Public Information Proceedings. Upon the filing of a for- warrant disciplinary action and notify the complainant and mal complaint with the Clerk of the Supreme Court in a disci- lawyer of the Review Panel’s action; plinary matter, or upon the filing with the Clerk of the (5) Request Disciplinary Counsel to prepare and file a for- Supreme Court of a petition for reinstatement, the proceedings mal complaint when the afacts appear to warrant discipli- before the Commission and pleadings and other documents nary action; filed with the Clerk or Commission thereafter shall be public (6) Request Disciplinary Counsel to prepare and file a except for: complaint proposing interim suspension in an appropriate (1) Deliberations and minutes of the Commission; and case; and (2) Information or proceedings with respect to which an (7) When undisputed facts prove an ethical violation by Adjudicatory Panel or Supreme Court has issued a protec- clear and convincing evidence, recommend to an tive order;. Adjudicatory Panel imposition of a private admonition in (3) Conditional admissions and affidavits of consent sub- appropriate cases. mitted pursuant to Rule 26 of these Rules until, and if, approved by teh Court and public discipline is imposed;

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 31 and pline, the nature of which the lawyer shall specifically set (4) Hearings conducted pursuant to Rule 26 of these Rules. forth; (3) The lawyer acknowledges that the material facts so C. Violation. Violation by any person of any confidential alleged are true or the lawyer submits his or her consent information under these rules shall be punishable as a con- because he or she knows that if charges predicated upon tempt of the Supreme Court. the matters under investigation were filed, or if the pending proceeding were prosecuted, he or she could not success- D. Duty of Participants. All participants in a proceeding fully defend himself or herself. under these rules shall conduct themselves so as to maintain The final order of discipline shall be predicated upon the the confidentiality mandated by this rule. complaint, if any, the conditional admission, the affidavit, and such other information and evidence to which the Disciplinary C. E. Admissibility in Other Proceedings. The conclusions, Counsel and the lawyer may have stipulated, or which may opinions and recommendations of Disciplinary Counsel or any have been elicited at a private hearing referred to in Rule 26A. investigator or special counsel acting on behalf of the Office Disciplinary Counsel while acting in those capacities are not C. Order of Discipline. If the discipline by consent is a pri- relevant or admissible for any purpose in any quasi judicial or vate admonition by the Adjudicatory Panel, the Adjudicatory judicial forum, exclusive of the Commission on Practice and Panel shall enter the order. In all other instances in which the the Montana Supreme Court in a disciplinary action. proposed discipline has been approved, the Supreme Court shall enter the order. The order of discipline by consent shall RULE 26 - DISCIPLINE BY CONSENT be filed with the Clerk of the Supreme Court, and a copy A. Adjudicatory Panel Approval of Tendered Admission. A thereof shall be served upon the lawyer, the lawyer’s counsel, lawyer concerning whom an investigation is being conducted the Commission, Disciplinary Counsel and the complainant. because of allegations of misconduct, or against whom formal disciplinary proceedings have been filed may tender a condi- D. Confidentiality. All tendered admission proceedings prior tional admission to the complaint or to particular allegations to entry of a consent discipline order shall be confidential and therein a particular count thereof in exchange for a stated subject to the provisions of Rule 20 of these Rules. Upon entry form of discipline. The tendered admission shall be submitted of an order imposing public discipline, the conditional admis- to an Adjudicatory Panel. An Adjudicatory Panel may refer the sion and affidavit of consent shall be filed with the Clerk of tendered admission to the Disciplinary Counsel for recommen- the Supreme Court and made public.  dations. The Adjudicatory Panel may either approve or reject the tendered admission. The Adjudicatory Panel, with the lawyer’s consent, may hold a private hearing for the purpose of obtaining information to aid the Adjudicatory Panel in determining whether to approve or reject the tendered admis- NELSON’S DISSENT, from Page 7 sion. If the tendered admission is approved by the Adjudicatory Panel, such approval shall be final if the stated form of discipline is an private admonition, with or without chooses to waive his or her right of individual privacy so as to imposition of costs of the proceeding; but, in all other be admonished in public. instances the tendered admission shall be subject to approval or rejection by the Supreme Court. If the tendered admission  . . . we have adopted a nondisciplinary category of attorney stated form of discipline is rejected by either the Adjudicatory ethical lapses and a disciplinary category of attorney ethical Panel or the Supreme Court, the admission shall be deemed lapses which both cover “minor misconduct” with no standards withdrawn and cannot be used against the lawyer in any subse- to distinguish the two – a situation that will guarantee ad hoc quent proceedings. decision-making. Aside from the fact that respondent attorneys will be justifiably confused as to why one, and not the other, B. Affidavit of Consent. A tendered admission shall include applies, the public will have no opportunity to observe how the an affidavit stating the lawyer’s consent to the discipline and determination is made . . . If nothing else, then, MRLDE 13 will that: If the stated form of discipline is approved, the lawyer guarantee endless petitions for review by this Court of the shall present to the Adjudicatory Panel an affidavit stating his Adjudicatory Panel’s decisions . . .” or her consent to the discipline and that: (1) The lawyer’s consent is freely and voluntarily tendered,  . . . at the various public meetings on this matter, current and that the lawyer is not being subjected to coercion or and former members of COP and members of this Court duress, and that the lawyer is fully aware of the implica- offered passionate comments extolling the benefits to respon- tions of submitting the consent; dent attorneys of counseling delivered by way of admonitions. (2) The lawyer is aware that there has been a formal charge These comments recounted the embarrassment, remorse, and filed against the lawyer, the nature of which the lawyer is contrition often exhibited by the attorney being disciplined . . . presently pending an investigation into, or proceeding Given COP’s apparent institutional philosophy in favor of saving involving, allegations that there exists grounds for disci- the attorney – and his or her reputation – from the humiliation and damage theoretically inherent in being publicly taken to the

PAGE 32 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 woodshed, I expect that more admonitions will be BENEFITS TRUST, from Page 11 closed to the public . . .”

 We should have stuck to what we originally commit- annual claims liability.. ted to do: abrogate admonitions, private or public, alto- Specific stop loss is relatively expensive; the reinsurance carrier gether. For the sorts of “minor misconduct” described in fully expects to have losses payable on the SSL coverage. Over the the rule, Disciplinary Counsel can issue a nondiscipli- years 2008-2010, the reinsurer reimbursed $1,837,000, the claims nary letter of caution along with suggestions as to how which exceeded $240,000. Besides the groups claims, SSL is the the attorney can improve his or her practice. But if the most expensive component in the self-funded arrangement. attorney’s unethical conduct is serious enough to merit The aggregate stop loss premium is very inexpensive; the rein- the filing of a formal complaint and the imposition of surer does not expect the GBT claims to exceed what their under- discipline, then the whole of the disciplinary proceed- writer has established as the group’s expected claims, let alone for ings should be open to public scrutiny. them to exceed the maximum claims liability. The reinsurer sets the maximum claims liability at 120 percent of expected claims. The  . . . under MRLDE 20B(3) and 26, conditional admis- trustees have set the 2011 premiums so as to fund slightly in excess sions and affidavits of consent which result in a private of the 120 percent maximum liability. The 2011 GBT renewal is a discipline are never made public. Hence, notwithstand- 12.8 percent increase. ing the constitutional right to know, an attorney need simply file a conditional admission and consent to a pri- SO THERE YOU have it – the evolution of the State Bar vate admonition in order to keep his or her misconduct Montana Group Benefits Trust. Your GBT trustees are: Chris under wraps. Manos, Chris Gittings, Glenn Tremper, Gary Bjelland, Kristi Blazer, Mark Parker, Perry Schneider, and Peggy Probasco.  Having reneged on what I naively had understood The trustees, State Bar Executive Director Chris Manos, and was this Court’s firm commitment to make the discipli- GBT Executive Assistant Mary Ann Murray – along with Amy nary process transparent – by doing away altogether Jenks, the chief operating officer of HealthServe, which is the with admonitions, private or otherwise – we have now billing administrator for the GBT, and the consulting firm, rendered that part of the existing disciplinary process Mountain West Benefits – have invested an enormous amount of translucent at best . . . it is not constitutionally permissi- time and energy to help get the GBT to this point. ble Beginning in 2011, the premiums you pay for the GBT health insurance will be maximized, with the largest amount possible  . . . I fully support the amendments that permit ODC going to pay for benefits – the medical claims the membership to issue letters of caution. Indeed, the original proposal incurs. Lower claims = lower premiums: lower fixed cost = more for authorizing such letters contemplated that they of your premiums available to pay claims. To learn more about the benefits plan, see the Member would supplant admonitions entirely. Letters of caution  are not considered discipline. Rather, in my under- Benefits link atop the home page at www.montanabar.org. standing, the letters are issued by ODC to lawyers whose minor misconduct or technical violations of the Montana Rules of Professional Conduct are de min- imus, with the expectation that the lawyer’s minor laps- es in good practice or judgment will be promptly . . . resolved. This approach is consistent with the notion that, in these sorts of cases, the lawyer’s right of indi- vidual privacy clearly outweighs the merits of the public disclosure for an insubstantial ethical lapse. Admonitions, on the other hand, are discipline.

 The rules and amendments which we adopt today, however, tip the constitutional balance of transparency in the opposite direction from that required by the plain and unambiguous language of Article II, Section 9, its underpinnings as expressed during the 1972 Constitutional Convention, and our well-established caselaw. The amendments place the lawyer’s reputa- tion, his or her desire to avoid embarrassment, and the perceived needs of the lawyer disciplinary system and COP itself . . . ahead of the fundamental right of the public’s right to examine documents and to observe the proceedings of that body. 

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 33 JOUSTING JUSTICES, from Page 24 the great privacy deci- sions of the 1960s and ’70s with his 1965 ruling I have ever met.” that the right to privacy If this were all there was, it would be little more than a prevented Connecticut legal soap opera. But the justices’ larger disputes were over from banning the use of what sort of a nation America would be. contraceptives. It was a Black was an originalist, insisting the Constitution be given straight line from there to its original meaning, based on a close reading of the text. Roe v. Wade. Today, originalism is generally considered a conservative doc- Frankfurter staked out trine, freezing the Constitution in an earlier time. Black, how- a philosophy of judicial ever, was attempting to free it from decades of conservative restraint. Having come of precedents by going back to first principles. age when conservative Jackson was a constitutional pragmatist. His opinion in a judges regularly struck case involving President Truman’s seizure of steel mills pro- down progressive laws, vided one of the greatest analyses ever of the appropriate judicial deference seemed dynamics among the branches of government. Jackson’s prag- to him to be a liberal matism usually took him in a liberal direction, but his service position. But times as chief prosecutor at the Nuremberg war crimes trials – which changed, and his belief in he did while on the court – occasionally pulled him back. In a judges holding back put case overturning the conviction of an anti-Semitic rabble- Call it ‘scorpion him at odds with the rouser, Jackson dissented from the free-speech majority, warn- Warren court of the nostalgia’: That ing of the threat to America from “totalitarian groups who 1960s. In 1962, when it want nothing so much as to paralyze and discredit the only initiated modern voting today’s Supreme Court democratic authority that can curb them in their battle for the rights with a seminal “one streets.” is diminished for not man, one vote” ruling, Douglas, a Western-state individualist, carved out a consti- Frankfurter dissented, tutional philosophy based on personal liberty. He ushered in having justices like arguing for staying out of the “political thicket.” He them on it. comes off as a tragic fig- ure, who abandoned his liberal worldview out of fidelity to his constitutional philosophy.

FELDMAN’S ACCOUNT is least sure-footed when he tries to root the justices’ interpretive theories in their biogra- phies. It may be that Black developed his emphasis on text in his days as a Sunday school teacher, or that Douglas, who left his wife for a series of younger women, found his constitution- al philosophy in his tumultuous personal life. But it could also be that people who are born literalists become Baptist Sunday school teachers and constitutional originalists, and that inher- ently freewheeling sorts exhibit their nature in both their life and their work. Some readers may object that “Scorpions” does not have a Big Idea behind it. That is a fair criticism, but if the book lacks a grand theory, it has an unmistakable lament. Call it “scorpion nostalgia”: the conviction that despite the flaws of Frankfurter, Jackson, Black, and Douglas, today’s Court is diminished for not having justices like them on it.

ADAM COHEN, the author of “Nothing to Fear: FDR’s Inner Circle and the Hundred Days That Created Modern America,” teaches at Yale Law School.

PAGE 34 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 NEWS ABOUT MEMBERS

Montana Supreme Court, the U.S. Dan Boucher appointed to be district judge District Court for Montana, Rocky Boy Tribal Court, and Fort Belknap Tribal Gov. Brian Schweitzer has announced High School in Missoula. He received a Court. In addition to his public defender the selection of Dan Boucher to serve as bachelor’s degree in economics from the and private practice work, Boucher also the district judge for the 12th Judicial University of Montana in 1980 and his served as a part-time deputy county District, covering Hill, Chouteau, and law degree from the UM School of Law attorney for Hill County. Liberty counties, the Associated Press in 1984. Boucher is a member of the Montana reported. Boucher is regional deputy public Officials Association and is president of Boucher will replace Judge David defender in Havre and also practices law the Havre Wrestling Officials Rice who is retiring on Nov. 30. as a sole practitioner (Altman & Association. He is certified as an NCAA Boucher will begin his new appoint- Boucher). He joined the Frank Altman wrestling official. During his college ment effective Dec. 1. The seat is up for law firm in 1984 and became a partner years, he worked as a forester, a bee- election in 2012. in 1987. keeper, a teamster, and a bookkeeper. Boucher is a graduate of Hellgate He is admitted to practice law in the

The Legislative Services Division for the State of Montana is Political Science and French in 2007. Ms. Braun will practice has announced the hiring in November of two attorneys: litigation in Walton & Luwe’s Bozeman office.  Julianne Burkhardt graduated magna cum laude from Sweet Briar College in 1987, Two new law-school graduates have joined the Helena law was inducted into Phi Beta Kappa, and firm of Doney Crowley Bloomquist Payne & Uda. They are: received her law degree in 1994 from the  Rachel A. Kinkie became associated University of Montana. She will be the staff with the firm’s Helena office in September. attorney for the Public Health, Welfare & She received her JD from the University of Safety Committee in the Montana School of Law in 2010. She is a Montana Senate. native of Montana, raised on a cattle ranch in  Dan Whyte graduated magna cum laude the Paradise Valley. Ms. Kinkie previously from Carroll College in 1985 and received his worked for the Montana Stockgrowers law degree in 1988 from the University of Association as a natural resources legal intern Idaho. He will be the staff attorney for the and completed her clinical requirement with the U.S. Education Committee in the Montana House of Department of Agriculture Office of General Counsel. Ms. Representatives. Kinkie’s practice will focus on natural resources, agriculture, property rights, and water rights adjudication and permitting. The National Elder Law Foundation – the only organization  Jacqueline R. Papez received her law approved by the ABA to offer certification in the area of elder degree from the University of Idaho College of law – has announced that Sol Lovas of Billings has successful- Law in 2010, graduating magna cum laude. ly completed its examination leading to such certification. Ms. While in law school, she published an academ- Lovas is now a certified elder law attorney (CELA). She is the ic paper addressing Native American legal first and only attorney in Montana to have achieved CELA issues that received awards in Native American certification. Ms. Lovas has been practicing law in the law and natural resources/environmental law. Billings area since 1980, and her practice is limited to estate Ms. Papez was raised on a ranch near Belfry, planning and administration, disability and special needs Mont. She joined the firm’s Helena office in September, and issues, long-term care (Medicaid) planning, and other elder her practice will emphasize environmental, natural resource, law issues. business, Native American, and insurance coverage issues.

Maggie Sullivan Braun recently became an associate attorney University of Montana Law Professor Jeff Renz participated in with the law firm of Walton & Luwe. She graduated from the the Salzburg Global Seminar on “Islamic & International Law: University of Montana School of Law in 2010. Ms. Braun Searching for Common Ground” in November in Salzburg, was a member of the National Moot Court team, and a mem- Austria. Prof. Renz is a clinical professor of Law at UM, and ber of the National Environmental Moot Court team. She is a member of the faculty of the Central & Southwest Asia served as co-president of the Montana Public Interest Law Studies Center. Coalition in 2008-2009. She was clinic student at the Federal Defenders of Montana in 2009-2010. Ms. Braun graduated Rodney T. Hartman has joined the Tolliver Law Firm of cum laude from Gonzaga University with BA degrees in

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 35 Billings. Mr. Hartman was born and raised in Billings and The Great Falls law firm of Ugrin, Alexander, graduated from Billings West High School in 1968. He Zadick & Higgins announced that David J. received his undergraduate degree from Tulane University of Grubich has joined the firm as an associate New Orleans in 1972 and then his law degree from the attorney. Mr. Grubich received his bachelor University of Chicago Law School in 1976. He maintained a of arts degree, with high honors, from the civil litigation practice in Billings from 1976 through 1995 University of Montana in 2007. He received when he began a position in private industry. Mr. Hartman has his juris doctor degree, with honors, from the now decided to resume his full-time practice of law and will UM School of Law in 2010. Mr. Grubich will again concentrate in the field of civil litigation. specialize in civil litigation. He was stationed at Malmstrom Air Force Base between 1988 and 1992 and served as a police Jessica Weltman, an attorney with the Federal Defenders of officer and investigator in Illinois for nine years. Montana, was recently elected as the president of the board of directors for Women’s Opportunity & Resource Development Inc. (WORD). Now in its 25th year, WORD works to break DEATHS the cycle of generational poverty by investing in women as leaders within their families and communities. WORD pro- grams promote women’s access to stable housing, employment Aleta Husted, ex-Miles City attorney and life-skills training, parenting education, early learning and Aleta Husted, 82, a graduate of UM School of Law who tutoring, and the creation of policies for social change. Ms. practiced law for many years in Miles City died on Nov. 19 in Weltman received her law degree from Washington University Stockton, Calif. in St. Louis and her undergraduate degree in History from Ms. Husted grew up in Baker, Mont. She left her law Carleton College in Northfield, Minn. She worked and volun- practice after she married Paul Husted. She and Mr. Husted teered for a number of years as a lobbyist and advocate for started Blue Caboose Tours & Cruises, a group-travel pioneer. organizations focusing on ending violence. She has also been Together they escorted groups all over the world. involved with literacy projects, civil rights issues, and human rights work in Nepal. James Fewer, Glasgow attorney Glasgow attorney James K. Fewer, 51, who was active in Kelly Addy, deputy city attorney for Billings, has been appoint- his community, died of heart failure at his home on Nov. 9. ed by the Montana Supreme Court to the Commission on He is survived by his wife, Jennifer, a son, and two daughters. Courts of Limited Jurisdiction for a term that will expire on No other obituary information was available. June 30, 2014. Mr. Addy replaces Helena City Attorney David K. Nielson who resigned his seat on the Commission.

PAGE 36 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 CLASSIFIEDS

CLASSIFIEDS POLICY: Beginning law. Our 7-member firm enjoys over Competitive salary and benefits offered. with the 2011 edition, minimum charge 110 years of combined experience, and Applicants must be admitted to practice of $60 for all ads. Ads over 50 words provides associates with excellent in Montana. Send letter of application, charged at $1.20 per word. Send clas- opportunities to expand their legal prac- resume, and writing sample to sified ads to The Montana Lawyer tice. In our continual pursuit to exceed Managing Partner, Luxan & Murfitt magazine, PO Box 577, Helena MT our clients’ expectations, we strive to PLLP, PO Box 1144, Helena MT 59624 or e-mail to cwood@montan- hire exceptional attorneys and staff. The 59624. www.luxanmurfitt.com abar.org. Include billing address. firm offers a spacious, technologically Deadline for the February issue is Jan. advanced office and very pleasant work ATTORNEY: Three-person firm in 12. Call (406) 447-2200 for informa- environment. All applicants must be Billings engaged in high-end commer- tion. licensed to practice law in Alaska, be cial law and estate planning practice is eligible for admission by reciprocity, or seeking a qualified individual with real take and pass the Alaska Bar estate, commercial, estate planning ATTORNEY POSITIONS Examination six months of the date of and/or commercial litigation experience hire. Previous legal experience is pre- to join the firm. Information regarding COUNTY ATTORNEY: Garfield ferred, although not mandatory. the firm is available at www.kdhlaw- County, Jordan, Mont., is accepting Applicants should demonstrate an abili- firm.com and responses should be applications for the position of county ty to be task-focused, work independ- directed to Karell Dyre Haney PLLP, attorney. Applicant must be licensed to ently, achieve high standards, make cal- 175 North 27th Street, Suite 1303, practice law in Montana. This is a 20- culated decisions, and be direct, firm, Billings MT 59101. hour per week position, salary: $46,571. and self assured. Applicants must also Full benefit package included. possess an exceptional academic back- DEPUTY COUNTY ATTORNEY: The Experience with criminal prosecution ground as well as superior research, Lincoln County Attorney’s Office is and work with county government is analytical, verbal, and writing capabili- seeking a deputy county attorney to fill preferred but not required. Starting date ties. All applications will be held in a full-time position. This position is would be approximately Feb. 1, 2011. strict confidence. Open until filled. available on Jan. 3, 2011, and will be Please submit resume and cover letter to Please submit your resume, law school open until filled. Applicants must be Garfield County Commissioners, PO transcript, references and writing sam- licensed to practice law in Montana, Box 7, Jordan MT 59337-0007 or call ple to: Z. Kent Sullivan at experience in criminal law, and trial (406) 557-2760. Experience in prosecu- [email protected]. experience is preferred, including expe- tion is preferred but not required. rience as a legal intern. The position Deadline for applications is Jan. 14, ATTORNEY: Seeking attorney for well- requires knowledge of criminal law and 2011 at 5 p.m. Any questions or con- established currently solo estate plan- procedure, rules of evidence, and civil cerns please call Gary Ryder at (406) ning/elder law specialty practice. procedure, and familiarity with comput- 342-5546. Garfield County reserves the Requirements: 5-plus years estate plan- erized legal research and word process- right to refuse any and all applicants. ning experience, excellent writing skills, ing. Salary is $40,000 to $45,000 per interest in elder law. Experience in elder year, depending on experience, plus ATTORNEY: Southwestern Montana law preferred. Send letter of applica- excellent bnefits. Submit a letter of practitioner seeking attorney for general tion, resume, references, transcript, interest, Public Sector Job Application, practice assignments. 2-5 years experi- sample estate plan, sample brief, and writing sample, and two letters of rec- ence preferred. New graduates may statement of elder law interest and/or ommendations to: Kootenai Job apply. Please send letter of application, experience to Ms. Sol Lovas, CELA, Service, 417 Mineral Avenue, Libby references, resume, transcript, and writ- Attorney at Law, PO Box 399, Billings MT 59923, no later than Dec. 10, 2010. ing sample to W.G. Gilbert III, PO Box MT 59103. www.lovaslaw.com. Telephone: (406) 293-6282. 345, Dillon MT 59725. All applications confidential. Open until filled. ASSOCIATE ATTORNEY: Luxan & ASSOCIATE: Helena law firm is accept- Murfitt PLLP in Helena, is seeking as ing applications for an associate attor- ALASKA AWAITS YOU! Baxter Bruce associate attorney to assist primarily in ney. Experience preferred, but will work & Sullivan PC (www.baxterbrucelaw the firm’s health care practice. with and train a qualified applicant with .com), located in Juneau, Alaska's capi- Applicants should have experience in a good work ethic as well as strong tal, seeks to hire an associate attorney health care, or a background or interest writing and analytical skills. Our gener- that will complement its growing prac- in this area of law. The firm offers a al practice emphasizes defense litiga- tice with an emphasis on real estate, good, progressive working environment, tion, personal injury, workers’ compen- construction, property, commercial, pro- a stable and competent staff, good tech- sation, and insurance regulation. Submit bate, estate planning, and bankruptcy nology, and varied and interesting work. resume and writing sample to: Keller,

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 37 Reynolds, Drake, Johnson & Gillespie court documents/procedure, filing, @gmail.com with any inquiries. Brokers PC, 50 South Last Chance Guch, client screening, scheduling, general protected. Helena MT 59601. office responsibilities, excellent on tele- phone and computer. Resume and national award-winning journalism CONSULTANTS & EXPERTS PROFESSIONAL POSITIONS work upon request, including project resulting in federal court freeing an MEDICAL/LEGAL CONSULTANT: UM LAW SCHOOL: The University of innocent man serving life in prison. Internal medicine / gastroenterology: Montana School of Law is accepting Contact: Martin Connolly, (406) 598- Theodore W. Bohlman, MD. Licensed, applications for the director of 4256. martinconnolly400 Board Certified IM/GI. Record Review Admissions & Career Services. For the @msn.com and medical expert testimony. Contact: complete job description and applica- (208) 841-0035, tbohlman@mind tion instructions, please visit our web- FORMER GENERAL COUNSEL of spring.com. site at: www.umt.edu/law. Semitool Inc., a $250 million, Nasdaq- listed company, with 30 years corporate VOCATIONAL EXPERT: Consultant experience is available to provide con- with 20 year experience in vocational ATTORNEY POSITIONS SOUGHT tracted support in the following areas: issues regarding: earning potential and securities transactions, SEC compliance, labor market research, vocational and mergers and acquisitions, international academic testing, job aanalyses, trans- APPELLATE COUNSEL can bring fresh trade and export compliance, insurance ferable skills, and retraining plans. perspectives to your case. Unburdened portfolios, corporate governance, licens- Comprehensive report completions and by any personal investment in the trial ing and structured finance. Contact extensive expert testimony experience. strategy, appellate counsel can objec- Richard Hegger at (406) 225-5100 or Contact Karen S. Black, CRC, CDMS, tively evaluate the arguments made [email protected]. CCM; Vocational Consulting Services below, and adjust or amplify them for Member of the bars of Montana, New Inc., PO Box 1296, Bozeman MT persuasive presentation to the appellate York, and Missouri. 59771; (406) 587-4143; or e-mail court. We are admitted and have advo- [email protected]. cated before the U.S. Supreme Court, TOO BUSY TO BREATHE? UM law and appellate courts throughout the west graduate and former PLRLR editor BANKING EXPERT: 34 years banking for both appellants and appellees, on available for all types of contract work, experience. Expert banking services briefs, in oral argument, and as appel- including research, brief writing, tran- including documentation review, work- late mediators. We provide a complete scription, document review, and litiga- out negotiation assistance, settlement array of timely assistance, from initial tion support. Six years experience assistance, credit restructure, expert wit- evaluation to full appellate representa- research and writing, especially enviro- ness, preparation and/or evaluation of tion. Sullivan, Tabaracci & Rhoades PC, mental., land use, tort, product liability, borrowers' and lenders' positions. (406) 721-9700, www.montana property, workers comp, and insurance Expert testimony provided for deposi- lawyer.com. law; prior paralegal experience; MT tions and trials. Attorney references license. Contact Merianne Stansbury at provided upon request. Michael F. BUSY PRACTICE? I can help. Former (406) 697-0060 or Richards, Bozeman MT (406) 581- MSC law clerk and UM Law honors [email protected]. 8797; [email protected]. graduate available for all types of con- tract work, including legal/factual CERTIFIED COMPUTER EXAMIN- research, brief writing, court/depo OFFICE SPACE / SHARE ER: Forensic analysis of computers, appearances, pre/post trial jury investi- hard drives, CD/DVD media, floppy gations, and document review. For more BOZEMAN: Turnkey office space for disks, cell phones, PDAs, and any other information, visit www.meguirelaw.com; lease, 1,800 square feet total. Four large digital storage devices. Civil, criminal, e-mail [email protected]; or call offices – each may be leased individually – interoffice, or personal cases welcome. (406) 442-8317. and a conference room. Reception area, Certified by the International Society of and galley kitchen. Reception area Forensic Computer Examiners. Contact includes a front desk and counter, confer- James Andrew Holmes, CCE, AtaDatA LEGAL RESEARCH ence room contains a solid alderwood LLC at (406) 498-5193, jaholmes@ata- & OTHER SERVICES table and 6 chairs. Includes phone system, data.info, or www.atadata.biz. multi-function copier and fax machine. LEGAL ASSISTANT AVAILABLE: Rent negotiable. Convenient to MSU and COMPUTER FORENSICS, DATA Former Pulitzer Prize semi-finalist, 17 the Law and Justice Center. Call Guza, RECOVERY, E-DISCOVERY: years experience as investigative Williams & Nesbitt PLLC at (406) 586- Retrieval and examination of computer reporter, Bilingual/Spanish, available as 2228 for more details. and electronically stored evidence by an legal assitant – full-time, part-time or internationally recognized computer contract. Law school experience, famil- NEAR BOZEMAN: Office space at Four forensics practitioner. Certified by the iar with duties of paralegals. Investi- Corners available for a prices no one could International Association of Computer gation, research, legal writing/editing, turn down. E-mail markdavidparker Investigative Specialists (IACIS) as a

PAGE 38 THE MONTANA LAWYER DECEMBER 2010 / JANUARY 2011 Certified Forensic Computer Examiner. Green, Eugene, Ore.; (888) 485-0832. More than 15 years of experience. Web site at www.documentexa- MISCELLANEOUS Qualified as an expert in Montana and miner.info. United States District Courts. Practice OIL & GAS ROYALTY income wanted. limited to civil and administrative mat- BAD FAITH EXPERT WITNESS: Immediate cash for estates and heirs ters. Preliminary review, general advice, David B. Huss, JD, CPCU & ARM. 30 that own producing oil & gas interests. and technical questions are complimen- years insurance claims and law experi- No interests too small. Simplify pro- tary. Jimmy Weg, CFCE, Weg ence. Former insurance adjuster and bate by selling mineral rights prior to Computer Forensics LLC, 512 S. defense counsel. (425) 776-7386. death. Esquire Investments LLC, N.L. Roberts, Helena MT 59601; (406) 449- Andersohn, attorney, Broomfield, Colo.; 0565 (evenings); jimmyweg@yahoo (303) 650-6414; [email protected]. .com; www.wegcomputerforensics.com MEDIATION

FORENSIC ENGINEERING: MICHAEL G. BARER: Attorney with 32 WEB Registered professional engineer with years experience available for arbitra- over 20 years experience specializing in tion and mediation in all areas of law. flatheadlaw.com construction dispute resolution, structur- No hourly fee charged for travel time. “The single resource for legal information al and road distress determination, PO Box 3153, Great Falls MT 59403. in Northwest Montana.” ground settlement/groundwater, con- (406) 771-8800 or (800) 468-5997. You can find every federal agency struction materials, and slope stability http://www.flatheadlaw.com/federal-depts- issues. Exceptional writing and oral agencies.html skills. Contact Michael A. Dworsky, INVESTIGATORS PE, MBA; Missoula, Mont.; (406) 543- BEST WEB PORTAL 3100 x3 or (406) 544-3435. References INVESTIGATIONS & IMMIGRATION FOR MONTANA LAWYERS available. Web site: www.orioneng.net CONSULTING: 37 years investigative www.montanabar.org experience with U.S. Immigration All the legal resources & news you need CERTIFIED LEGAL NURSE CON- Service, INTERPOL, and as private from the State Bar of Montana SULTANT: Professional, affordable investigator. President of the MT PI assistance with medical lawsuits. Association. Criminal, fraud, back- Certified legal nurse consultant, ground, loss prevention, domestic, Registered nurse, 20-plus years’ experi- workers’ compensation, discrimination ence. Screen cases for merit, assess and sexual harassment, asset location, causation/damages, interpret medical real estate, surveillance, record search- records, facilitate communication. es, immigration consulting. Donald M. Accept cases involving health, illness, Whitney, Orion International Corp., injury, worker’s compensation, general PO Box 9658, Helena MT 59604. (406) negligence, defendant or plaintiff. 458-8796 / 7. Marni Allen, RN, CLNC. (406) 690- 4314; www.medicallegalprofess ional.com. EVICTIONS

FORENSIC DOCUMENT EXAMIN- EVICTIONS LAWYER: We do hundreds ER: Trained by the U.S. Secret Service of evictions statewide. Send your land- and U.S. Postal Inspection Crime Lab. lord clients to us. We’ll respect your Retired from the Eugene, Ore., P.D. “ownership” of their other business. Qualified in state and federal courts. Call for price list. Hess-Homeier Law Certified by the American Board of Firm, (406) 549-9611, thesshomeier@ forensic Document Examiners. Full- msn.com. See website at www.mon- service laboratory for handwriting, ink tanaevictions.com. and paper comparisons. Contact Jim

Montana’s Lawyers Assistance Program Hotline 1-888-385-9119 Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction

DECEMBER 2010 / JANUARY 2011 THE MONTANA LAWYER PAGE 39 THE MONTANA

PRESORTED STANDARD US POSTAGE PAID PERMIT 1 awyer BILLINGS MT StateL Bar of Montana P.O. Box 577 Helena MT 59624