Montana State Bar of Montana

LawyerAug. 2012 | Vol. 37, No. 9

INSIDE: > President-Elect identifi es top 8 challenges facing the State Bar

> Introducing the Appellate Pro Bono Program

> U.S. and Montana Supreme Court summaries of recent cases

> Missouri v. Frye and Lafl er v. Cooper: To Plea or Not to Plea?

> State Bar looking for volunteers to serve on committees

> Justice Foundation approves grants, identifi es donors

> Montana and Member news

BIG Are you ready SKY rendezvous to rendezvous? Annual Meeting | Billings,Montana | September 20-21 {}Preview: Sandra Day O’Connor | Supreme Court Oral Arguments | Hot Topics CLE | and more ... 6WDWH%DU RI 0RQWDQD Firm ManagerTM Montana Lawyer

The offi cial magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. (406) 442-7660; Fax INDEX (406) 442-7763. E-mail: [email protected] State Bar Offi cers August 2012 President | Shane Vannatta, Missoula President-Elect | Pamela Bailey, Billings Secretary-Treasurer | Mark Parker, Billings Immediate Past President | Joe Sullivan, Feature Stories Great Falls Annual Meeting preview ...... 16 Chair of the Board | Randall Snyder, Bigfork Missouri v. Frye and Lafl er v. Cooper analysis ...... 24 Board of Trustees Appellate Pro Bono Program ...... 14 Luke Berger, Helena Darcy Crum, Great Falls Ellen Donohue, Anaconda Vicki W. Dunaway, Billings Leslie Halligan, Missoula Commentary Jason Holden, Great Falls President-Elect’s Message ...... 4 Thomas Keegan, Helena Ross McLinden, Billings Jane Mersen, Bozeman Regular Features Kent Sipe, Roundup Montana and Member News ...... 5-6 Randall Snyder, Bigfork Monique Staff ord, Billings Court orders ...... 10-13 Matthew Thiel, Missoula Deaths ...... 28-29 Monica Tranel, Helena Lynda White, Bozeman Job postings ...... 30-31 Tammy Wyatt-Shaw, Missoula

ABA Delegate Damon L. Gannett, Billings Robert Carlson, Butte

Montana Lawyer Staff Publisher | Christopher L. Manos, Executive Director
         Editor | Peter Nowakowski (406) 447-2200; fax: 442-7763               e-mail: [email protected]                Subscriptions are a benefi t of State Bar             !    membership.      "#$                  % Advertising rates are available upon request. Statements and expressions of $       &  '     ( opinion appearing herein are those of the advertisers or authors and do not %   %  $#$   )    necessarily refl ect the views of the State             
Bar of Montana.

Postmaster: Send address changes to * $ +   Montana Lawyer, P.O. Box 577, Helena MT 59624. ,-.%,/0%12/34 5 %  

Copyright 2012 State Bar of Montana  Printed in Billings at Artcraft Printers              $#$ 66        % % 7

www.montanabar.org Page 3 President’s Message | President-Elect Pam Bailey Top eight challenges facing the State Bar

Th e State Bar is at a pivotal time in its is burdening the courts who are already sole practitioners. Not only do we need to 40 year history. Th e Board of Trustees met struggling with delays. protect and support the aging attorney, we in June to discuss developing a strategic also have an obligation to protect clients plan to guide the State Bar over the next 3. The Speed (or Lack Thereof) and the perception of the bar. Before 3-5 years. As President-Elect, I was tasked of Civil Litigation emergent situations arise, sole practitio- with developing the challenges we need to Th ere is a growing concern regarding ners must have a plan in place. address in that plan. To assist in this task, I delays in district courts. It is becoming invited all local bar presidents, new lawyer more diffi cult to have a hearing or other 7. The Great Technology Divide leadership, law school leaders, law school proceedings scheduled in a timely man- Th ere is a resistance in our profession administrators, leaders of the Montana ner. In many cases, it is taking the judge to technology changes, particularly with Trial Lawyers and Montana Defense attor- a year or more to make a ruling or even our aging demographics. Technology pres- neys, Montana’s ABA delegation, man- set a hearing. Th ere is an inconsistency ents competency issues. Confi dentiality agement from Montana Legal Services, amongst the diff erent districts with this is a major concern. Th ere is a lack of State Bar staff , and, section and committee issue. As the saying goes: justice delayed technological competency of some of our chairs. is justice denied. Delays create a negative judicial members. Communication has I knew that facilitation of this gather- public perception of the courts and the become impersonal and can cause a de- ing would be vital to its success. I was for- profession. Th ere is a negative impact on cline in professionalism. Th ese problems tunate to obtain the assistance of Professor the economy. Th e ability to have timely are not going away. If anything, they will Martin Burke. Th ere was lively discussion, resolutions of legal issues is integral to increase. and, while everyone had diff erent perspec- maintain the rule of law. 8. Making the State Bar Relevant tives and diverse interests, there was a 4. Civics Education My friend, Bobbi Anner-Hughes, sincere interest and concern on everyone’s Th ere is a public ignorance of the President of the Montana Trial Lawyers, part about the future of our profession. As attended the Strategic Planning Meeting. part of the meeting, the leaders were asked legal system and legal procedures, which results in lack of respect for our profes- When I asked Bobbi what she found to to identify the top challenges we face. Th e be benefi cial, she summed it up in one top eight challenges were as follows: sion. Communication is the strategy to deal with this issue. We need to utilize sentence, “Th e most important thing I am 1. Prioritizing Bar Services the State Bar’s web site, local media, the taking away from this meeting is that it is and Programs Montana Library Association, the schools, critical that we are self-regulated.” Bingo! If we do not regulate ourselves though an Th e State Bar reserve funds are dwin- legislative counsel, etc., to provide infor- organized bar, the legislature will do it dling. How can we continue to provide mation and education regarding the legal for us. Addressing the challenges that the valuable services to our membership and system. profession faces requires a coordinated maintain fi nancial solvency? We want to 5. Aging Demographics eff ort that can only be mounted by an or- continue to meet the needs of our mem- Fift y percent of the attorneys in our ganized bar. We need to continue to meet bers and the public. Our members have state are over fi ft y years of age. We have the concerns and needs of our member- oft en become resistant to bar programs a moral obligation to take care of our ship, from the time they are admitted to because of the cost and questionable rel- own. Older attorneys expect and deserve the time they retire. evancy. Many members already complain support services from the bar. In smaller that their dues are too high. A balanced communities with few attorneys, who will Conclusion budget is essential. provide legal services when these individu- We welcome your input as we move 2. Pro Se Litigants als retire? With fewer attorneys, there will forward in developing the new strategic Th ere continues to be a growing be a decline in bar dues and revenue. plan. Please contact a member of the number of self-represented parties ap- Board of Trustees or Executive Committee pearing before the courts. Some of these 6. End of Practice with your thoughts and suggestions. individuals are indigent, others are not. In addition to fi ft y percent of our Better yet – consider becoming involved Th e growing number of pro se litigants membership being over fi ft y years of age, in our bar association and be a part of the does not refl ect well on the State Bar and a high percentage of Montana lawyers are solution

Page 4 August 2012 Montana and Member News

Nygren accepts new position; the University of Iowa College of Law Olney joins Helena fi rm fi rm announces name change in 1986. He became Board Certifi ed in Consumer Bankruptcy in 1995 and Kelton Olney has Chris Nygren, a shareholder with Business Bankruptcy in 2005, by the recently joined the law fi rm the Missoula fi rm of Milodragovich, American Board of Certifi cation. Aft er of Luxan & Murfi tt, PLLP Dale, Steinbrenner, and Nygren, practicing law and serving as a bankrupt- in Helena. A native of P.C., has accepted a position as the cy trustee in central Iowa, he established Vermont, Kelton has lived in Montana since 1999. Assistant General Counsel for Barnard a private practice in Kalispell, Montana, Olney Construction Companies headquartered in 1999. He specializes in bankruptcy, He is a graduate of the in Bozeman. Th e new fi rm name will be debtor / creditor and commercial law. University of Vermont and Milodragovich, Dale, Steinbrenner, P.C. the University of Montana School of Law. Silverman leaves Revenue, He has been practicing law in Missoula Cossitt a contributing editor for opens law offi ce and Helena since 2002. At Luxan & consumer bankruptcy book Murfi tt, PLLP, Kelton’s practice will focus Helena attorney Joel E. Silverman on health care law, banking law, general Th e King Bankruptcy Practice Series recently left the Montana Department business law, and civil litigation. of the Morgan King Company recently of Revenue, aft er fi ve and a half years published “Cracking the Means Test of practicing liquor and tax litigation, Keiser joins Bozeman fi rm in Consumer Bankruptcy Cases” by and has opened his own law offi ce. Mr. Kasting, Kauff man & Mersen, P.C. Catherine E. Vance and Morgan D. King. Silverman specializes in estate planning, Attorneys At Law, are pleased to an- James H. Cossitt, a bankruptcy special- tax, transactions, business, and liquor nounce that Kathryn E. Keiser, Esq. has ist in Kalispell, Montana, is one of the law. He may be contacted at P.O. Box joined the fi rm as an associate attorney. contributing editors of the book. 4423, Helena, MT 59604, (406) 449- Ms. Keiser received her bachelor’s degree A graduate of Iowa State University, 4TAX (829), [email protected], Mr. Cossitt received his law degree from www.mttaxlaw.com. MEMBER NEWS, Page 6

Page 5 Montana and Member News

Legislative committee to solicit testimony on substitution of District Court judges On September 6, 2012, the Law and Justice Interim two legislative sessions following adoption of the rule. Committee, a statutory interim committee of the Montana Th e purpose of the September hearing is to solicit testi- Legislature, will hold a hearing on the Montana Supreme mony on whether or not the rule governing substitution of Court rule governing substitution of District Court judges. District Court judges should be disapproved. Th e rule appears in the Montana Code Annotated as section Th e hearing will begin at 10:15 a.m. in room 102 of the 3-1-804, MCA. State Capitol in Helena. Th e hearing has been requested by Pursuant to Article VII, section 2(3), of the Montana representatives of the Montana Judges Association. Constitution, the Legislature may disapprove a rule of proce- Interested persons may contact the Committee staff , Dave dure adopted by the Montana Supreme Court in either of the Bohyer, at (406) 444-3064, with any questions.”

to Watch in Labor & Employment. Holland & Hart’s Billings Member News offi ce was also recognized for its strong practice groups in from page 5 Corporate/M&A, Labor & Employment, and Natural Resources & Environment. Chambers USA ranks the leading fi rms and from Montana State University - Bozeman with highest honors lawyers in an extensive range of practice areas throughout and her law degree from the University of Montana School America. of Law. Prior to joining Kasting, Kauff man & Mersen, P.C., Ms. Keiser was the Law Clerk to the Honorable Russell Fagg, Drummond elected president of National District Court Judge in Yellowstone County. She will be assist- Association of Chapter 13 Trustees ing the fi rm in all aspects of its practice. Great Falls Attorney Bob Drummond was recently elected Six attorneys from Billings fi rm president of the National Association of Chapter 13 Trustees. named Super Lawyers Drummond has been the only Chapter 13 Trustee for the District of Montana since 1992. Th e National Association of Six Holland & Hart Billings attorneys Chapter 13 Trustees is composed of over 1000 Bankruptcy and have been named to the 2012 list of Mountain Insolvency Professionals from around the country. States Super Lawyers. Th e attorneys and their practice areas are: Jeanne Matthews Bender Shaff er, Stepans, Meyer announce new fi rm in Employment & Labor, Charles Hingle in Bankruptcy & Creditor/Debtor Rights, Laurence Bender Members Ryan Shaff er and Robert Stepans, together Petersen in Mergers & Acquisitions and with Richard Meyer, are pleased to announce the formation Robert L. Sterup, Jr. in Litigation. Shane Coleman and Jason of Meyer, Shaff er & Stepans, PLLP. The fi rm has offi ces in Ritchie were listed as Rising Stars in Intellectual Property and Jackson, WY; Missoula, MT; and Sidney, MT. Members of the Employment & Labor, respectively. Jeanne Matthews Bender fi rm are admitted in Arizona, Colorado, Montana, Utah and was also recognized with the distinct honor of being listed Wyoming. among the Top 50 Women Mountain States Super Lawyers. Th e fi rm is available for consultation and association in mat- ters of litigation. Chambers USA honors six attorneys, three Jewell accepts new position in Fresno, Calif. practice areas of Billings fi rm Missoula attorney Monte Jewell accepted a position as Six Holland & Hart attorneys and three of the fi rm’s practice Litigation and Advocacy Director for Central California Legal areas in the Billings offi ce, were honored by Chambers USA Services. Monte will work from the Fresno offi ce of CCLS at for 2012: Jeanne Matthews Bender and Elizabeth Nedrow in 2115 Kern Street, Suite 1, Fresno, California 93721, (559) 570- Labor & Employment; Charles Hingle and Larry Petersen in 1200. He invites his Montana colleagues and friends to please Corporate/M&A; and Scott Mitchell in Natural Resources & remain in touch! Environment. Jason Ritchie was also recognized as an Associate

Page 6 August 2012 Justice Foundation approves $185,000 in grants

Th e Montana Justice Foundation an- nually awards grants to nonprofi t organi- Funding cuts severely aff ecting legal aid services zations that provide civil legal services to The House of Representatives recently voted to cut funding to the Legal Services eligible persons; promote knowledge and Corporation (LSC) by $20 million and even threatened to eliminate funding completely. awareness of the law; and/or facilitate the eff ective administration of justice. In May The decisions made by Congress regarding the LSC have a direct impact on low-income 2012, MJF approved $185,000 in operat- Montanans. The LSC provides grants to 135 legal aid organizations nationwide, including a grant that accounts for more 40% of the Montana Legal Services Association’s (MLSA) total ing grant awards to eleven organizations budget. In recent years, MLSA has had to lay off fourteen employees from its already small for the award year ending June 30, 2013. staff as well as eliminate or reduce vital self-help and Helpline programs. Since 1986, the MJF has contributed nearly fi ve million dollars to Montana access to Moreover, in January of 2012 the Federal Reserve announced it would be extending its justice programs. More information about benchmark interest rate of zero to .25% through the end of 2014. The drastically depressed rates have had a devastating impact on funding for civil legal aid in Montana and the grant process, application deadline and throughout the nation. The Montana Interest on Lawyers Trust Accounts (IOLTA) Program descriptions of current grantees is available provides for a signifi cant portion of legal aid funding. Consequently, the Montana Justice at www.mtjustice.org. Foundation (MJF), which administers the IOLTA program, has been forced to dramatically CASA-CAN of Cascade County reduce grants to local providers over the past fi ve years. $6,000 Operating Federal funding cuts for legal aid paired with continued rock bottom interest rates on Lisa Goff , Executive Director IOLTAs will have a severe impact on dozens of Montana law clinics, legal aid organizations, CASA-CAN provides highly trained volun- pro bono programs, self-help law programs, CASAs, community mediation centers, and teer guardians ad litem to speak on behalf domestic violence education and service provider programs. The number of Montanans of abused and neglected children involved in need of legal services increases as the economy remains depressed. It is now more in youth-in-need-of-care cases in the Eighth important than ever to preserve LSC and MJF supported legal aid programs. Judicial District Court. Heather Rogers of Remapping Debate wrote an article in June that illustrates the history CASA of Missoula, Inc. of LSC funding cuts and discusses how much money is really needed in order to make $3,000 Operating access to justice a reality for all Americans. It’s titled “The relentless push to bleed Legal LaNette Diaz, Executive Director Services dry.” You can read it at this URL: http://bit.ly/NSR5Kp Through independent, trained volunteers, CASA of Missoula provides consistent, long- — Montana Justice Foundation term advocacy for children who are at risk or have experienced abuse and neglect in Missoula and Mineral counties. Low-income Family Mediation Program serves Montana Innocence Project clients in the Eighteenth and Sixth judicial $1,000 Operating for Innocence Clinic Cascade County Law Clinic district courts. Jessie McQuillan, Executive Director $5,000 Operating MTIP provides legal assistance to indigent Judith Pylar Domestic Violence Education & Montanans who claim to be wrongfully con- The Clinic serves low-income clients in Services (DOVES) victed. Legal assistance is provided through Cascade County through the eff orts of a small $500 Operating the Innocence Clinic, affi liated with the in-house staff and a roster of local attorneys Jenifer Blumberg, Executive Director University of Montana Schools of Law and handling cases on a pro-bono basis. The Clinic DOVES provides assistance to victims of Journalism. Client services for post-conviction, accepts family law and guardianship cases, domestic abuse in Lake County and on the civil legal matters are provided through a provides limited pro se assistance, and makes Flathead Indian Reservation with a variety of small staff assisted by pro-bono attorneys and referrals for services not available through the civil legal needs, ranging from representation student interns. Clinic. at Order of Protection hearings to complex family law, housing, and immigration issues. Montana Legal Services Association Community Dispute Resolution Center $148,000 Operating of Missoula County Eastern Montana CASA/GAL Inc. Alison Paul, Executive Director $3,000 Operating $6,000 Operating MLSA provides statewide free legal services Mary DeNevi, Executive Director Cherie LeBlanc, Executive Director to low-income Montanans in the areas of The CDRC educates, empowers, and supports Eastern Montana CASA/GAL serves twelve family, housing, and consumer law and public low-income Missoula County community counties in Eastern Montana by providing the benefi ts. In addition to direct representation, members in creating peaceful and collabora- Seventh and Sixteenth judicial district courts MLSA provides community legal education, tive solutions by providing low and no-cost with trained volunteers to represent the best coordination and support of pro bono resourc- mediations. Services are provided through interest of a child or children in neglect and es, and legal advice and referrals. the eff orts of a part-time coordinator and abuse court proceedings. volunteer board and mediators. Yellowstone CASA, Inc. HAVEN $4,000 Operating Community Mediation Center $3,000 Operating for Legal Advocacy Program Angela Campbell, Executive Director $5,500 Operating for Low-income Family Kristy McFetridge, Executive Director Yellowstone CASA trains volunteers to provide Mediation Program Through its Legal Advocacy Program, HAVEN a voice for abused and neglected children in Connie Campbell, Executive Director assists victims of domestic or sexual violence the Yellowstone County court system. CASA The Center provides quality, aff ordable in seeking Orders of Protection and provides volunteers promote children’s best interests dispute resolution services and education information, education, and referrals for other and advocate for safe, permanent homes. using trained, volunteer mediators. The CMC’s civil law matters. The Montana Justice Foundation Board of Directors gratefully acknowledges the following donors for their support of the MJF and the access to justice cause.* The Montana Justice Foundation Society of Justice:

HON. WILLIAM J. JAMESON CIRCLE TRIBUTE GIFTS

These donor’s gifts, over the course of their lifetime, The MJF gratefully acknowledges those who have made gifts in meet or exceed $10,000 memory or in honor of colleagues, family, and friends. Bolded names are those being remembered or honored. ALPS Boone Karlberg, PC IN MEMORY OF: Donald Robinson Robert E. Sheridan Cok & Kinzler John Bock Phyllis Bock Rita Ann Sheehy Robert & Bonnie Minto J. Martin Burke Rosemary Boschert Hon. Karla Gray People’s Law Center Diane Barz Leona Steinbeisser Williams Law Firm Lonnie Browning Trisha Zowada Rebekah J. French Irma Tonon Daphne Bugbee Jones Margaret Tonon Candace Fetscher HON. KARLA M. GRAY CIRCLE Frank Weber George Dalthorp Oliver & Christina Goe These donor’s gifts, over the course of their lifetime, Diane Barz Thomas Boone range from $5,000-$9,999 Max Hansen & Associates, PC IN HONOR OF: Charles Simonsen Allan Baris James E. Cogdon Douglas Drysdale Doug Austin J. Martin Burke Drysdale, McLean, Guza & Willett, PLLP Joe Gary Foust Law Firm Susan Swimley Dorothy Farlan Hughes, Kellner, Sullivan & Alke, PLLP Bridget LeFeber Hon. John C. Harrison Hon. Karla Gray Ila B. Dousmand Fund, Inc. Alex George Dick & Elaine Gagliardi Lee Magone Allan Karell Kathleen Magone Hon. John C. Harrison Matovich, Keller & Murphy PC Hon. Karla Gray Grace M. Scales Vincent Scales Mountain West Bank James McDonough Gary Scales Mary McDonough Mark Refling Ed Smith and Staff Bill McNamer Katrina Martin Hon. Keith Strong Diane Barz Robert Woodmansey Hon. Mike Wheat Adolph Polak Kevin Phillips Worden Thane, PC Pamela P. Collins

The Montana Justice Foundation works to achieve equal access to justice for all Montanans through effective funding and leadership.

To learn more about MJF and our work or to make a tax-deductable contribution, please visit us at www.mtjustice.org or contact us (406) 523-3920 | P.O. Box 9169 | Missoula, MT 59807-9169 Montana Justice Foundation Donors:

Gerald Allen Kenneth Dyrud Bridget LeFeber David Rice Lawrence Anderson Amy Eddy Constance Leistiko Kathleen Richardson Jerome Anderson Anna Edwards Lewis Slovak Kovacich & Marr PC Susan Ridgeway Kendra Anderson Erb & Suenram PLLC Mike Lilly Douglas Ritter Angel Coil & Bartlett Charles Evans Molly Litzen Fredric Robinson Thomas Ask Mark Evans Steven Lobdell Gerry Rossberg Doug Austin Patty Fain George Losleben Lukia Roth Paul Babb Candace Fetscher Don MacIntyre David Rusoff Hon. Beth & Tim Baker First Giving ‒ Robin Meguire Run for Mark Mackin Michael San Souci Allan Baris Justice Maclay Law Firm Heather Sather Edward Bartlett First Interstate Bank Missoula Jim Madden Gary Scales Diane Barz First Security Bank Molly Maffei Elizabeth Scanlin Jeneese Baxter Tim Flanagan Kathleen Magone Ann Schrader Beck & Amsden Cynthia Ford Mike Majerus Schulte Law Firm PC Bell & Bell P.C. Lucy France Lyle Manley Randy Schwickert Berg Lilly & Tollefsen PC Victoria Francis Christopher Manos P. Mars Scott Jeannette Berry Rebekah French Marshall Law Firm Stuart Segrest Bidegaray Law Firm LLP G. Steven Brown Law Offices Katrina Martin Peter Serino Randy Bishop Dick & Elaine Gagliardi Matovich Keller & Murphy PC Craig Shannon Andrew Blewett Damon Gannett Max Hansen & Associates PC Molly Shepherd Joella Bloomgren Garlington Lohn & Robinson PLLP Mary McDonough Robert Sheridan Phyllis Bock Diana Garrett Hon. Michael McGrath Sherlock & Nardi Sarah Bond J. Devlan Geddes Sydney E. McKenna Michael Shin Thomas Boone Jill Gerdrum McMahon Wall & Hubley Law Firm PLLC Charles Simonsen Boone Karlberg PC Christina and Oliver Goe Jessie & Brendan McQuillan Amy Sings In The Timber Thomas Bowe Goetz Gallik & Baldwin PC Robin Meguire Maylinn Smith Calvin Braaksma Sean Goicoechea Koan Mercer Mark Smith Stan & Glenda Bradshaw Stacey Gordon Jock (Robert) Michelotti, Jr. Snavely Law Firm Hank Branom Graves & Toennis Mark Miller Mark Stermitz Bransby Law Firm Hon. Karla Gray Wallace Miller Anita Stern Ann Brodsky Kyle Gray Robert & Bonnie Minto Stockman Bank Daniel Browder Graybill Law Firm Missoula Federal Credit Union Jack Stone Bob & Debbie Brown Paul Grisby Ted Mizner Hon. Keith Strong Holly Brown Jordan Gross Moore O’Connell & Refling Robert Sullivan Bradford Brown Joel Guthals Whitney Morgan Bruce Swenson Browning Kaleczyc Berry and Hoven P.C. Jonathan Haber Hon. Brian Morris Susan Swimley Michelle Bryan Mudd Graden Hahn Mountain West Bank Melanie Symons Pamela Bucy Tim Hall Kelsie Myers Tarlow Stonecipher & Steele Kelsey Bunkers Mike Halligan Dennis Nettiksimmons Matthew Thiel Bari Burke Halverson & Gilbert PC Eric Nord Shaun Thompson J. Martin Burke Harold Hanser John North Leslie Thomson Ashley Burleson Jenny Harbine Mindy Nowakowski Margaret Tonon Bush Law Office PC Anita Harper Poe James Nugent Hon. Karen Townsend Buxbaum Daue & Fitzpatrick John Heenan Mary Obermiller Hon. Terry Trieweiler Connie Campbell Ann Hefenieder Nancy O’Brien Chuck Turner Robert Carlson Hon. Joe Hegel Paul Odegaard Chris Tweeten Christensen Fulton & Filz PLLC Heggen Law Firm William Odell Debra Upton Christensen Moore Cockrell Cummings Ed Higgins Robert Ogg US Bank Gary Chumrau Julianne & Sean Hinchey Katie Olson Tara Veazey Jen Clark Jessica Hodges Matt O’Neill Waddell & Magan Operations Danielle Coffman Brian Holland Kenneth Oster Monique Waddington David Cogley Hughes Kellner Sullivan & Alke Nick Pagnotta Angela Wagenhals Cok & Kinzler PLLP Jeff Hunnes Samuel Panarella David Wagner Cole Law Firm, PLLC Huppert Swindlehurst & Woodruff PC Paoli Kutzman PC Stephen Wallace Pamela Collins Ila B. Dousman Fund Inc. Rebecca Pape David Weaver Robert Collins Katherine Irigoin Parker Heitz & Cosgrove PLLC Mike Weber Communication Cues LLC Gary Jackson Alison Paul Jeremiah Weiner Community Bank Missoula Ryan Kurt Jackson Duncan Peete Wells Fargo Mark Connell Angela Jacobs People’s Law Center Cindy E. Younkin Gary & Karen Dunnigan Connelley Jarussi & Bishop Karen Pfeifer Trisha Zowada Connors Law Firm PLLP Jeffries Court Reporting Kevin Phillips Anonymous Richard Conover Carl Jensen Phillips Haffey PC Anonymous Hon. Patricia & Michael Cotter Katherine Jerstad Mardell Ployhar Anonymous Ruth Cox Malin Stearns Johnson Thomas & Pamela Shore Power Anonymous Scott Crichton James Johnson Peggy Probasco Anonymous Ken Crippen Johnson Berg McEvoy & Bostock PLLP Marc & Theresa Racicot Anonymous Crist Krogh & Nord LLC Anthony Johnstone Ragain Law Firm Anonymous Jordan Crosby Mark Josephson Amy Randall Anonymous Crowley Fleck Kristen Juras Katie Ranta Anonymous Andrew & Susan Dana Karen Kane Babak Rastgoufard Anonymous Tom Daniel Karell Dyre Haney PLLP Hon. Michael Reardon Anonymous Steven Daniel Kasting Kauffman & Mersen PC James Troy Redmon Anonymous Datsopoulos MacDonald & Lind PC Thomas Keegan Krystal Redmond-Sherrill Anonymous Craig Daue Andrew Koenig Reep Bell & Laird PC Anonymous Hon. Dusty Deschamps Bill Kole Mark Refling Anonymous Ellen Donohue Kate Kuykendall Refling Law Group PLLC Anonymous Drysdale McLean Guza & Willett PLLP Arthur Lamey Hon. James Regnier Mark Dupont Bob & Valencia Lane Hon. Jim Reynolds

* Donor recognition reflects contributions made to the MJF Annual Gift Campaign between April 1, 2011 and March 31, 2012. Great effort has been taken to ensure the accuracy of the names listed. Should you find an error or an omission, please accept our apologies and contact MJF at (406) 523-3920. Court Orders

Court approves Uniform Bar Examination, revision to Rules Court clarifi es or Admission, and Rules for Character and Fitness M. R. App. P. 4(5)(b) Summarized from July 3 order Responsibility Examination (MPRE) shall Summarized from July 24 order AF 11-0244) remain in eff ect. AF 07-0016 IN RE PETITION TO ADOPT IT IS FURTHER ORDERED that, be- IN THE MATTER OF THE RULES UNIFORM BAR EXAMINATION ginning with the July 2013 Montana bar OF APPELLATE PROCEDURE and IN RE THE PETITION AND examination, a Montana bar applicant’s Th e Court seeks to address apparent MEMORANDUM IN SUPPORT OF score on the UBE earned in another confusion on the part of some retained REVISION OF THE 2005 RULES jurisdiction may be accepted and con- criminal defense counsel as to their FOR ADMISSION AND RULES OF sidered valid for a period of three years continuing responsibility for appellate PROCEDURE OF THE COMMISSION from when the score was earned. To be representation of the defendant. For that ON CHARACTER AND FITNESS accepted in Montana, UBE scores must purpose, on February 28, 2012, we began OF THE SUPREME COURT OF be certifi ed by the National Conference accepting public comments to proposed MONTANA of Bar Examiners to the Montana Bar amendments to M. R. App. P. 4(5)(b). Th e Montana Supreme Court ap- Admissions Administrator. (Th is provi- No comments were fi led. IT IS NOW proved adoption of the Uniform Bar sion was adopted 5-2, with Justices ORDERED that M. R. App. P. 4(5)(b) is Examination. Th e Court also approved Wheat and Morris dissenting.) amended as follows. Because the amend- revision of the 2005 rules for admis- IT IS FURTHER ORDERED that, be- ments clarify, and do not alter, counsel’s sion and rules of procedure of the ginning with the July 2013 Montana bar responsibilities, they shall take eff ect Commission on Character and Fitness. examination, the minimum passing com- immediately. Language added to the rule IT IS ORDERED that, beginning with bined scaled score on the Montana bar is highlighted and language deleted is the February 2013 bar examination, the examination is set at 270 on a 400-point stricken. NCBE online character and fi tness inves- scale. (Th is provision was adopted 5-2, (b) Appeals in criminal cases. tigation service will be used in Montana. with Chief Justice McGrath and Justice (i) In criminal cases, a An appeal Th e fees for that investigation (presently Morris dissenting.) from a judgment entered pursuant to set by the NCBE at $200 for students, IT IS FURTHER ORDERED that, be- section 46-18-116 must be taken within $275 for recent law school graduates, and ginning with the July 2013 examination, 60 days aft er entry of the judgment from $350 for attorneys) will be paid directly bar examination applicants shall pay fees which appeal is taken. A notice of appeal to the NCBE. (Th is provision was ad- to the State Bar of Montana to cover the fi led aft er the oral pronouncement of opted unanimously.) expenses of NCBE testing, as well as State a decision or sentence but before entry IT IS FURTHER ORDERED that, Bar of Montana expenses for administra- of the written judgment or sentence is beginning with the July 2013 Montana tion and character and fi tness review. treated as fi led on the date of such the bar examination, Montana will use the IT IS FURTHER ORDERED that, on written entry. Th e district court is not Uniform Bar Examination (UBE), con- or before October 31, 2012, the Board deprived of jurisdiction to enter the sisting of the Multistate Bar Examination of Bar Examiners, with assistance of the written judgment or order by the prema- (MBE), the Multistate Performance Test CLE Institute and the CLE Commission, ture fi ling of a notice of appeal. (MPT), and the Multistate Essay Exam shall fi le with the Clerk of this Court, (ii) Aft er fi ling a notice of appeal, (MEE). Th e Board of Bar Examiners is for Court approval, a written proposal retained criminal defense counsel will directed to administer the examination outlining a Montana law seminar compo- remain as counsel of record on appeal and to transfer and accept UBE scores in nent to be completed by every Montana until and unless counsel either obtains accordance with the policies governing bar applicant before admission to the bar. and fi les with the clerk of the supreme the UBE. (Th is provision was adopted As soon as practicable, the following court the client’s written consent to unanimously.) rules shall be amended to conform with counsel’s withdrawal, or obtains a In addition, before being admitted this Order: the Board of Bar Examiners’ supreme court order allowing counsel to to the Montana bar, all applicants will Rules (to be amended with the assistance withdraw. be required to personally participate of the Board of Bar Examiners); the Rules (iii) In criminal cases, a An appeal in a Montana law seminar component of Admission to the Bar of the State of from a judgment or order made appeal- to be developed by the Board of Bar Montana (to be amended with the as- able by section 46-20-103 must be taken Examiners, the CLE Commission, and sistance of the Board of Bar Examiners); within 20 days of the entry of the written the CLE Institute, and approved by the and the Rules of Procedure of the judgment or order from which appeal is Court.(Th is provision was adopted 5-2, Commission on Character and Fitness of taken. with Chief Justice McGrath and Justice the State Bar of Montana (to be amended Morris dissenting.) with the assistance of the Commission on Th e requirement of successful pas- Character and Fitness). sage of the Multistate Professional

Page 10 August 2012 Court Orders

Comments accepted until Oct. 15 on revisions IT IS FURTHER ORDERED that oral argument in cause to Rules for Lawyer Disciplinary Enforcement number DA 11-0559, State v. Fitzpatrick, shall begin at 10:30 a.m. with oral argument times to be thirty (30) minutes for the Summarized from June 19 order (AF 06-0090) Appellant and twenty-fi ve (25) minutes for the Appellee. Th e Offi ce of Disciplinary Counsel has asked the Court to amend Rule 33 of the Rules for Lawyer Disciplinary Issues for oral arguments in Kluver: Enforcement regarding the appointment of a trustee in situations in which there is a need to protect the clients of a Summarized from July 5 order (DA 11-0691) Montana lawyer who has disappeared, died or abandoned their By order dated June 28, 2012, the Court set this case for practice. oral argument on Friday, September 21, 2012, with argu- IT IS ORDERED that comments will be accepted on the ment times limited to thirty (30) minutes for the Appellants attached proposed revisions to Rule 33 of the Rules for Lawyer and twenty-fi ve (25) minutes for the Appellees. Upon further Disciplinary Enforcement until October 15, 2012. Comments review of the briefi ng, the Court determines it appropriate to should be fi led in writing with the Clerk of the Court. narrow the issues for argument. Accordingly, IT IS ORDERED that oral argument shall be limited to the Following election, Court appoints member following issues: to four-year term on Commission on Practice 1. Did the memorandum of understanding satisfy the stat- ute of frauds? Summarized from June 19 order (AF 06-0090) Pursuant to Rule 2(A) of the Rules for Lawyer Disciplinary 2. Did the District Court properly admit evidence outside Enforcement, an order was issued April 3, 2012, requiring the the four corners of the MOU to determine whether the parties Honorable Th omas M. McKittrick, District Judge, to conduct reached a binding settlement agreement during the mediation? an election among the resident members of the State Bar of Montana in Area C, comprised of Cascade, Glacier, Toole, Pondera and Teton Counties (Eighth and Ninth Judicial Districts) and to certify to this Court the results of the election. Such election was held and Judge McKittrick has certifi ed to this Court the results. Th e Court has appointed Jean Faure to the Commission on Practice of the Supreme Court of the State of Montana for a four-year term commencing the date of this Largest order. Levying Firm in Oral arguments in two cases scheduled Montana! before the Court at State Bar annual meeting Serving Process in Montana Summarized from June 28 order referencing DA 11-0681 and DA 11-0559 Insured and Bonded State of Montana V. Fitzpatrick to $150,000 and Online Access to Obtain the Status of Your Kluver, et al. V. PPL, Montana et al. Process - Updated Daily

IT IS ORDERED that pursuant to the Internal Operating Subpoenas, Summonses, Postings, Rules of this Court, these causes are classifi ed for oral argu- Orders, Notices, Letters, Writs, Levies, ment before the Court sitting en banc and are hereby set for Garnishments argument on Friday, September 21, 2012, at the Crowne Plaza Hotel, 27 North 27th Street, Billings, Montana, with an intro- duction to the oral arguments beginning at 8:00 a.m. Call or Email for Quote IT IS FURTHER ORDERED that argument in DA 11-0681, P.O. Box 4906 | Missoula, MT 59806 Kluver, et al. v. PPL, Montana, et al., shall begin at 9:30 a.m. with oral argument times to be thirty (30) minutes for the TEL: 406-721-3337 Appellants and twenty-fi ve (25) minutes for the Appellees. FAX: 406-721-0372 | TOLL FREE: 888-721-3337 [email protected] | www.equityprocess.com

www.montanabar.org Page 11 Court Orders

Court approves fee increase for pro hac vice its decision on the request. admission to equal that of member dues IT IS NOW ORDERED that, eff ective as to pro hac vice admissions granted on or aft er October 1, 2012, the fee for Summarized from July 31 order (No. AF 11-0244) pro hac vice admission to practice law in Montana shall be Th e State Bar of Montana has asked the Court to increase the amount paid annually by active members of the Montana the fee for pro hac vice admission to the bar of Montana. Th e bar (currently $385), to be paid each year for the term of the 2009 Rules for Admission to the Bar of Montana provide for a Montana litigation. However, for a lawyer who is appearing one-time fee of $345 for pro hac vice admission. Th e State Bar pro bono as defi ned under Rule 6.1 of the Rules of Professional has requested that this fee be increased to annual payments of Conduct, the pro hac vice fee shall be a one-time-only fee equal the bar dues amount for active members of the State Bar (cur- to the amount paid annually by active members of the Montana rently $385), for the term of the Montana litigation. bar. Th e Rules for Admission to the Bar of the State of Montana In March of 2012, the Court invited written comments on shall be amended accordingly, and concurrently with other this proposal. Two written comments were fi led during the amendments to those rules as required by our recent order comment period. At a July 24, 2012, public meeting, the Court adopting the Uniform Bar Examination and the NCBE online discussed this matter, accepted further comments, and reached character and fi tness application process.

Disciplinary Actions Summarized from June 12 order (PR 11-0091) Summarized from July 24 order (PR 11-0600) IN THE MATTER OF MICHAEL TRAMELLI, An Attorney IN THE MATTER OF THOMAS R. ANACKER, an at Law. Attorney at Law. Th e Court publically censured Michael Tramelli for violat- On October 13, 2011, a formal disciplinary complaint was ing Rules 1.5 and 1.18 of the Montana Rules of Professional fi led against Montana attorney Th omas R. Anacker. The formal Conduct. disciplinary complaint relates to Anacker’s failure to respond to Specifi cally, Tramelli failed to communicate to a client, in an earlier, informal disciplinary complaint fi led against him by writing, the scope of his representation of that client and the clients. Anacker is presently administratively suspended from basis or rate of the fee and expenses for which the client would the practice of law in Montana for nonpayment of dues, and did be responsible. not fi le a response to the formal complaint. Th e Court also concluded that Tramelli failed to deposit Th e Commission on Practice held a hearing on the formal $2,000 paid to him by his client into a trust account or a sepa- complaint on April 19, 2012. Anacker did not appear for the rate interest-bearing account, and that he neither completed the hearing either in person or through counsel. On June 4, 2012, work the client hired him to do nor communicated suffi ciently the Commission submitted its Findings of Fact, Conclusions of with the client. Law, and Recommendation for discipline. Anacker did not fi le any objections within the time allowed. Th e Commission has noted that, because of Anacker’s fail- Summarized from June 12 order (PR 11-0617) ure to answer the allegations of the formal complaint within the IN THE MATTER OF GREGORY W. DUNCAN, An time prescribed by Rule 12 of the Rules for Lawyer Disciplinary Attorney at Law. Enforcement (RLDE), the allegations of the complaint are Th e Court publically censured Gregory W. Duncan for deemed admitted. Th e Commission concluded that Anacker failure to adequately represent a client in relation to her ter- violated Rule 8.1 (b) of the Montana Rules of Professional mination from employment and other employment-related Conduct by failing to respond to lawful requests for informa- matters, resulting in multiple violations of the Montana Rules tion from the Offi ce of Disciplinary Counsel and by failing to of Professional Conduct. Th e proceedings were founded upon appear before the Commission at the hearing. his tendered admission, which the Court approved upon the Th e Commission recommends that, as a result of his viola- recommendation of the Commission on Practice. tions of the Montana Rules of Professional Conduct, Anacker be disciplined by suspension from the practice of law in Montana for an indefi nite period of not less than seven months. Summarized from May 29 order (PR 12-0196) At the hearing before the Commission, disciplinary coun- IN THE MATTER OF ANN C. GERMAN, an Attorney at sel pointed out that this duration of suspension will require Law. Anacker to petition for reinstatement and to prove he is fi t and Ann C. German was indefi nitely suspended from the prac- able to practice law before he is reinstated. Th e Commission tice of law in Montana for not less than six months beginning also recommends that Anacker be ordered to pay the costs of on May 1, 2011, in this Court’s Cause No. PR 10-0428. She has these proceedings. not petitioned for reinstatement from the period of suspension Th e Court accepted and adopted Commission’s Findings of Fact, Conclusions of Law. DISCIPLINE, Page 13

Page 12 August 2012 Court Orders

Discipline Recommendation for discipline. Beck fi led objections to the from page 12 Commission’s fi ndings, conclusions, and recommendation, and the Offi ce of Disciplinary Counsel (ODC) has led fi a imposed under that cause number. response. On March 27, 2012, the present formal disciplinary com- Th e Commission has concluded, based on the allegations plaint was fi led against Ann C. German. Th e six-count com- of the complaint and the evidence produced at the hearing, plaint is based on acts and omissions alleged to have occurred that R. Allen Beck has violated multiple provisions of the before German was suspended in Cause No. PR 10-0428. Montana Rules of Professional Conduct (MRPC) during his Briefl y stated, the complaint alleges German failed to compe- representation of a client and fi ve corporations controlled by tently represent, expedite litigation on behalf of, and consult that client, in six Chapter 11 bankruptcy proceedings. Th e with a client in violation of Rules 1.1, 1.3, 1.4, and 3.2 of the Commission concluded Beck violated Rule 1.5(a), MRPC, Montana Rules of Professional Conduct (MRPC); that she in that he charged an unreasonable fee for his services. Th e failed to comply with a hearing examiner’s scheduling order, Commission concluded, and Beck admitted, that he violated to appear for a status conference before the hearing examiner, Rule 1.5(b), MRPC, in that he did not communicate in writ- or to provide a written explanation for those failures, in viola- ing the basis for his fee or the scope of his representation; tion of Rule 3.4, MRPC; and that she failed to withdraw from nor were the fee and the scope of representation approved the representation of the client when her physical or mental by the bankruptcy court. Th e Commission concluded Beck condition materially impaired her ability to represent that cli- violated Rule 1.15 and 1. 18, MRPC, in that he did not deposit ent, in violation of Rule 1.16, MRPC. his client’s funds into a trust account, did not segregate his German has tendered to the Commission on Practice a property from his client’s, and failed to maintain any record or Conditional Admission and Affi davit of Consent made pursu- account of his client’s funds. Th e Commission further con- ant to Rule 26 of the Montana Rules of Lawyer Disciplinary cluded Beck violated Rule 1.4, MRPC, in that he failed to keep Enforcement. On April 20, 2012, the Commission held a his client reasonably informed. Th e Commission concluded private hearing on this matter, at which German appeared and Beck violated Rule 1. 1, MRPC, in that he did not provide addressed the Commission. Th e Commission has now filed competent representation in the bankruptcy proceedings. Th e with this Court its recommendation that the Court approve Commission concluded Beck violated Rule 1.7, MRPC, by rep- German’s tendered admission and the discipline to which she resenting both his clients and his client’s corporate entities in has consented in her tendered admission. spite of a confl ict of interest in that several of the corporations Th e discipline to which German has consented, and owed the client money. Finally, the Commission concluded that the Commission recommends we impose, is as follows: Beck violated Rule 5.3, MRPC, in that he failed to adequately German shall be indefi nitely suspended from the practice of supervise his employee, who prepared faulty bankruptcy law for a period of not less than six months, which suspension schedules for Beck’s client. shall run consecutively to the suspension imposed in Cause Th e Commission recommends that, as a result of these No. 10-0428; German shall continue to undergo regular addic- violations of the Montana Rules of Professional Conduct and tion counseling with a licensed therapist, counselor, psycholo- his past disciplinary history, Beck be disciplined by suspen- gist, or psychiatrist, with whose treatment recommendations sion from the practice of law in Montana for an indefi nite she shall comply; German shall provide the Commission with period of not less than seven months. Th e Commission also HIPAA-compliant releases for all records generated by her ad- recommends that Beck be ordered to pay the costs of these diction counselor; and German shall be assessed with the costs proceedings. of these proceedings. Beck’s objections to the Commission’s fi ndings, conclu- Th e Court accepted the Commission’s recommendation to sions, and recommendation begin with a lengthy recitation of approve German’s conditional admission. “key events . . . . to place the Responses and Objections into a meaningful context.” He then goes on to admit several of the allegations of the complaint, but denies that he spent any of Summarized from June 26 order (PR 11-0205) his client’s money before earning it, that he failed to adequate- IN THE MATTER OF R. ALLEN BECK, An Attorney at ly supervise an employee, or that he represented clients with Law. confl icts of interest or failed to provide competent representa- On April 13, 2011, a formal disciplinary complaint tion. In its response, ODC maintains that clear and convinc- was fi led against Montana attorney R. Allen Beck. The ing evidence supports the Commission’s fi ndings, and that its Commission on Practice held a hearing on the complaint on conclusions are correct. We agree. January 20, 2012, at which hearing Beck represented himself Th e Court accepted and adopted The Commission’s and testifi ed on his own behalf. Findings of Fact, Conclusions of Law, and Recommendation. On April 25, 2012, the Commission submitted to this Court its Findings of Fact, Conclusions of Law, and

www.montanabar.org Page 13 Want to know more? Introducing: For further information, contact the Pro Bono Coordinator, Patty Fain at pfain@ mt.gov , (406)794-7824, or the Pro Se Law Clerk, Sally Johnson at sjohnson2@ The Appellate mt.gov, (406)444-1412, or consult the State Bar website and follow the link to Pro Bono Program the Appellate Pro Bono Program.

By Order dated May 22, 2012, the Montana Supreme to be the responsibility of the parties. Court established an Appellate Pro Bono Program (APBP Once the Court has identifi ed a case for participation in the or Program), which became eff ective July 1, 2012. The APBP Program, the Court will direct the PSLC to notify the self-rep- is coordinated by the Montana Supreme Court’s Pro Bono resented party or parties in writing with the application packet. Coordinator (Coordinator) and the Court’s Pro Se Law Clerk Th e self-represented litigant may decline to participate in the (PSLC). Th is article outlines the process for attorneys and law APBP by indicating so on the Application and returning the students to off er pro bono services through the APBP. completed Request to Decide the Appeal form to the PSLC. If the self-represented litigant chooses to participate in Case Qualifi cation the Program, the litigant must complete and return the APBP litigant application and the MLSA Application for Assistance A case qualifi es for the APBP when: (1) aft er initial briefi ng, within fourteen (14) days of the date of the letter. the Court determines there are one or more issues in which the To apply for fi nancial qualifi cation, the self-represented Court could benefi t from additional briefi ng and possibly oral litigant must complete the MLSA Application for Assistance. argument; and (2) the self-represented litigant is fi nancially Th is form may be completed and submitted electronically. eligible.Financial eligibility occurs when the Montana Legal Alternatively, the self-represented litigant may complete the Services Association (MLSA) , confi rms that the self-repre- hard copy of the form included in the information packet sented party would qualify, or be eligible, for use of MLSA’s from the PSLC and return it to MLSA by mail. Aft er the MLSA services. A “qualifi ed litigant” is a self-represented litigant who determines fi nancial eligibility, MLSA will notify the PSLC who meets the above criteria. will notify the self-represented litigant and the Coordinator. If Recruiting Volunteer Attorneys the litigant meets the fi nancial qualifi cation requirements, the Coordinator will begin selection of counsel. Th e Coordinator will continue recruitment eff orts to enlist pro bono appellate lawyers who are willing to accept the cases Appointing Pro Bono Counsel that have been selected for participation in the APBP. Attorneys and law students who off er their services through the APBP Attorneys and law students who are interested in participat- may do so as a mentor, a lead attorney, a law student, or at- ing in this program must complete a brief online or hard copy torney with a mentor. When an attorney accepts a case through form. Th e Coordinator will select volunteer counsel (or student the Program, the attorney becomes eligible to receive, through and mentor) from this pool of volunteer applicants. To facilitate MLSA, primary or secondary malpractice insurance for the effi cient case and client control, a mentor shall not be included duration and scope of the pro bono appellate representation. in any formal appointment papers. When volunteer counsel has been selected, the Coordinator will confi rm the lack of confl icts Litigant Qualifi cation and notify counsel in writing. Aft er the selected attorney has had the opportunity to meet Once the Court requests supplemental briefi ng, the parties with the litigant and/or fi le a notice of appearance in the case, to the appeal will be notifi ed of the Court’s request. Members counsel shall return an “Attorney Confi rmation of Acceptance” of the Court have no involvement in the selection of pro bono of APBP case. Aft er consulting with the client and obtaining counsel. Nor shall the self-represented litigant participate in the necessary documentation relating to the representation, volun- attorney selection process. teer counsel shall fi le a Notice of Appearance. If there are multiple parties to the appeal who are qualifi ed If an objection is made to the selection of a volunteer coun- litigants, each will be off ered an opportunity to participate in sel, fi nancial eligibility cannot be confi rmed, or if a volunteer the Program and the assignment of pro bono counsel. Except match cannot be made for any reason, the Coordinator will for court fees waived in accordance with existing rules, tran- scripts and other costs associated with the appeal will continue PRO BONO, Page 15

Page 14 August 2012 Pro Bono for extension of time must be submitted to the Clerk of the from page 14 Supreme Court via motion in substantial compliance with the Montana Rules of Appellate Procedure. notify the PSLC, who will in turn notify the Court. Th e PSLC Th ere is no guarantee that any participating case will se- will also notify the self-represented litigant by letter that ap- lected for oral argument to the Court; however, should vol- pointment of counsel was unsuccessful. Th is will allow the case unteer counsel request oral argument, the Court will consider to be decided based upon the briefs fi led with the Court. the preferences of counsel as well as the nature of the case to determine whether oral argument is appropriate. If the Court Substitution of Pro Bono Counsel classifi es the case for oral argument, an order will issue schedul- ing the date and time for argument and specifying the amount Although it is anticipated that an APBP-appointed attorney of time allowed to each party in accordance with the Court’s will handle the pro bono appeal through completion, it is recog- Internal Operating Rules. nized there are times when an attorney who accepts representa- tion must withdraw due to circumstances beyond the attorney’s Continuing Role of Coordinator control. Withdrawal of counsel may be permitted in accordance with the rules governing withdrawal in other cases. If the Court and Pro Se Law Clerk permits withdrawal, the Coordinator will attempt to place the Th e Coordinator will maintain contact with the volunteer client with another volunteer attorney. attorneys for administrative purposes. Th e Coordinator will assist in directing the volunteer attorney to practice resources Post-Appointment Procedures and information to facilitate a positive pro bono experience and To expedite access to the District Court record, and avoid serve as the point of contact between the volunteer attorney and costs associated with printing and postage, the Coordinator will the Court. facilitate volunteer attorney access to the record directly from Th e PSLC will serve as the contact for the litigant should the District Court. an issue arise with volunteer counsel. Th e PSLC will monitor Th e Court will issue a Scheduling Order setting forth the case progress.Th e PSLC and Coordinator will confer as the dates when supplemental briefs are due. Any requests necessary.

Stand Out from the Crowd with ARAG®.

As an ARAG Network Attorney, you'll gain increased visibility See Your Benefits Multiply for your firm, the opportunity to build more client ❙ Increased clientele and enhanced referral opportunities relationships, and the potential for future business referrals. from satisfied ARAG clients. ARAG partners with more than 6,400 attorneys nationally, to ❙ Guaranteed payment directly to you.1 provide legal service to individuals in large organizations. ❙ Greater visibility of your firm with no additional Members choose an attorney from our knowledgeable marketing expense. network base and ARAG pays the attorney directly for ❙ Ease of administration through various online resources covered matters. and personal support. ❙ No participation fees allowing you to grow your business without additional overhead. ❙ Choose and revise your areas of law from more than 40 areas of practice. ❙ Network nationally with more than 6,400 attorneys.

Learn More about ARAG 866-272-4529, ext 3 ❙ [email protected] ARAGgroup.com

1 gnidroccA ot eht GARA eeF eludehcS 017932

www.montanabar.org Page 15 Cover Story| Annual Meeting 2012 Ranch life ex Commentary by Mark Parker

I write to encourage all of you to mark your calendar so you can attend the Montana State Bar Annual Meeting in September. Our keynote speaker will be BIG Sandra Day O’Connor, retired Associate Justice of the United States Supreme Court. Yes, I understand, this is where I am supposed to say she was the fi rst woman to be appointed to the high court. Th is is all true, and important, but a tinny refrain when compared to what Justice O’Connor really brought to the high court. She was a ranch girl. Th e “girl” business is important, SKY no doubt. I will leave it to others to speak rendezvous on that score. Aft er reading “Lazy B,” my personal prejudice is that the ranch part was as important as the girl part. “Lazy B” is a careful and straightfor- ward autobiography of Justice O’Connor. Except for a few species of fl ora and fauna not indigenous to Montana, it otherwise could have been set in Montana. She had a life of cattle, cattle hands, hard work, STATE BAR OF MONTANA outdoors, regulatory intrusion, market ANNUAL MEETING 2012 | BILLINGS vagaries, joy and sorrow. All familiar com- ponents of a Montana ranch. Th e ambitious reader should stop here, Th is year’s annual meeting, “Big Sky Rendezvous,” is in the Magic City, log on to Amazon.com, order a copy of Sept. 20-21, with opening activities starting on Sept. 19. “Lazy B,” and draw their own conclusions. Events kick off Th ursday with the local bar reception at Zoo Montana, It is a quick read. Not because it lacks which features live music by South Bound and zoo visits starting at 4 p.m. depth or importance. It refl ects the ethic Offi cial meeting activities begin Th ursday morning with the Board of that words are of limited importance, deeds Trustees meeting (bar members are encouraged to attend). A half day’s matter. It refl ect a trust in the reader that worth of CLE begins at 1 p.m. Tours of the James F. Battin Courthouse moralizing is disrespectful. When Justice will be available before the president’s reception. Aft erward, Justice O’Connor refl ects on the hired hands Sandra Day O’Connor gives the keynote address at the annual banquet. drunken forays into town to party for a J. Martin Burke, winner of the Jameson award will be honored, as well as few days and engage in the services of the the bar’s 50-year members. Friday carries a full day of CLE and begins with a UM School of Law breakfast and Supreme Court candidates forum. An appellate practice panel will round out the early morning activities. Following a brief intro- Schedule at a glance* duction, the Montana Supreme Court will hear two oral arguments: Kluver, et al. v. PPL, Montana, et al., and State v. Fitzpatrick. Wednesday > 10:00 - Noon: Access to Justice Committee Th e awards luncheon begins at noon on Friday, where the winners will meeting be announced for the Karla Gray Equal Justice Award, Neil Haight Pro > Noon - 3:00: Lunch and joint meeting of Bono Award, and Haswell Writing Award (which features three winners the Equal Justice Task Force, Access to this year). Aft er the luncheon, hot topics CLE begins. Attend the whole Justice Committee and Commission on event and earn 11 CLE (2 ethics/1 SAMI) Self-Represented Litigants Register at www.montanabar.org, or watch for the fl ier in the mail. > 5:00 - 7:00 : Local Bar reception at Zoo Montana. Zoo visits begin at 4 p.m.

Page 16 Cover Story | Annual Meeting 2012 xemplifi es O’Connor’s time on the Court passions for things to be passionate about. Bio: Sandra Day O’Connor was born in El Paso, Texas, You cannot survive on a ranch, or in law, March 26, 1930. She married John Jay O’Connor III in 1952 without having a rich passion for the task. and has three sons: Scott, Brian, and Jay. She received her B.A. You cannot aff ord cheap displays of useless and LL.B. from Stanford. She served as deputy county attorney passion. of San Mateo County, Calif., from 1952–1953 and as a civil- Meticulousness. Well, when you ranch, ian attorney for Quartermaster Market Center, Frankfurt, you have no choice. A frayed cinch, a Germany, from 1954–1957. From 1958–1960, she practiced sloppy brake job, or a moment of inatten- law in Maryvale, Ariz., and served as assistant attorney general tion while moving cattle can yield quick of Arizona from 1965–1969. She was appointed to the Arizona Senate in 1969 horror. In the law, it is the mother’s milk of and was subsequently re-elected to two terms. In 1975 she was elected judge of an ordered system of rules. the Maricopa County Superior Court and served until 1979, when she was ap- Pragmatic. No one needs me to explain pointed to the Arizona Court of Appeals. President Reagan nominated her as an why you have to be pragmatic to run a associate justice of the Supreme Court, and she took her seat Sept. 25, 1981. Justice ranch. We sometimes have to be reminded, O’Connor retired from the Court on Jan. 31, 2006. but always get there eventually, that the law — Info from http://www.supremecourt.gov must similarly be pragmatic. But, what of this “siding with the liberal local prostitutes, the narrative ends at that. something like this, which I found on the minority on social issues.” Th is is what No moralizing that “well, it was a diff erent internet: they say. I understand that some suggest time” or “of course, we looked down on “Known for her dispassionate and that this is the result of her being the fi rst this victimization of the women involved.” meticulously researched opinions, she woman on the high court. Let me advance Not a pedantic whisper. proved to be a moderate and pragmatic my view, based wholly on wild specula- When a cowboy quit because his skills conservative who sometimes sided with tion. I advance the unproven and unprov- were questioned in a very minor way, her the court’s liberal minority on social able proposition that even this so called dad asked him back and promised it would issues (e.g., abortion rights). O’Connor “liberal” streak is merely the ranch coming never happen again. Th ere was no rummy retired from the court in 2006.” Read out in Justice O’Connor. Ranchers, gener- handwringing over who had the legal right more: http://www.answers.com/topic/ ally, mind their own business, and expect as employer and who was the employee. sandra-day-o-connor#ixzz1xoMcUutd you to do the same. Th ey may hold dear all We learned what happened. We could Let’s look at three things fi rst. sorts of prejudices and judgements about draw our own conclusions. Dispassionate, meticulous and pragmatic. their neighbors, but they are very slow to She was not pampered or babied. She You cannot survive on a ranch without all letting these personal views translate into was not told she was special. If she wanted three. Justice O’Connor describes how her a government taking action, or license to to be special, she better get to work and do father took her to a struggling calf that had treat their neighbors with disrespect. Not a something special. to be shot because it had been wounded by liberal streak, but a libertarian streak if you Th is ranch girl, we know, made it to predators. She describes how they killed will. the Supreme Court and the commentators rabbits because six rabbits could eat as In any event, come down and see tried to untangle her politics, scholarship much as a single cow. But, care must be Justice O’Connor. I am not sure she agrees, and judicial temperament. used when using the adjective dispassion- but I am prepared to say she is the fi rst Th ese commentators would say ate. On a ranch you learn to ration your Montanan on the Supreme Court.

Thursday > 5:00: President’s Reception (At the James F. > 9:30 : Arguments in civil case: DA 11-0681, > 8:30 - Noon: Board of Trustees meeting. Battin Courthouse.) Kluver, et al. v. PPL,Montana, et al. (Bar members are invited to attend.) > 6:30: Banquet | Keynote Address (At the > 10:30: Arguments in criminal case: DA 11- > 10:00 : Registration desk opens Crowne Plaza) 0559, State v. Fitzpatrick > Montana Justice Foundation > Noon - 1:30: Awards luncheon/Business 11:00 - 5:00: Friday meeting meeting > 7:00 - 8:00 : UM Law School breakfast > New Lawyers Section > 1:30 - 5:10: Hot Topics CLE (3.5 CLE/1 Noon - 1:00: > 7:30 - 8:00: Supreme Court candidates Ethics) Luncheon meeting forum > Hot Topics CLE (3.5 CLE/1 > 5:10: Annual meeting adjourns 1:00 - 5:00: > 7:30: Registration desk opens Ethics) > 5:30: Paralegal Section dinner > 8:00 - 9:00: Appellate Practice Panel > 4:30: Resolutions Committee meeting > Introduction of Supreme Court 9:00 - 9:30: *Times may change slightly before date of event > 4:30: Tour of James F. Battin Courthouse oral arguments

Page 17 State Bar seeks volunteers for committees Member participation in the organi- to renew, a member resigns before their zation and management of the State Bar • Access to Justice (Bar Committee) term is up or there is a need to add ad- of Montana is essential to its success as a • Lawyer Referral & Information Service ditional members. If you would like to professional association. Th e most eff ec- • CLE Institute be added to a waiting list for Dispute tive way lawyers and legal assistants can • Elderly Assistance Resolution, Ethics, Lawyers’ Fund for participate is through volunteer service • Lawyers Helping Lawyers Client Protection, Professionalism, or on the many committees that compose • Fee Arbitration Resolutions, please let Jill Diveley know. the Bar. • Judicial Relations Committees meet two to six times • Technology If you are interested in serving on a per year, usually in Helena, although • Law-Related Education committee, please email Jill Diveley at many meetings are via conference call. [email protected] by August 24. Expenses associated with attending meet- Some committees’ members do You can also mail in your request to State ings are reimbursed by the State Bar. not have any expiration dates this year Bar of Montana, C/O Jill Diveley, P.O. Every eff ort is made to assign volun- or the committee currently has an Box 577, Helena, MT 59624. teers according to their choices. adequate number of members at pres- We are looking for volunteers to serve ent time. Openings occur when a term on the following committees: expires and the member does not wish Montana Law Review sets schedule for 2012 Honorable James R. Browning Symposium “Th e State of the Republican Form of Government in the States”

> WHEN: Thursday, Sept. 27, 6 – 7 p.m.; adjudication (in particular, what special CLE credits: Th is course provides CLE Friday, Sept. 28, 8:45 a.m. – 5:45 pm issues arise in judicial campaigns), as well credits. >WHERE: University Center Ballroom, The as an additional panel focused on the Th e program is free. No University of Montana, Missoula, Montana Attendance: Montana experience. registration is required. Th e Montana Law Review will publish For more information, please contact About the symposium: Th is bien- a symposium issue of the Law Review the Montana Law Review staff at nial symposium will focus on the distinct next winter. [email protected]. place of state law and politics in the changing landscape of election law. Montana is a focal point of debate over these issues this year as it hosts its independent redistricting commission, Fall 2012 supreme court justice elections, a closely fought U.S. Senate race, and litigation of its campaign contribution and disclosure laws, all in the aft ermath of the Supreme On-Campus Interview 2nd & 3rd Court’s invalidation of Montana’s centu- ry-old Corrupt Practices Act. In short, Interview year students for there is no more opportune time or place intern, law clerk, & to consider the changing landscape of election law in the States than Montana Weekend associate positions in 2012. Harvard Law School Professor Lawrence Lessig will provide the keynote FRIDAY‡SATURDAY address on Th ursday evening. There will be four panels on Friday. Each panel cor- responds to general issues of legislation September 21-22 (what state campaign laws are preferable Interviews can also be scheduled at your convenience or permissible), enforcement (how states email [email protected] or call 406-243-5598 should administer campaign laws), and Case Summaries | U.S. Supreme Court; Montana Supreme Court U.S. Supreme Court Constitutional case summaries

Th e U.S. Supreme Court decided many Interestingly, Justice Roberts joined this observation: “Montana’s arguments important constitutional cases this spring, with the four dissenters in rejecting the in support of the judgment below either including the following:1 government’s principal defense of the were already rejected in Citizens United, individual mandate under the Commerce or fail to meaningfully distinguish that In National Federation of Independent Clause. Th e Court interpreted the second case.” Business v. Sibelius, 132 S.Ct. 2566 challenged provision of the Act, which (June 28, 2012)(5-4), the Court upheld required states to substantially expand In Miller v. Alabama, 132 S.Ct. 2455 the challenged provisions of the Patient their Medicaid coverage or else forfeit all (June 25, 2012)(5-4), the Court held that Protection and Aff ordable Care Act. Th e their federal Medicaid funding, to mean juveniles convicted of murder cannot be opinion’s unexpected author, Chief Justice that states that did not agree to expand subject to a mandatory sentence of life Roberts, held that the Act’s provision their Medicaid coverage would only lose imprisonment without the possibility of that requires virtually all Americans the additional federal funds allocated for parole. Th e Court held the sentencing to either purchase health insurance that expansion. judge cannot be barred from taking or pay a penalty was a constitutional the defendant’s youthful age, and other exercise of congressional power under In American Tradition Partnership, relevant circumstances, into consideration the Taxing Clause. Th e Court reasoned Inc. v. Bullock, 132 S.Ct. 2490 (June when imposing punishment. Th e majority that individuals who choose not to 25, 2012)(5-4), the Court summarily also made the following observation: “[G] purchase health insurance are required reversed a decision by the Montana iven all we have said . . . about children’s to pay a “shared responsibility payment” Supreme Court upholding Mont. Code diminished culpability and heightened as part of their federal income taxes. Ann. §13-35-227 (1) (2001), the Montana capacity for change, we think appropriate state law barring corporations from using occasions for sentencing juveniles to 1 These summaries are excerpted from the ACLU their general treasury funds to support this harshest possible penalty will be 2011 Supreme Court Term Civil Liberties Summary, or oppose a candidate for offi ce. Th e uncommon.” which discusses many more important civil liber- Court’s per curiam opinion was only two ties opinions, and can be found at http://www. paragraphs long and concluded with aclu.org/fi les/assets/fi nal_summ-11_mem_2.pdf. U.S., Page 20 Montana Supreme Court In Brief (June - July)

Blodgett v. Justice Court, Missoula County, 2012 MT 134 (fi led June 26, 2012) (5-0) Issue: Did retired district court judge have authority to act as substitute justice of the peace (JP) and preside over a criminal jury trial? Short Answer: No. Facts: Missoula County JP asked ¶10. Authority to act as substitute JP receiving waiver of training; all of these retired district court judge to preside over arises only from strict compliance with were then to be fi led. Elected JP must at- criminal jury trial while she was presiding MCA ¶ 3-10-231. Th reshold requirement tempt to call in another elected JP or city over another trial. Defendant’s objection is that elected JP must be disqualifi ed, judge before going to substitute list; here, overruled; jury found her guilty. sick, disabled, or absent; not met here. ¶ did not ask city judge. Procedural Posture & Holding: Writ 16. Moreover, procedural requirements Although retired judge was quali- of supervisory control granted. Jury trial not met. Acting JP must be selected fi ed by training and experience to act void ab initio; remanded. from list provided by elected JP; elected as substitute JP, he lacked jurisdiction Reasoning: JP agreed supervisory JP must obtain waiver of JP training for in this instance because procedures not control was appropriate. Court concludes potential substitutes if they have not followed. Justice Court “proceeding under a mis- received JP training; each person on list take of law and causing a gross injustice.” must subscribe to oath of offi ce aft er MONTANA, Page 20

www.montanabar.org Page 19 the third empowered police in Arizona Court noted that this provision may be U.S. to make warrantless arrests based on applied unconstitutionally if it leads to from page 19 probable cause to believe a person has racial profi ling or leads to unreasonably committed a “public off ense” that makes prolonged detention. him or her removable from the United Arizona v. U.S., In 132 S.Ct. 2492 (June States. Th e Court held that the most In United States v. Alvarez, 132 S.Ct. 25, 2012)(5-3), the Court struck down controversial portion of the law, the so- 2537 (June 28, 2012)(6-3), the Court three of the four provisions of Arizona’s called “show-me-your-papers” provision, struck down the Stolen Valor Act, a immigration law, S.B. 1070, which had was not unconstitutional on its face. federal statute that makes it a crime to been challenged on federal preemption Th at provision directs police in Arizona lie about receiving a military honor. grounds. One invalidated provision made to demand immigration papers from Th e Court rejected the government’s it a state law crime for aliens to seek or anyone who they have lawfully stopped if contention that false statements of fact hold a job without authorization; a second there is reason to believe that the person are categorically unprotected by the First made it a crime for aliens to fail to comply stopped is in the country illegally. Th e Amendment. with federal registration requirements;

Montana from page 19 Davis v. Hall, 2012 MT 125 (fi led June 12, 2012) (5-0, with special concurrence by Justice Morris) Issue: (1) Whether easement was created from two documents read together, one of which references the other; and (2) whether express easement may be appurtenant to dominant tenement that is not contiguous to servient tenement. Short Answer: (1) Yes, and (2) yes. Facts: Plaintiff s own land separated and servient tenements ascertainable with Mont. 289, 302, 66 P.2d 792, 795 (1937)). from Defendants’ land by parcel owned reasonable certainty from both docu- Court adopts rule that “an easement may by state of Montana. Originally all land ments. Use and necessity of easement also be appurtenant to noncontiguous prop- owned by same owner, who recorded ascertainable with reasonable certainty erty if both tenements are clearly defi ned Declaration of Easements, which refers to from documents. Th erefore, adequately and it was the parties’ intent that it be certifi cate of survey creating road. Road described. Distinguishes and explains appurtenant.” ¶ 32 (quoting Verzeano v. crosses Defendants’ property and then Blazer v. Wall, 2008 Carpenter, 815 P.2d 1275, 1278 (Or. App. state property before reaching Plaintiff s’ MT 145. (2nd issue) Defendants 1991)). property. Defendants placed locked gate argue that Plaintiff s do not have the right Plaintiff s must separately estab- across road, blocking Plaintiff s’ access. to cross the state property that separates lish their right to cross state property, Procedural Posture & Holding: the dominant and servient estates. When but whether they have a right to cross Summary judgment granted to Plaintiff s; an easement is implied, dominant and state property does not aff ect the valid- affi rmed. servient estates must be single tract of ity of their easement over Defendants’ Reasoning: (1st issue) COS alone did land or contiguous tracts of land at time property. not create easement, but did in conjunc- of severance. ¶ 29 (citing several cases). tion with Declaration of Easements. Both But where party has an express easement, documents recorded; therefore, construc- contiguity not required. ¶ 30 (discussing tive notice to all. Identities of dominant N.W. Improvement Co. v. Lowry, 104 Kaufman Bros. v. Home Value Stores, Inc., 2012 MT 121 (fi led June 5, 2012) (5-0) Issue: Did contract governing parties’ relationship limit remedies to either suing for damages or terminating agreement and keeping payments made to date as liquidated damages? Short Answer: Yes. Facts: Plaintiff partnership owned under contract. When not paid within payments already made as liquidated commercial building in Billings. 30 days, Plaintiff obtained Defendant’s damages, it lost the right to sue for breach Defendant entered into contract for quit claim deed from escrow, recorded of contract. deed with Plaintiff . Defendant stopped it and retook possession of the property, Procedural Posture & Holding: making monthly payments and failed and sold it. Th en Plaintiff fi led suit for Summary judgment granted to to pay property taxes. Plaintiff issued damages from Defendant’s breach of Defendants; affi rmed. Reasoning: Plain notice of default, giving Defendant 30 contract. Defendant argued that when days to cure. When Defendant failed to Plaintiff elected to accelerate amount MONTANA, Page 21 cure, Plaintiff accelerated balance due due and terminate contract, and retain

Page 20 August 2012 Montana (2) they are inconsistent with each other; property. Th ese remedies are inconsistent. from page 20 and (3) the party chooses one of them. ¶ ¶ 17. Plaintiff argued it was entitled to 15. Election occurs when party pursues seek damages for waste to the property, language of the contract said seller could a remedy to a “fi nal conclusion.” ¶ 16. but contract stated that liquidated damages do one or the other. “Or” means one or the Plaintiff pursued its election to a final con- would compensate seller “for breach of this other, not both. Plaintiff argued cumula- clusion, i.e., repossession and resale of the agreement.” tive remedies were allowed. Court applied property. Sellers have option of affi rming ¶ 19. Th us, Plaintiff has been fully three- part test to determine if election of contract and suing for balance of purchase compensated, and is barred from seeking remedies doctrine bars additional relief: price, or terminating contract, keeping damages for breach of contract. (1) two or more remedies are available; money already paid, and repossessing the Mountain West Bank v. Glacier Kitchens, Inc., 2012 MT 132 (fi led June 26, 2012) (4-1; Justice Rice dissenting) Issue: Does court obtain personal jurisdiction over defendants when they are not served in accordance with Rule 4, but have actual notice of the lawsuit? Short Answer: No. Court had no personal jurisdiction over Defendant; default judgment void ab initio. because motion duplicative, and individual and the judgment must be valid. Because Facts: Individual fi led suit against Defendant not an attorney. Court did not the default judgments are void ab initio, bank; bank fi led answer and counterclaim rule. Seven months later, through counsel, the doctrine of res judicata does not ap- for judicial foreclosure. Banks’ claims Defendants moved to set aside default ply. Judgments are void because service were brought against the individual as well judgments under M.R. Civ. P. 60(b) not properly made. Rule 4 requirements as a trust, a corporation, and an estate. (2009). Bank objected because motion must be strictly followed; actual notice is Bank served individual’s daughter, who duplicative. Deemed denied aft er 60 days. not a substitute for valid service. Rule has has no relationship with other defen- Appeal followed. specifi c requirements for service on cor- dants. Individual answered counterclaim; Procedural Posture & Holding: Denial porations, trusts, and estates, which were other three Defendants did not appear. of Defendant’s motion to set aside default not followed. Daughter was not an offi cer, On bank’s motion, court entered default judgment reversed and remanded. director, manager, etc. of the corporation, judgments against three non-appearing Reasoning: Default judgments are so it was not properly served. Daughter Defendants. Individual Defendant moved disfavored. Bank’s argument that the Rule was not a trustee of the trust, so it was to set aside defaults; bank objected to 60(b) motion was not timely is presented not properly served. Daughter was not a lack of evidence that daughter did not for the fi rst time on appeal; Court there- personal representative of the estate, so it have authority to accept service, and to fore declines to address it. Bank then was not properly served. No service results individual Defendant acting as attorney. argues motion to set aside default judg- in no personal jurisdiction, which means Court did not rule. Five months later, ment was res judicata because it was the default judgments were void and should individual Defendant moved again, citing subject of three motions. But res judicata have been set aside. M.R. Civ. P. 4D (2009). Bank objected requires fi nal judgment on the merits, Sheila Callahan & Friends, Inc. v. State of Montana Dept. of Labor & Industry, 2012 MT 133 (fi led June 26, 2012) (5-0, with concurring opinion by Justice Baker) Issue: Is employer liable for pro rata share of unemployment benefi ts paid to former employee when employee voluntarily terminated her employment with that employer? Short Answer: No. Facts: Employee entered into one-year offi cer affi rmed Department’s decision. completed calendar quarters immediately contract with employer SC&F. Employer SC&F appealed to Board of Labor Appeals, preceding the fi rst day of the individual’s off ered new one- year contract prior to which conducted a hearing and affi rmed benefi t year.” MCA § 39-51-1214(1); MCA expiration of fi rst term, with slightly diff er- Department’s decision. SC&F sought § 39-51-201(2)(a). SC&F agrees it is a base ent terms. Employee declined, saying she judicial review from district court, which period employer. If SC&F failed to off er wanted to help her mother through some reversed board’s decision. Department employee opportunity to continue the health problems. Stated on exit interview appealed. same work, then she is considered laid off , form that she “quit.” Was then hired by Procedural Posture & Holding: and SC&F must pay for part of her unem- a diff erent employer, and laid off shortly Appeal of judicial review of administra- ployment benefi ts. But where employee thereaft er. Filed for unemployment ben- tive decision; affi rmed reversal of board refused to even consider a new contract, efi ts. Department determined that SC&F’s decision. regardless of the terms, she voluntarily account as chargeable for pro rata portion Reasoning: According to Montana terminated. of benefi ts paid to employee. SC&F asked statute, unemployment benefi ts are paid for redetermination, stating employee had to claimants on a pro rata share of their MONTANA, Page 22 left voluntarily. Administrative hearing “base period,” which is “fi rst 4 of the last 5

www.montanabar.org Page 21 Montana from page 21 BNSF Railway Co. v. Cringle, 2012 MT 143 (July 6, 2012) (7-0 in judgment; 2 concurring opinions) Issue: Whether BNSF counsel’s misplacement of the mailed notice of a Human Rights Commission hearing offi cer’s decision was “good cause” suffi cient to excuse its failure to fi le an appeal within 14 days. Short Answer: No.

Facts: Cringle sued BNSF for Commission. Cringle appealed. Supreme part. Alternatively, district court found discrimination. Hearing offi cer entered Court reversed and ordered judgment excusable neglect. summary judgment for claimant, and entered for claimant. “[B]ecause § 49- Applying de novo review, Supreme mailed notice of decision to parties. 2-505(3)(c), MCA, is a statutory time Court found that 14-day appeal deadline Notice misplaced at BNSF counsel’s prescription that provides an infl exible evidences legislative intent to expedite offi ce, and not found until 19 days had rule of fi nality, ‘good cause’ for excusing discrimination claims. ¶ 22. Th erefore passed. BNSF then fi led appeal and noncompliance with the statute requires declines to decide whether equitable sought to be excused for failure to timely a showing of circumstances beyond the tolling doctrine should apply, holding appeal to Commission. party’s reasonable control that prevented instead that counsel’s failure to fi nd the Procedural Posture & Holding: In the party from timely fi ling its notice of notice “did not constitute suffi cient cause previous appeal, Court held that 14-day appeal.” 2012 MT 143, ¶ 15. for relief from its untimely notice of fi lling deadline is not jurisdictional, Reasoning: District Court found appeal.” ¶ 23. All seven justices con- opening the door to excuse for good good cause because (1) 14 days very curred in the judgment; Justices Morris cause. BNSF v. Cringle, 2010 MT 290, ¶¶ short, thereby implicating due process and Nelson wrote separate concurring 18, 20 (interpreting MCA § 49-2-505). rights; (2) claimant will be awarded at- opinions. On remand, District Court found BNSF torneys’ fees if ultimately successful; and had shown good cause and remanded to (3) no evidence of bad faith on BNSF’s Redding v. Montana First Jud. Dist., 2012 MT 144A (July 6, 2012) (5-0) Issue: (1) Whether writ of supervisory control was warranted to reverse district court decision that Plaintiff ’s investment in a Ponzi scheme was not a security under Montana securities law, and if so, (2) whether investment was a Montana security. Short Answer: Supervisory control was warranted, and investment was a Montana security.

Facts: 76-year-old widow with high Supervisory control granted; reversed. entrepreneurial or managerial eff orts of school education sold ranch for $3 mil- Reasoning: (1st issue – supervisory others.” ¶ 25. First holds that common lion in 2004. Accountant advised using control) Supervisory control appropriate venture can be established through hori- 1031 exchanges and investing in com- because lower court holding would cause zontal, broad vertical, or narrow vertical mercial real estate to avoid tax liability signifi cant injustice for which appeal is commonality; fi nds common venture and receive income. Investment, a Ponzi inadequate remedy. here under all three. Test for second scheme, went bankrupt in 2008. Plaintiff (2nd issue – whether security was prong is whether investor is able to exer- sued accountant, accounting fi rm, and covered by Montana Securities Act) Four cise meaningful control over investment, others alleging tort and contract claims. statutory criteria determine whether regardless of written agreement. Plaintiff Procedural Posture & Holding: investment is security; here, issue is depended on defendant’s eff orts to gener- District court held investments were whether this was common venture, and ate profi t; therefore second prong met. not securities under Montana law. whether it was “derived through the Medical Marijuana Growers Assoc. v. Corrigan, 2012 MT 146 (July 6, 2012) (5-0 in judgment, with concurrence by Justice Nelson) Issues: Whether 2009 Medical Marijuana Act (MMA) authorizes caregivers to exchange marijuana in order to supply qualifi ed patients, or to cultivate marijuana for other caregivers to provide their patients. Short Answer: No. Facts: MMA authorizes one “caregiv- Plaintiff s sought declaratory judgment appeal was not moot, even though 2011 er” for each qualifi ed patient. Caregiver that MMA allows caregivers to transport statute expressly prohibits transactions must register with DPHHS and sign a or deliver marijuana to other caregivers, between caregivers, as charges may be statement agreeing to provide marijuana and to cultivate marijuana as agent or fi led under 2009 law for up to five years. only to patients who have named that contractor for another caregiver. Th en held that plain language of statute person as their caregiver. Statute restricts Procedural Posture & Holding: is clear and unambiguous, and autho- cultivation and use of marijuana by care- Summary judgment granted for defen- rizes caregivers to provide marijuana to givers; those who comply are protected dant; Supreme Court affi rmed. patients only. Declines to read additional against arrest and prosecution. MCA § Reasoning: Court fi rst found that provisions into statute. 50-46-201. MONTANA, Page 23

Page 22 August 2012 Montana from page 22

BNSF Railway Co. v. Feit, 2012 MT 147 (July 6, 2012) (4-1) Issue: Certifi ed question from U.S. District Court: Is obesity that is not a symptom of a physiological condition a physical or mental impair- ment under the Montana Human Rights Act (MHRA)? Short Answer: Yes. Facts: Respondent Feit sued BNSF Justice Morris dissented. Justice Morris dissents on grounds for discrimination when BNSF refused Reasoning: Court has not previously that federal defi nition of impairment re- to hire him as a conductor because of his construed “impairment” under MHRA. quires a physiological condition be pres- obesity. Looks to federal law, which recently ent before an impairment can be found. Procedural Posture & Holding: changed. Holds that obesity that is not Obesity that does not occur secondarily Department entered judgment for Feit the symptom of an physiological disorder to a physiological condition cannot be an and Human Rights Commission af- may constitute an impairment under the impairment. fi rmed. BNSF sought judicial review from MHRA if the person’s weight is outside federal court, which certifi ed question to the normal range and aff ects one more Supreme Court. Four justices in majority; body systems.

Robison v. Montana Dept. of Revenue, 2012 MT 145 (July 6, 2012) (5-0) Issue: Whether oil rig employee’s travel from residence to oil rig is deductible business travel expense. Short Answer: No. Facts: Robison worked 7-days-on, appealed to STAB, which reversed. DOR for indefi nite time away from personal 7-days-off schedule at oil rig. Drove from sought judicial review from district court, residence, tax home shift s to the new lo- home in Billings to company camp for which reversed STAB and reinstated cation, and travel expenses form personal the week he worked, and back to Billings hearing examiner’s decision. Affi rmed. residence to tax home not deductible. at end of week. Claimed $78,812 in busi- Reasoning: Travel to a temporary Here, Robison’s employment was ness travel expenses for 2005-2008. job – as opposed to an indefi nite one – is indefi nite, not temporary. He was Procedural Posture & Holding: DOR deductible. Employment is temporary never told how long it would last, and audit determined Robison’s employment when end is foreseeable within short in fact it lasted more than three years. was indefi nite, making his tax home the period. Under federal law, employment Additionally, tax home shift ed to area area of the oil rig. Expenses therefore is generally temporary when it lasts less of oil rig because employment was nondeductible personal commuting ex- than one year. When termination is inde- indefi nite. penses. Robison requested informal DOR terminate, employment is indefi nite, and review of initial audit, then appealed to business travel expenses are not deduct- agency. Hearing offi cer affi rmed. Robison ible. Moreover, when taxpayer works

Rooney v. City of Cut Bank, 2012 MT 149 (July 10, 2012) (5-0) Issue: Whether district court’s affi rmance of police commission’s fi nding that officer’s fi ring was supported by substantial evidence pre- cluded claim for wrongful discharge. Short Answer: Yes. Facts: Plaintiff worked as city police to dismiss the wrongful discharge claim. been raised but were not are also barred. offi cer for eight years. Was observed Bench trial on wrongful discharge claim; ¶ 21. District court found that substantial sleeping in patrol car while on duty. Aft er judgment for city. Both parties appealed. evidence supported Plaintiff ’s termina- investigation, was fi red by mayor. Supreme Court affi rms but on diff er- tion, thereby deciding facts determinative Procedural Posture & Holding: ent grounds, holding that lower court’s of whether his termination was for “good Plaintiff appealed termination to po- affi rmance of commission’s decision cause” under the WDEA. Moreover, lice commission, which held hearing. bars wrongful discharge claim under res Plaintiff did not appeal District Court’s Although commission would have judicata and collateral estoppel. affi rmance of commission’s decision. preferred incremental discipline, it found Reasoning: Issue and claim preclu- substantial evidence to support fi ring. sion bar re-litigating determinative facts Plaintiff fi led wrongful discharge action “actually or necessarily decided in a prior # and, alternatively, judicial review of com- action, even if they were decided under a mission’s decision. District court affi rmed diff erent legal theory.” ¶ 17. Additionally, commission, and denied city’s motion legal theories or facts that could have Summaries courtesy of Beth Brennan.

www.montanabar.org Page 23 To plea or not to plea:

Th at is the question1

By Daniel Donovan and John Rhodes2 criminal justice system. Correspondingly, “it is the responsibil- ity of defense counsel to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statu- I. INTRODUCTION tory and constitutional rights that a guilty plea would forego.”6 Is it “nobler in the mind to suff er” the punishment that Two recent United States Supreme Court cases recognize this comes with a guilty plea “or to take arms against a sea or trou- guilty plea laden reality and establish that the accused can be bles” by taking the case to trial?3 Th is is the conundrum faced denied his Sixth Amendmenbt right to eff ective assistance of by every citizen accused of crime. Defense counsel advising counsel if such advice is unsound. their clients face this same dilemma. As the length of sentences increase, so does the risk of going to trial. II. MISSOURI V. FRYE AND LAFLER V. COOPER “Proponents of plea bargaining argue that it is good for On March 21, 2012, the Supreme Court issued two decisions defendants. Th e defendant, so the argument goes, can always cementing the rule that the Sixth Amendment right to eff ective choose not to plea and instead go to trial. If a defendant chooses assistance of counsel applies to representation during the plea to accept a plea bargain, then the deal must be better for the bargaining process.7 If defense counsel’s representation relating 4 defendant than going to trial.” But how do the defendant to the plea or trial decision is defi cient, the accused may have a and counsel know that the result of a plea agreement will be remedy in post-conviction proceedings.8 better than the result of a trial? Oft entimes it is a known fact. In Missouri v, Frye, the Court held that because defense Sometimes it is a judgment call, more art than science. counsel failed to inform the defendant of a plea off er, defense If the accused pleads guilty, he will never know the result of counsel “did not render the eff ective assistance the Constitution the trial. A guilty plea precludes acquittal. Conversely, if the ac- requires” where the result was a 3-year felony prison sentence cused goes to trial and loses, he will oft en realize the mistake he without a plea agreement rather than a 90 day misdemeanor has made when he suff ers the attendant consequence of greater sentence had the off er been accepted.9 punishment. Defendants plead guilty for many reasons, includ- Frye was charged with driving with a revoked license.10 ing because plea agreements can be bargained-for exchanges, Because he had been convicted of the same off ense three times in which the defendant receives consideration in the form of before, he was charged, under Missouri law, with a felony car- 5 sentencing concessions. Other times, plea agreements do not rying a maximum 4year prison term.11 Th e prosecutor sent off er much of a bargain for a defendant but the belief remains Frye’s counsel a letter, off ering two possible plea bargains, that it is better than going to trial. including an off er to reduce the charge to a misdemeanor and Defense counsel must advise their clients whether to plead to recommend, with a guilty plea, a 9-day jail sentence.12 Th e guilty or proceed to trial. Plea bargaining dominates the plea off ers expired without defense counsel conveying the off ers to Frye.13 Frye subsequently pleaded guilty without a plea agree- ment and was sentenced to three years in prison.14 1 Derived from William Shakespeare, Hamlet. Act III, Sc. I, Line 56 (“To be, or not to be: that is the question.”). 2 Donovan has practiced law in Great Falls, Montana since 1976, including 6 Libretti v. United States, 516 U.S. 29, 50 (1995). service as an Assistant Federal Defender in the District of Montana from 1993 7 Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399 (March 21, 2012), and Lafl er v. to 2000. Donovan was named 2009 Criminal Defense Lawyer of the Year by Cooper, __ U.S. __, 132 S.Ct. 1376 (March 21, 2012). the Montana Association of Criminal Defense Lawyers. Rhodes has served as an Assistant Federal Defender for the District of Montana since 1998. In 8 Id. 2002, he served in Washington D.C. as Special Counsel to the United States 9 132 S.Ct. at 1408. Sentencing Commission. Most of their clients plead guilty. 10 Id. at 1404. 3 William Shakespeare, Hamlet. Act III, Sc. I, Line 56. 11 Id. 4 Orin Bar-Gill & Omni Ben-Shahar, The Prisoner’s (Plea Bargain) Dilemma, Regulation, Spring 2010 at 42. 12 Id. 5 Mabry v. Johnson, 467 U.S. 504, 508 (1984), abrogated in part on other 13 Id. grounds, Puckett v. United States, 556 U.S. 129 (2009). 14 Id.

Page 24 August 2012 Seeking post-conviction relief in state court, he alleged his the plea agreement, to vacate only some of the convictions and counsel’s failure to inform him of the earlier plea off ers denied resentence [Lafl er] accordingly, or to leave the convictions and him the eff ective assistance of counsel, and he testifi ed that he sentence from trial undisturbed.”28 would have pleaded guilty to the misdemeanor had he known In Frye and Lafl er, the Court recognized the “simple reality” of the off er.15 Th e Missouri appellate court granted Frye relief.16 in the twenty-fi rst century that plea bargaining has become Th e United States Supreme Court found that the Missouri “central to the administration of the criminal justice system.”29 court correctly concluded that counsel’s failure to inform Frye According to resources cited by the Court, 97% of federal of the written plea off er before it expired fell below an objective convictions and 94% of state convictions are the result of guilty reasonableness standard, but reversed and remanded because pleas.30 Because plea bargaining, not trials, “is the criminal jus- the Missouri court failed to require Frye to show that the plea tice system,” defense counsel “have responsibilities in the plea off er would have been adhered to by the prosecution and ac- bargain process . . . that must be met to render the adequate cepted by the trial court.17 assistance of counsel that the Sixth Amendment requires.”31 In Lafl er v. Cooper, the Court held, although defense And, of course, a major reason to plead guilty is the practical counsel communicated the plea off er to the defendant, because benefi t of a likely reduced sentence. “[O]nly an ignorant, ill- defense counsel erroneously advised the defendant to reject the advised consumer” would pay via a guilty plea the “full” “sticker off er and go to trial, defense counsel did not render eff ective price” of “[t]he expected post-trial sentence.”32 assistance where the result was a sentence 3 1/2 “times more Common sense dictates that defense counsel will be held severe than he likely would have received by pleading guilty.”18 accountable, as in Frye, for failing to communicate a plea off er Lafl er was charged under Michigan law with assault with to his or her client where the result is a longer prison sentence.33 intent to murder and three other off enses.19 Th e prosecution But when will a court, as in Lafl er, second guess defense coun- off ered to dismiss two of the charges and to recommend a sel’s advice to take the case to trial? Th e government conceded 51-to-85 month prison sentence on the other two, in exchange in Lafl er that the advice was ineff ective. But what happens in for a guilty plea.20 In a communication with the court, Lafl er ad- future cases where there is no concession and the soundness of mitted his guilt and expressed a willingness to accept the off er.21 the plea or trial advice is disputed? But he rejected the off er aft er his counsel convinced him that the prosecution would be unable to establish intent to murder III. CASELAW PRIOR TO FRYE AND LAFLER because the victim had been shot below the waist.22 At trial, Prior to Frye and Lafl er, in several federal circuits, defense Lafl er was convicted on all counts and received a mandatory 23 counsel had an ethical, legal, and constitutional obligation to minimum 185-to-360 month prison sentence. assist a defendant in deciding whether to plead guilty or go to In post-conviction proceedings, the Michigan courts re- trial.34 “Where the issue is whether to advise the client to plead jected Lafl er’s claim that his counsel’s advice to reject the plea 24 or not ‘the attorney has the duty to advise the defendant of the constituted ineff ective assistance. Th e federal courts granted available options and possible consequences’ and failure to do Lafl er relief and Michigan sought review in the United States 25 so constitutes ineff ective assistance of counsel. . . . [A]n attor- Supreme Court. ney’s incompetent advice resulting in the defendant’s rejection Signifi cantly, both sides agreed that the advice to go to trial of a plea off er constitute[s] ineff ective assistance of counsel.”35 was bad: “all parties agree the performance of [defense counsel] Similar to the Supreme Court in Lafl er, the Ninth Circuit was defi cient when he advised [the defendant] to reject the plea in United States v. Blaylock found that had the defendant off er on the grounds he could not be convicted at trial,”26 and “pleaded guilty, his sentence would certainly have been much the government “conceded” that the choice to go to trial rather than accept the plea deal “was the result of ineff ective assistance during the plea negotiation process.”27 Th e Supreme Court held “the correct remedy . . . is to order the State to reoff er the plea 28 Id. at 1391. agreement. Presuming [Lafl er] accepts the off er, the state trial court can then exercise its discretion in determining whether 29 Lafl er, 132 S.Ct. at 1388; Frye, 132 S.Ct. at 1407. to vacate the convictions and resentence [Lafl er] pursuant to 30 Id. 31 Frye, 132 S.Ct. at 1407 (emphasis by the Court). 32 Lafl er, 132 S.Ct. at 1387 (quoting Stephanos Bibas, Regulating the Plea- 15 Id. at 1405. Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. 16 Id. Rev. 1117, 1138 (2011)). 17 Id. at 1410-1411. 33 As recognized by the Ninth Circuit, “[i]f an attorney’s incompetent advice 18 132 S.Ct. at 1390-1391. regarding a plea bargain falls below reasonable standards of professional conduct, a fortiori, failure even to inform defendant of the plea off er does as 19 Id. at 1383. well.” United States v. Blaylock, 20 F.3d 1458, 1465-1466 (9th Cir. 1994). 20 Id. 34 Blaylock, 20 F.3d at 1465. Prior to Blaylock, three other circuits (the First, 21 Id. Third and Seventh) held that failure of counsel to communicate a plea off er to the accused was ineff ective assistance of counsel. Blaylock, 20 F.3d at 1465. 22 Id. The Fifth Circuit had held that failure of counsel to advise the accused of the 23 Id. possible options and consequences of a guilty plea versus trial constitutes 24 Id. ineff ective assistance of counsel. Id. The Sixth Circuit had held that incompe- tence advice resulting in the defendant’s rejection of a plea off er constituted 25 Id. at 1383-1384. ineff ective assistance of counsel. Id. The Ninth Circuit reviews those decisions 26 Id. at 1384. in Blaylock. Id. 27 Id. at 1386. 35 Id. (citations omitted). less severe.”36 As in Frye, Blaylock’s counsel did not inform him defense counsel, aft er appropriate investigation, should advise of the government’s plea off er.37 Blaylock was convicted at trial the defendant of the alternatives available and address consid- and then sentenced to 235 months in prison.38 Had he accepted erations deemed important by defense counsel or the defendant the plea off er, Blaylock “likely would have received at least a in reaching a decision. Defense counsel should not recommend two-point reduction for acceptance of responsibility and thus a to a defendant acceptance of a plea unless appropriate investi- substantially lower sentence.”39 Furthermore, if he had accepted gation and study of the case has been completed.”48 Indeed, the plea off er, Blaylock maintained the government would not “[u]nder no circumstances should defense counsel recommend have fi led enhanced penalty charges.40 to a defendant acceptance of a plea unless appropriate investi- A defendant must be given “the opportunity to consider gation and study of the case has been completed, including an intelligently his plea [options] and to make an informed deci- analysis of controlling law and the evidence likely to be intro- sion about it.”41 If the accused is given bad advice or no advice duced at trial.”49 Defense counsel has the duty to investigate from his lawyer, he will be deprived “of the right to make a regardless of the defendant’s “stated desire to plead guilty.”50 well-informed decision about whether to accept a favorable plea Th e ABA Standards make clear that the decision to plead agreement off er.”42 guilty or go to trial belongs to the defendant. “Defense counsel “[T]he remedy for counsel’s ineff ective assistance should put should conclude a plea agreement only with the consent of the defendant back in the position he would have been if the the defendant, and should ensure that the decision whether to Sixth Amendment violation had not occurred.”43 Where a de- enter a plea of guilty or nolo contendere is ultimately made by fendant was deprived of the opportunity to accept a plea off er, the defendant.”51 Defense counsel must not make the plea or “[r]equiring the government to reinstate its original plea off er is trial decision for the defendant. Th e decision whether to plead constitutionally permissible.”44 guilty or accept a plea agreement is “ultimately for the accused” Even without a plea agreement, it may be advantageous to and is “to be made by the accused aft er full consultation with plead guilty via an open guilty plea. In a Th ird Circuit case, counsel.”52 United States v. Booth, the defendant alleged and the court agreed that his trial counsel was ineff ective where trial counsel, V. RECOMMEND PLEA OR TRIAL? IN FEDERAL “aware that the evidence against Booth was overwhelming and COURT, THE ADVICE IS USUALLY THE SAME. that Booth did not want to cooperate with the Government, did not inform Booth that he could have entered an open guilty Harsh punishment and lengthy imprisonment hallmark plea to both counts of the indictment, likely entitling him to a the federal criminal justice system. Guilty pleas are endemic. three-level reduction for acceptance of responsibility [under the In the most recent annual data, 96.9 % of federal cases were 53 United States Sentencing Guidelines].”45 resolved by guilty pleas and only 3.1 % by trial. In the District of Montana, a higher percentage of cases proceeded to trial – all IV. THE ABA STANDARDS of 5.1 %.54 Several reasons explain why guilty pleas rule supreme. For Th e American Bar Association Standards for Criminal instance, federal drug distribution sentences contain a series of 46 Justice direct, as Frye now mandates, that defense coun- gradated mandatory minimum sentences tied to drug quan- sel “should promptly communicate and explain to the de- tity.55 And to trigger the drug quantity, and thus establish the 47 fendant all plea off ers made by the prosecuting attorney.” mandatory minimum, the government can charge a defendant Furthermore, “[t]o aid the defendant in reaching a decision, in a conspiracy, in which the defendant is held responsible for both his and other co-conspirators’ acts as long as the co-con- spirators’ acts were “reasonably foreseeable.”56 36 Blaylock, 20 F.3d at 1467. Th e government can off er a plea agreement that does not 37 Blaylock, 20 F.3d at 1461. include any, or dismisses other, mandatory minimum off enses. 38 Blaylock, 20 F.3d at 1462. Th e government can dismiss a conspiracy charge and the 39 Blaylock, 20 F.3d at 1467. See U.S.S.G. § 3E1.1 (reducing United States Sentencing Guidelines off ense level for acceptance of responsibility, which almost always follows a guilty plea). 40 Blaylock, 20 F.3d at 1467-1468. 48 Id. 41 United States v. Day, 285 F.3d 1167, 1172 (9th Cir. 2002). 49 ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., 1991, No. 4-6.1. 42 Id.; see also Blaylock, 20 F.3d at 1468. 50 Smith v. Mahoney, 611 F.3d 978, 987 (9th Cir. 2010), cert. denied, 131 S. Ct. 43 Blaylock, 20 F.3d at 1468. 461 (U.S. 2010) (quoting ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 44 Id. (citations omitted). Supp.)). 45 United States v. Booth, 432 F.3d 542, 1075 (3rd Cir. 2005). 51 ABA Standards for Criminal Justice: Pleas of Guilty, 3d ed. (1999), No. 14- 3.2. This standard has been approved and cited by the Ninth Circuit. Blaylock, 46 See Wiggins v. Smith, 539 U.S. 510, 524 (2003) (“[W]e long have 20 F.3d at 1461. referred [to these ABA Standards] as ‘guides to determining what is reasonable.’”(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)); 52 ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d Blaylock, 20 F.3d at 1466 (“[U]nder the Strickland test, a court deciding ed., 1991, No. 4-5.2. whether an attorney’s performance fell below reasonable professional stan- 53 United States Sentencing Commission, 2011 Sourcebook of Federal Sen- dards can look to the ABA standards for guidance. Strickland, 466 U.S. at 688, tencing Statistics. 104 S.Ct. at 2065). 54 Id. 47 ABA Standards for Criminal Justice: Pleas of Guilty, 3d ed. (1999), No. 14- 3.2; see also ABA Standards for Criminal Justice: Prosecution and Defense 55 21 U.S.C. § 841. Function, 3d ed., 1991, No. 4-3.8 & 4-6.2. 56 See, e.g., Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). defendant thus pleads guilty to only his acts.57 If the defendant and cooperate with the government. If called to testify at trial, faces a mandatory minimum drug charge and has a prior felony cooperating co-defendants have many incentives to assist in the drug off ense, the government can choose, or not choose, to file conviction of the defendant, and that assistance includes detail- an “851 notice.”58 Th at notice doubles the mandatory minimum ing drug quantities. sentence, and if it includes two prior felony drug off enses, the Cooperation is another reason to plead guilty. Cooperating minimum sentence becomes life imprisonment.59 with the government means providing “substantial assistance Th ere is no parole in the federal system. Life means life. And in the investigation or prosecution of another person who mandatory minimum sentences are just that – the minimum has committed an off ense.”67 Th e United States Attorney’s sentence the court has to impose, with only two exceptions Offi ce unilaterally determines whether the cooperation is detailed below. “substantial.”68 If the cooperation is deemed substantial, the If a gun is involved with the drugs, the government is likely Assistant United States Attorney may fi le a “substantial as- to add a count of “using or carrying a fi rearm in commission sistance” motion under U.S.S.G. § 5K1.1 (a “5K motion”), au- of a drug traffi cking crime,”60 which adds, at a minimum, a thorizing the court to sentence below the advisory Guidelines’ mandatory fi ve–year sentence consecutive to the sentence for sentencing range, and more importantly a motion under 18 the drugs, and, like the statutory framework for drugs, man- U.S.C. § 3553(e), authorizing the court to sentence below the dates a series (beginning with fi ve years) of gradated mandatory statutorily-mandated minimum sentence at the time of sentenc- minimums, based on how the gun was used during the drug ing. Without a § 3553(e) “substantial assistance” motion, and traffi cking off ense.61 absent the “safety valve” exception which applies in limited Th e United States Sentencing Guidelines facilitate plea circumstances only,69 the judge cannot sentence the defendant agreements. A guilty plea almost always results in an “ac- below the mandatory minimum.70 Consequently, defendants ceptance of responsibility” credit reducing the defendant’s cooperate, which also means pleading guilty, hoping for a Guidelines calculations.62 Except for limited circumstances, that reduced sentence, ideally one below the mandatory minimum credit is unavailable for a defendant convicted at trial. Other sentence. reductions to Guidelines calculations are few and far between In addition to these daunting penalties, federal prosecu- and swamped by hundreds of enhancements. tors routinely take a state case federal. In other words, while Although numeric-based and thus cloaked in objectivity, state law enforcement and prosecutors may begin in investiga- many subjective determinations underlie the Guidelines calcu- tion and prosecution, eventually the case “goes federal.” At a lations. In drug cases, the applicable Guidelines’ range is based practical level, the state case serves as a placeholder, including primarily on the type and quantity of drugs.63 Th e greater the detaining the defendant. Dual sovereignty jurisdiction provides quantity of drugs attributable to the defendant, the higher the the federal executive branch the time needed to carefully select Guidelines’ sentencing range.64 Th e drug guideline is deter- and prepare federal cases that are defense-proof. Th ese dynam- mined not merely by reference to the off ense of conviction, but ics provide the government with tremendous leverage to extract by including all of your client’s “relevant conduct.”65 Relevant guilty pleas from defendants, who at best are hoping for a conduct includes conduct of co-conspirators that is “reasonably reduced prison sentence by pleading guilty, and maybe coop- foreseeable” and within the scope of the agreement, although eration. Th is practice is so common that “going federal” is part the court must make individualized fi ndings of foreseeability as of criminal practioner parlance. to each conspirator.66 Who really knows the drug quantity involved in a conspir- VI.CONCLUSION acy that spans time, locations, and involves multiple conspira- Statistics confi rm what criminal justice players know: tors, who typically are drug abusers suff ering memory and rather than going to trial almost every defendant pleads guilty. credibility problems. A plea agreement can include a govern- Particularly in the federal system, the stakes are simply too high, ment recommendation to calculate the Guidelines based on and the government’s case too good, for a defendant to risk a specifi ed drug quantity. Although not binding on the court, suff ering conviction at trial and incur enhanced punishment. that recommendation off ers some assurance not available to Th e Supreme Court’s decisions in Frye and Lafl er conform to a defendant convicted at trial. Moreover, drug cases are built this reality. Requiring eff ective assistance of counsel during the on cooperating informants, who are oft en co-defendants or plea agreement – or even better for the defendant, during the defendants in another case, who have decided to plead guilty plea bargain – process vindicates the Sixth Amendment right to counsel. 57 Under the relevant conduct section of the Guidelines, the defendant’s Guidelines calculation can still include the reasonably foreseeable acts of others. See U.S.S.G. § 1B1.8. 58 21 U.S.C. § 851. 59 18 U.S.C. § 841. 60 18 U.S.C. § 924(c). 61 Id. at § 924(c)(a)(A)-(C). 62 U.S.S.G. § 3E1.1. 63 U.S.S.G. § 2D1.1(c). 67 18 U.S.C. § 3553(e). 64 Id. 68 Id. 65 U.S.S.G. § 1B1.3. 69 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. 66 United States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992). 70 21 U.S.C. § 841. Deaths

John W. Mahan Montana in 1941, where he was elected to provide them with a bonus as other president of the freshman class and states had done for their World War John W. “Jack” Mahan, a retired joined Sigma Alpha Epsilon. II veterans. Th e state hadn’t done so Helena attorney, died peacefully on Aft er the attack on Pearl Harbor Dec. because aft er World War I, the Montana July 4, 2012, in his home. Independence 7, 1941, Jack joined the Navy Air Corps Supreme Court had found these bonuses Day was a fi tting date for in the spring of 1942 with the goal of to be unconstitutional. this former World War II being a Marine pilot. He began training He and another lawyer came up with Marine pilot and national as a Navy cadet at Carroll College before the idea of calling it an “honorarium” veterans’ leader to depart attending other prefl ight schools. instead of a “bonus.” Veterans groups this life. He was 89. He was discharged by the Navy in moved for an initiative imposing a two- Jack Mahan was a proud Mahan Corpus Christi, Texas, on April 3, 1943, cent tax on cigarettes sold to raise for $22 husband, father, grandfa- and commissioned next day as a lieu- million for the honorarium for World ther and great-grandfather. tenant in the Marine Corps with Navy War II veterans. Voters approved the He contributed greatly to his nation, wings. On that same day he married proposal by a landslide, and it withstood his state and his community over the Shirley Tuohy in Corpus Christi. She was a court challenge. decades. only 17 and needed her father’s permis- Aft er being commander for the He was born June 24, 1923, in sion to get married. Helena VFW post, Jack became state Missoula, the son of John W. Mahan Sr., Jack served as a dive bomber pilot in VFW commander, then a regional com- an attorney, and his wife, Iola. His father the Pacifi c Th eater during World War II, mander, before moving through the was former national commander of the fl ying a number of missions. chairs at the national VFW. He became Disabled American Veterans and later Aft er his discharge as a major in the national commander in chief of the brigadier general and Montana’s adju- 1945, Jack returned to Helena to attend 1.3 million-member VFW in 1958-1959. tant general. His mother was president Carroll College. Taking advantage of the As national VFW commander, Jack of the American Legion Auxiliary in GI Bill, he attended law school at what’s worked with Montana’s congressional Helena. now UM. He graduated from law school delegation to get a new veterans’ hospital He graduated from Helena High and was admitted to the state bar in built at Fort Harrison, west of Helena. School in 1941, serving as student body 1949. He enlisted the help of his friend, Rep. president his senior year. Mahan also Jack began practicing law in Helena Olen “Tiger” Teague, D-Texas, who worked as a doorman at the Marlow and built a successful trial law practice. chaired the committee overseeing the Th eatre where his sweetheart and future He attended meetings of Veterans wife, Shirley Tuohy, also worked. of Foreign Wars Post 1116 in Helena. Mahan, Page 29 Jack enrolled at the University of Veterans were angry that Montana failed

John Terence Flynn earned his law degree at the University of mother of his children, Eileen Boharski Montana in 1977. Flynn, of Bozeman. Surviving children John Terence Flynn, 59, passed away His principle occupations were are Meagan Flynn Mesmer (Aaron) of from complications of congestive heart Broadwater County Attorney, Townsend Shawnee, KS, and Molly Flynn of Seattle, failure on May 28, 2012 while on a short City Attorney, and had a private legal WA. Surviving grandchildren are Asher holiday in San Francisco. practice. John’s fi rst employment as an Aaron Mesmer and one on the way! John was born to William (Bill) attorney was as a legal clerk for Judge Surviving siblings include Claudia Warren Flynn and Lorena Hurd Flynn on Peter Meloy in Helena. Evans of Eureka, MT and Ted Flynn of July 23, 1952. He was born in Bozeman, At the age of 25, he was elected Townsend. He is survived by his aunt, Montana, but lived his life in Townsend. Broadwater County Attorney, the young- Louise Flynn, as well as numerous nieces John married Deborah Ann Whitehurst est county attorney in Montana state and nephews, and many fi rst, second and on July 24, 1999 at the Dry Creek Cabin history. He held that offi ce for almost third cousins. near Townsend. 34 consecutive years. John maintained John was preceded in death by his John had no military affi liation or a private practice offi ce in Th ree Forks, parents, William (1989) and Lorena experience. MT for many years and focused primarily (1993) and a brother, William Flynn John was educated in the Townsend on estate planning, real estate and water (1957). public school system and graduated rights. Funeral services were held on Sunday, in the BHS class of 1970. He attained John is survived by his spouse, June 3, in Townsend. a BA in History-Political Science at Deborah Whitehurst Flynn, of the University of Montana in 1974; he Townsend. He is also survived by the

Page 28 August 2012 Deaths

Nicholas A. Rotering Jr. 1973-1989, and the Montana Highway injured. He made the kick just as an ore Department from 1989-2004. At the last train was passing in back of the practice Nicholas A. Rotering Jr. (“Nick”) of two positions, he was the “point” person fi eld on its regular run to Anaconda, thus Helena passed away February 23, 2012 during the tumultuous legislative budget enshrining his name in practice legend as at the age of 69 aft er a brief battle with sessions that occurred every two years. the only holder of a 23-mile fi eld goal. cancer. He was born December 30, Nick was a member of the Moose Nick was a 3rd generation Irish 1942 to Nick and Dorothy Rotering in Lodge #639 where he served as governor American with a superb sense of humor. Butte, where he attended Boys Central and administrator. He will be remem- One spring he told a fellow litigator in High School and Montana Tech. Nick bered as a warm-hearted man with a Helena’s District Court that the purple received a JD from the University of great sense of humor who loved noth- robes worn by Judges Bennett and Meloy Montana Law School in 1970. He mar- ing more than a championship caliber were “for Lent”. Nick was the grandson, ried Carol “Chic” King and had a son, Grizzly Football season. During his son, nephew, brother and brother-in-law Nick , and daughter, Melena. college days at Montana Tech he played to 5 other Montana State Bar members. Nick worked as an attorney in as a lineman for the Orediggers, but was He is buried in the Rotering family plot Montana his entire life – with Montana once called upon to try his foot at fi eld- in Butte, where it was noted he can “keep Legal Services from 1970-1973, the goal kicking when the regular kicker was voting.” Department of Corrections from

Mahan committee. daughters, Bartley and Kara; his daugh- from page 28 Jack turned down an appointment ter, Shelley, and her husband, Carter by President Kennedy to be an assistant Picotte, of Helena; his daughter Bartley Veterans Administration funding. Aft er secretary of the Navy. In September 1965, and her husband, Bill Aanenson, of Teague came to Fort Harrison for a visit, he accepted President Johnson’s appoint- Issaquah, WA, and their three children, the VA reversed its position and later ment to the national Subversive Activities Justin, Rebecca and Michelle; and his announced a new 160-bed hospital would Control Board with the goal of “helping son, Dr. John and his wife, Leslie, Mahan, be built at Fort Harrison, with $5.4 mil- keep America clear of Communists and and their three children, Kristen, Jaren lion allocated for the fi rst phase. subversive elements.” And, Th e Mahan and Kylie. He also is survived by 11 great As VFW commander in chief, family moved to Arlington, Va. grandchildren. Mahan choose to spend more time in In December 1965, Johnson appoint- Other survivors include: his sister-in- Washington, D.C., to get to know sena- ed Jack as chairman of the board, and law, Jane, and her husband, Gene Th ayer, tors and congressman to inform them President Nixon later reappointed him of Great Falls, and four nieces and one about the problems faced by veterans and chairman. nephew. work with them to fi nd solutions. Aft er the board ended in the fall of He was preceded in death by his Th roughout his career, Jack got to 1973, Nixon appointed Jack to some top wife, Shirley Mahan; his father, John W. know Presidents Dwight D. Eisenhower, jobs in the Veterans Administration. He Mahan Sr., and mother, Iola Mahan, and John F. Kennedy, Lyndon B. Johnson, eventually became undersecretary to the his sister, Lucille Foot; and brother, Tom Richard Nixon and Gerald Ford and VA Memorial Services and director of Mahan; and their spouses. worked with them on veterans’ issues. the national cemetery system, oversee- Th e family off ers special thanks to U.S. Sen. Mike Mansfi eld, D-Mont., ing a major expansion of the national Brenda Th ompson, his personal care- once said, “John W. Mahan has done system and the creation of state veterans’ giver, for the past two and one-half years more for the veterans of Montana and the cemeteries. and all his special friends that visited him nation than any other man I know.” When that job ended in 1978, Jack and encouraged him. Also, thanks to Aft er his time as VFW national com- and Shirley Mahan returned to Helena Dr. Pincomb and the wonderful nurses mander ended, Jack returned to Helena where he resumed his law practice. She and staff at St. Peter’s dialysis unit, Dr. to practice law. At age 36, he ran for the died on March 30, 2002. Weiner and his excellent staff . U.S. Senate but lost in the Democratic Jack was a great host, always inter- Funeral Mass was Saturday, July 7 at primary election. ested in others as he entertained family Saint Peter’s Episcopal Cathedral; 511 Later that year, he was appointed and friends with stories about his life and Park Ave. where Jack was a long time national chairman of the Veterans for his views on the issues of the day. member. Kennedy presidential campaign com- He is survived by his daughter, mittee in 1960. Four years later, he Kim, and her husband, John Dunham, headed the national Veterans for Johnson of Siloam Springs, AR, and their two

www.montanabar.org Page 29 Job Postings and Classifi ed Advertisements consultation, and training to members on letter, resume, and references to bourgui- CLASSIFIEDS POLICY human resource management practices. [email protected]. Must possess comprehensive and thorough All ads (up to 50 words) have a minimum knowledge of principles, practices, proce- RECEPTIONIST/LEGAL SECRETARY: Speare charge of $60. Over 50 words, the ads dures, laws, and regulations relating to hu- Law Firm in Billings seeks an experienced are charged at $1.20 per word. Ads also man resources. Salary $80K plus, depending legal secretary. Competitive salary and ben- run a www.montanabar.org. Ads will run on qualifi cations and experience. efi ts. Send confi dential inquiries to Speare through one issue of the Montana Lawyer, For more information and to Law Firm P.C., P.O. Box 21220, Billings, unless we are notifi ed otherwise. A billing apply visit: http://www.mtcounties.org/ MT 59104-1220, Attention Sonja or email address must accompany all ads. Email news/association-announcements/ [email protected] Pete Nowakowski at pnowakowski@ maco-jpia-personnel-services-administrator montanabar.org or call (406) 447-2200. LEGAL ASSISTANT/PARALEGAL: Legal ATTORNEY: Garlington, Lohn & Robinson, Assistant/Paralegal needed for fast-paced, PLLP seeks an attorney with 5-10 years’ 10-attorney Helena law fi rm. Successful ATTORNEY POSITIONS experience. All inquiries kept confi dential. candidate will have three years minimum CLAIMS ATTORNEY: ALPS, a stock corpora- Strong academic credentials and writing skill legal assistant experience and should desire tion and parent-holding company of the are required. Please submit cover letter and a challenging and rewarding career. Duties Attorneys Liability Protection Society, Inc., is resume to Kathleen Desoto, PO Box 7909, include calendaring, light drafting and seeking a Claims Attorney to work in a multi- Missoula MT 59807-7909. Email: kldesoto@ research, document management, client disciplinary setting. Responsible for manag- garlington.com. communication, and document proofi ng/fi l- ing professional liability claims brought ing with Montana court systems. Candidate against ALPS’ insured attorneys nationwide. ASSOCIATE ATTORNEY: Perkins Coie is seek- should have strong proofreading, organiza- J.D. required with 3+ years’ experience in ing an associate to join its Environment, tion, and communication skills. Candidate LPL or comparable professional liability Energy & Resources practice in Boise, ID. must expect to work long hours under high claims including analysis of claim and cover- Experience with mining, oil & gas and public pressure conditions. Experience in estate/ age issues, investigation of facts and law at lands or other relevant experience in the probate, governmental relations, business issue, timely evaluation of exposure, posting government or private sector. Click Apply law. Prolaw software experience and prior appropriate risk reserves, closely monitoring Here link, attach cover letter, resume and federal ecf fi ling experience is benefi cial, if and coordinating with outside counsel and law school transcript. EOE/AA/M/F/D/V. not critical. Legal Assistant certifi cation is most importantly negotiating timely resolu- www.perkinscoie.com/careers preferred but not required. The fi rm off ers tion of claims. Please send resume, cover very competitive salary with paid health letter, 3 references, and application (avail- ATTORNEY POSITIONS SOUGHT insurance, holiday pay, sick/vacation leave, able at www.alpsnet.com) to ALPS, P.O. Box 401k, fl ex plan, parking, continuing edu- 9169, Missoula MT 59807, Fax: 406.728.7416, CONSERVE YOUR ENERGY for your clients cation, and additional benefi ts. We are a or email to [email protected]. and opposing counsel. I draft concise, con- fi rst-class law fi rm, and we are looking for vincing trial or appellate briefs, or edit your fi rst-class people. If that is you, please apply ATTORNEY: Do you have at least 3 years of work. Well-versed in Montana tort law; two by email to [email protected]; mail to legal experience? Are you skilled at legal decades of experience in bankruptcy mat- P.O. Box 1185, Helena, MT 59624-1185; or in analysis, writing and advocacy? Are you ters; a quick study in other disciplines. UM person at 44 West 6th Ave, Suite 200, Helena, interested in joining a busy Bozeman fi rm to Journalism School (honors); Boston College MT. Visit online at www.doneylaw.com. litigate in varied practice areas? Do you want Law School (high honors). Negotiable to team with other passionate, dedicated hourly or fl at rates. Excellent local references. SUPPORT SERVICES attorneys to represent clients? If so, please [email protected]. (406) 541-0416 send your resume and writing sample to me- VIRTUAL BANKRUPTCY ASSISTANT: Virtual [email protected] so we can discuss BUSY PRACTICE? I can help. Former MSC law bankruptcy preparation can save you time immediate opportunities with you. clerk and UM Law honors graduate avail- and money. Your bankruptcy petitions will able for all types of contract work, including be processed in a skillful and timely manner. DEPUTY COUNTY ATTORNEY: The legal/factual research, brief writing, court/ I have over 15 years bankruptcy petition Beaverhead County Attorney’s Offi ce is seek- depo appearances, pre/post trial jury inves- preparation experience. Member of the ing a deputy county attorney. Applications tigations, and document review. For more National Association of Virtual Bankruptcy will be accepted through August 17, 2012. information, visit www.meguirelaw.com; Assistants. Let me help you help your Applicants must be licensed to practice law e-mail [email protected]; or call (406) clients. [email protected] www. in Montana, or have taken the July 2012 Bar 442-8317. AnnAdlerVBA.com Exam. Recent graduates are encouraged to apply, however, admission to the Bar is PARALEGALS & OTHER OFFICE SPACE/SHARE required to begin work. Salary is approxi- PROFESSIONALS GREAT FALLS: Professional offi ce space in mately $41,500, plus benefi ts. To apply, sub- downtown Great Falls. 1700 sq. ft. 3 spacious LEGAL ASSISTANT:Seeking Legal Assistant mit a letter of introduction, a resume, three and updated offi ces with large windows, for small, highly-rated Missoula law fi rm professional references, and a transcript to conference room, reception area, stor- specializing in conservation real estate the Dillon Job Service: 730 N. Montana, CL age, kitchenette, and off street parking. transactions. Must communicate eff ectively #4, Dillon, MT 59725. Contact the Job Service Utilities included. 1.5 blocks from County and learn quickly in fast-paced environment. at 406-683-4259 for further information. Courthouse. Contact Mike George 406-771- Attention to detail, command of grammar, 1515 or [email protected]. PERSONNEL SERVICES ADMINISTRATOR: The spelling, MSWord required. 30-40 hours/ Montana Association of Counties is seek- week; paid holidays, vacation, pension plan, ing a full-time attorney to provide advice, health insurance allowance. Submit cover

Page 30 August 2012 CONSULTANTS & EXPERTS (406) 449-0565 (evenings); jimmyweg@yahoo. LLC, PO Box 3443, Great Falls MT 59403; (406) com; www.wegcomputerforensics.com. 899-8782; www.lighthouseinvestigations.net. BANKING EXPERT: 34 years banking experience. Expert banking services including documenta- FORENSIC DOCUMENT EXAMINER: Trained by INVESTIGATIONS & IMMIGRATION CONSULTING: tion review, workout negotiation assistance, the U.S. Secret Service and U.S. Postal Inspection 37 years investigative experience with the U.S. settlement assistance, credit restructure, expert Crime Lab. Retired from the Eugene, Ore., P.D. Immigration Service, INTERPOL, and as a priv- witness, preparation and/or evaluation of bor- Qualifi ed in state and federal courts. Certifi ed vate investigator. President of the Montana P.I. rowers’ and lenders’ positions. Expert testimony by the American Board of forensic Document Association. Criminal fraud, background, loss provided for depositions and trials. Attorney Examiners. Full-service laboratory for handwrit- prevention, domestic, worker’s compensation, references provided upon request. Michael F. ing, ink and paper comparisons. Contact Jim discrimination/sexual harassment, asset location, Richards, Bozeman MT (406) 581-8797; mike@ Green, Eugene, Ore.; (888) 485-0832. Web site at real estate, surveillance, record searches, and im- mrichardsconsulting.com. www.documentexaminer.info. migration consulting. Donald M. Whitney, Orion International Corp., P.O. Box 9658, Helena MT COMPUTER FORENSICS, DATA RECOVERY, BAD FAITH EXPERT WITNESS: David B. Huss, 59604. (406) 458-8796 / 7. E-DISCOVERY: Retrieval and examination of JD, CPCU & ARM. 30 years insurance claims and computer and electronically stored evidence by law experience. Former insurance adjuster and EVICTIONS an internationally recognized computer foren- defense counsel. (425) 776-7386. sics practitioner. Certifi ed by the International EVICTIONS LAWYER: We do hundreds of evic- Association of Computer Investigative Specialists tions statewide. Send your landlord clients to (IACIS) as a Certifi ed Forensic Computer INVESTIGATORS us. We’ll respect your “ownership” of their other Examiner. More than 15 years of experience. INVESTIGATIONS, SURVEILLANCE & LOCATES: business. Call for prices. Hess-Homeier Law Firm, Qualifi ed as an expert in Montana and United Professional and aff ordable, private investiga- (406) 549-9611, [email protected]. See States District Courts. Practice limited to civil tions led by 29-year Great Falls Police Captain website at www.montanaevictions.com. BILL and administrative matters. Preliminary review, Bryan Lockerby. FBI National Academy graduate. TO: Hess Homeier Law Firm, 445 S. 5tth West, general advice, and technical questions are com- Surveillance, statements, and more. Database Missoula MT plimentary. Jimmy Weg, CFCE, Weg Computer for locating subjects. (No criminal defense work.) Forensics LLC, 512 S. Roberts, Helena MT 59601; Cover entire state. Lighthouse Investigations

Litigation Attorneys and Paralegal Wanted

Hall & Evans, L.L.C., a prominent and well respected law fi rm headquartered in Denver, Colorado is currently expanding its prac- tice to the Billings, Montana area. We are excited about opening a regional offi ce in the Billings area and anticipate the offi ce will be open within the next 60 days. To accomplish this goal, we need two experienced, well respected litigation attorneys and a 5+ year experienced litigation paralegal with an ABA Paralegal Certifi cation to join our team and help establish a strong local presence in the Billings community. We anticipate this offi ce to grow and will be hiring additional employees in the near future!

Attorney Position Required Paralegal Position Required Knowledge, Skills and Abilities: Knowledge, Skills and Abilities: • Currently licensed to practice law in the State of Montana • Draft pleadings, discovery and routine correspondence • 3-5 years of litigation experience • Prepare for client meetings, including document productions, • strong academic credentials that have the ability to travel as depositions, hearings and trials needed • Review and summarize medical records • A strong work ethic and proven case management skills • Maintain case management fi les, both hard & soft fi le • Preference will be given to those with trial experience. maintenance • Excellent communication and analytical skills • Profi cient in court rules; docketing and maintaining • Exceptional research and writing skills calendaring systems • Top-notch marketing and client development skills • Well-developed writing and research skills • Competent computer skills in Microsoft Word and Outlook. • Must have strong MS Word and Outlook skills in Offi ce 2007 or 2010

If you are looking for a new challenge and the opportunity to help establish a new offi ce and be part of a growing Firm, then don’t miss this opportunity! We offer a competitive compensation and benefi ts package. We foster a culture that is collaborative and we honor work/life balance. We work hard and play hard! For more information on Hall & Evans, LLC, please visit our website at: www.hallevans.com. Interested candidates should respond with a cover letter, complete resume, salary history requirements, personal and profes- sional references, and a writing sample. Responses can be emailed to: [email protected] or mailed to: Hall & Evans, LLC, Attn: Human Resources, 1125 17th Street, Suite 600, Denver, CO 80202-2037

We are an Equal Opportunity Employer Montana State Bar of LawyerMontana State Bar of Montana P.O. Box 577 Helena MT 59624