Montana State Bar of Montana

LawyerSeptember 2015 | Vol. 40, No. 10 Working for Justice Neill wins Karla M. Gray Equal Justice Award Wandler wins Neil Haight Pro Bono Award

Also in this edition: > Special health care provisions for Indians in Obamacare need protection > Tribute to 20 Lawyers with 50 Years Practice > What you need to know about new reporting in the Montana Bar requirements for Affordable Care Act > Life-changing legislation for disabled people Montana Lawyer 1

The official magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. (406) 442-7660; Fax (406) 442-7763. INDEX E-mail: [email protected] State Bar Officers September 2015 President Mark D. Parker, Billings President-Elect Matthew Thiel, Missoula Feature Stories Secretary-Treasurer Neil Haight Pro Bono Award: Professor Hillary Wandler...... 10 Bruce M. Spencer, Helena Immediate Past President Karla M. Gray Equal Justice Award: Hon. Kenneth R. Neill...... 12 Randall Snyder, Bigfork Class of Distinction: 50-Year Pin Winners...... 14 Chair of the Board Leslie Halligan, Missoula ‘Obamacare’ provisions for Indians Need Protection...... 18 Board of Trustees ACA Reporting Rules: What You Need to Know...... 20 Marybeth Sampsel, Kalispell Elizabeth Brennan, Missoula Liesel Shoquist, Missoula Montana’s Area Agencies on Aging...... 21 Tammy Wyatt-Shaw, Missoula Ellen Donohue, Anaconda Meeting Your Duty to Communicat...... 22 Jason Holden, Great Falls Shari Gianarelli, Conrad Life-Changing Legislation for People with Disabilities...... 23 Kent Sipe, Roundup Luke Berger, Helena Kate Ellis, Helena J. Stuart Segrest, Helena Regular Features Jane Mersen, Bozeman Lynda White, Bozeman Member News...... 3 Juli Pierce, Billings Ross McLinden, Billings State Bar News...... 6 Eric Nord, Billings CLE...... 8

ABA Delegates Court orders...... 9 Damon L. Gannett, Billings Shane Vannatta, Missoula Obituaries...... 28

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

Subscriptions are a benefit 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 neces- sarily reflect the views of the State Bar of Montana.

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Page 2 September 2015 President’s Message | President Mark D. Parker It’s a wrap on bar president’s term

It’s a wrap. Time to roll the credits – which restraints on the punches we can throw. usually empties the theater. Time to thank Legal services for the vast middle economic everyone – which bores the audience to death layer of Americans is going to be delivered, until they strike up the band. Time to reflect and is being delivered, electronically without and pontificate as if I am the only one who has regard to a wide variety of Rules of Professional ever served as president of the State Bar, and the Conduct limiting fee sharing with non-lawyers, only one to make global, sweeping and stunning confidentiality, proper licensing in the venue, observations. Those of you who have become checking for conflicts, etc. Given the market barn sour listening to those who have elbowed forces; the lack of money and political will to their way on stage, or in print, and abused the fight it; and quite possibly FTC protection, it privilege of being granted a few words, I can cannot be stopped. It is going to arrive as UBER, make only a single promise – you ain’t seen Google, or Apple – “In Without Knockin.’” nothing yet. Here I go. I will be quick. “Montana is 3. Montanans have no natural punching way 1. Thank You enemies, so the State Bar As every President before me, I am grateful is a good place to get involved above its weight to my family, professional colleagues, the State on the national Bar staff and fellow officers and trustees for their In law school at the University of San Diego, support. I cannot name them all. there were a good deal of odd factions. The East scene. ... Find However, a few incidental thank yous are Coast vs. the West Coast; Northern California v. a way to get in order. First, to Bill Lamdin. Throughout this Southern California; even Southern California had a discernable schism between the San Diego involved if year, Bill has made a point to thank ME for my Bar service, as have many others. I know students and Los Angeles students. Some reli- you have any he is sincere, because when he has in the past gious groups would subdivide between degrees of orthodoxy. These petty factions still exist, I inclination been not so thankful about my behavior, he has sincerely let me know that also. Thanks, Bob regret to say. Montanans are like the dingo dog, whatsoever.” Carlson, for setting it up so I could meet ABA we have no natural enemies. Thus, the food President Paulette Brown and persuade her to chain is easier to climb. Mark D. Parker is the come to the State Bar Convention. Thanks to Montana is punching way above its weight outgoing president of Paulette Brown for agreeing to come. on the national scene. Jock Schulte is on the the State Bar of Montana. Mostly, thanks to the State Bar members for American Bar Association Board of Governors. He has practiced in paying their dues so I could do my work with- Bob Carlson is, as we know, ascending in Billings for 34 years, out digging too deeply into my pocket. the ranks of the ABA. Greg Murphy is the the last 28 in a firm he chair elect of the Council of Section of Legal founded, Parker, Heitz & 2. What I learned, and need to pass on Education and Admissions to the Bar of the American Bar Association. Amy Sings in the Cosgrove. He will pass The challenges facing the legal profession are Timber has been recently appointed to the the gavel as bar coming from every direction, and we will meet Executive Director’s position at the Chicago Bar president to Matt Thiel at them all, but not without reflection, change Foundation. Judge Sid Thomas is now the Chief and hard work. In the legislative session we the Annual Meeting Judge of the Ninth Circuit. Find a way to get had only a handful of complaints about our in Missoula Sept. 9-11 involved if you have any inclination whatsoever. lobbying efforts, equally divided from what we The invitation to get involved is extended traditionally consider as the right wing of the to the authors of the letters who criticized our political spectrum and the left wing. Although lobbying efforts and all those along the various a bit intemperate, they were sincere and worthy political axes. As the great Italian philosopher of digesting for next time. They all expressed Gene Jarussi once said about getting people real concern about the State Bar injecting itself involved, “it does not matter if they think like in any political matter. We had a bigger number me, it only matters that they think.” of members express frustration with our lack of Thanks again involvement on some legislative matters. What one quickly learns is that there are no legal — Mark D. Parker restraints on the punches we take, but many www.montanabar.org Page 3 Member and Montana News

Warren joins Silverman Law Office in Helena While in law school Brooke was a member of multiple moot court teams and helped coach the university’s debate team part Silverman Law Office PLLC has announced that Kristina time. Nick knew he wanted to work in the criminal Warren has joined the firm as an associate attorney. Warren will defense arena and tailored his law school education practice in the areas of tax controversies, estate planning, busi- by completing a wide array of criminal law courses, ness law, real estate transactions, and liquor/gambling law. including white-collar crime, domestic violence, Warren graduated cum laude from Seattle advanced criminal procedure, and advanced University School of law in 2013 and earned constitutional law. He was also a member of the her master’s in tax law from the University of Federal Defenders Clinic during his third year. He Washington in 2014. During law school, she Brooke spent his first year in practice clerking for Montana worked as a student attorney at the University of Supreme Court Justice Michael Wheat. Washington Low Income Taxpayer Clinic and con- Brooke attended Carroll College, where he obtained a B.A. Warren tinues to represent clients as a volunteer attorney in international relations and political science, and minored in through the clinic. philosophy. While in college, he was president of the debate Warren has extensive business experience as a controller team, and he was selected as an intern for the Cato Institute, a of several companies, as well as being an entrepreneur herself. libertarian think tank in Washington, D.C. She is a member of the State Bars of Washington, Montana and North Dakota and is admitted to practice before the U.S. Tax Snedigar joins Billings law firm Court. She can be reached at 406-449-4829 or kristina@mt- taxlaw.com. Patten, Peterman, Bekkedahl & Green PLLC has announced that Daniel L. Snedigar has joined the Brooke joins Smith & Stephens in Missoula firm. Snedigar grew up in Billings and graduated Smith & Stephens, PC. Law Offices in Missoula, announces from Billings Senior High School in 1994. He re- that Nicholas Brooke has joined the firm as a new associate. ceived his Bachelor of Arts in political science from Brooke graduated from University of Montana School of Law in the University of Montana in 1999 and earned his 2013. Snedigar Juris Doctorate from Chicago-Kent College of Law

Come learn from some of the nation’s tax experts: • Natalie Choate • Scott Schumacher • Martin McMahon • Scott Taylor • Conrad Teitell • James Delaney Presents the • Jonathan Blattmachr • Pippa Browde • Sam Donaldson • Kristen Juras 63rd AnnuAl Montana • Louis Mezzullo • Elaine Gagliardi View the full agenda and register TAx InsTITuTe today online at umt.edu/law.

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Page 4 September 2015 Member and Montana News in 2007. He is admitted to practice in Montana and Illinois. According to an article in the Billings Gazette, Sime will start Prior to joining the firm, Snedigar worked as a staff attorney Sept. 8. She had a 20-year career with Montana Fish, Wildlife for the State of Montana Public Defender’s Office; as an associate and Parks as a wildlife biologist where her work included devel- attorney at Corrette, Black, Carlson & Mickelson in Butte; and as opment of Montana’s wolf management program. an attorney for various firms in Chicago. His areas of practice Sime left FWP in 2011 to attend the University of Montana include civil litigation, construction law and commercial law. School of Law. She graduated in 2014 and is a law clerk for Sam You can reach Snedigar at Patten, Peterman, Bekkedahl and Haddon, U.S. District Court Judge in Helena. Green, PLLC, 2817 2nd Ave. North, Suite 300, Billings, MT 59101; [email protected]; or 406-252-8500. Hall & Evans promotes Hensel to special counsel Watson named to Best Lawyer’s in America list Hall & Evans, LLC has announced that Craig Hensel has recently been promoted to Special Counsel. Rebecca Watson of the Denver office of Hensel joined the firm in 2014 and his practice Welborn Sullivan Meck & Tooley was listed in focuses on civil litigation with an emphasis on the 2016 edition of The Best Lawyers in America. transportation defense. Watson was selected for inclusion in the fields of Prior to joining Hall & Evans, Hensel was a Energy Law and Natural Resources Law. deputy city attorney and practiced municipal law In all, seven lawyers from Welborn Sullivan for 17 years. He received his JD from University Watson Meck & Tooley made the list. of Montana School of Law and his BA from Hensel Montana State University where he majored in Sime to manage state sage grouse program political science. Hall & Evans is a Rocky Mountain regional law firm estab- Carolyn Sime, a wildlife biologist who previously led the lished in 1932 which focuses on tort and commercial litiga- state’s wolf management program, has been hired as the tion. The firm has offices in Denver, Billings and Cheyenne, Montana Sage Grouse Habitat Conservation Program manager. Wyoming.

www.montanabar.org Page 5 State Bar News

Lawyer Assistance Program offers regular followed by the meeting at 12:15 p.m. support group meetings across the state n Great Falls: Last Wednesday of each month, conference room at 1314 Central Ave. Meeting begins at 5:30 p.m. The Lawyers Assistance Program has support groups that n Helena: Last Wednesday of each month, Power Block, 7 meet regularly in locations around the state. W. Sixth Ave., fourth floor conference room. Social gathering is The groups are open to all members of the legal profession, at noon, followed by the meeting at 12:15 p.m. including lawyers, judges, paralegals, law students and faculty. n Kalispell: Last Thursday of each month, meeting room st They provide a safe space to share issues that affect or may -af in the basement of the Kalispell City Library, 247 1 Ave. East. fect our ability to fulfill our responsibilities to our clients, our Meeting begins at 5:30 p.m. colleagues and our profession. n Missoula: First Wednesday of each month in the Pope The meetings are confidential and anonymous. Room of the law school. Meeting begins at 6 p.m. Locations and times of meetings are as follows: Support groups in Bozeman, Butte and eastern Montana will n Billings: Third Thursday of each month in the conference be determined at a future date. room of the GW Building, at the intersection of Third Avenue For additional information, call Mike Larson at North and North Broadway. Social gathering is at noon, 406-660-1181.

Utah State Bar names Yengich Lawyer of Year Defense Lawyer from Utah Business (2003). He has served as President of the Utah Criminal Lawyers Association, two terms as Ronald J. Yengich has been named Lawyer of the Year by the President of the Utah Bar Association, and Board Member for the Utah State Bar. Utah Criminal Lawyers Association. Yengich is a member of the State Bar of Montana in addition to He also has had several teaching positions over the years, includ- the Utah State Bar. ing being an adjunct professor at Westminster College teaching The award is the most prestigious award given to an attorney by in the Paralegal Program, Criminal Law and Procedure and Legal the Utah State Bar. It is a lifetime achievement award that recogniz- Writing. es one lawyer per year who has reached the epitome of excellence in the legal profession over his or her Gov names four to public defender task force career. According to Utah State Bar Commissioner Gov. Steve Bullock in August announced four appointments to Susanne Gustin, Yengich has practiced criminal the Task Force on State Public Defender Operations. They are: defense in Utah for 40 years and has represented some n Mike Eakin, Billings. Eakin is an attorney experienced in the Yengich of the most high-profile clients in Utah as well as the federal Indian Child Welfare Act advocating on behalf of racial nation.Clients he has successfully represented include minorities in Montana. Eakin is an attorney with Montana Legal the heavily reported murder cases of James Bottarini, Sam Kastanis, Services, and an Adjunct Professor at Chief Dull Knife College. Mark Hoffman, Michael DeCorso, and Joseph Lovato. n Jason Holden, Great Falls. Holden is an attorney with experi- He has also worked on many high-profile pro bono cases. ence in the criminal defense of misdemeanor and felony offenses in In addition to his legal sense, Yengich is a prolific writer. He has Montana. He is a trial attorney and appellate advocate with experi- been a columnist for the Private Eye newspaper, The Salt Lake City ence in criminal defense. He is also a member of the State Bar’s Observer, The Catalyst, the Bench and Bar Journal and many oth- Board of Trustees. ers. He has written articles on legal matters in publications includ- n Wendy Holton, Helena. Qualification: Group facilitator. ing the Journal of Contemporary Law, Criminal Defense Magazine, Holton is an attorney in private practice. and Utah Beat. n Juli Pierce, Billings. Pierce is an attorney with experience in Career honors he has received include: Best Columnist, Private the prosecution of misdemeanor and felony offenses in Montana. Eye Newspaper (1992-93 and 1993-94); Gold Special Jury Award, Pierce is the Senior Deputy Yellowstone County Attorney. She is Worldwide Film Festival in Houston (1999); and Best Criminal also a member of the State Bar’s Board of Trustees. 406-660-1181 Montana’s Lawyers Assistance Program Hotline Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction .

Page 6 September 2015 MONTANA DEFENSE TRIAL LAWYERS Annual CLE Seminar

September 25, 2015 | 7 CLE credits requested (INCLUDES 1 HOUR ETHICS) Doubletree by Hilton Missoula Edgewater, Missoula, Montana A limited block of rooms has been reserved for MDTL program participants. Call 406.542.4611 and ask for the MDTL room block rate. For full schedule and additional information, visit www.mdtl.net.

Powerful Witness Preparation Dan Small, Esq. ■ Learn the step‐by‐step method to teach your client the basic principles of testifying. ■ Give your client the confidence to exercise the right, the responsibility and the tools to take control of their testimony. ■ Level the playing field where the questioner usually has the advantage. ■ Alert your client to the most common witness mistakes and share practical tips to avoid them. ■ Increase your expertise as an advocate, and give yourself a winning edge in the litigation process. Dan Small, Esq. Dan Small’s expansive career provides the unique basis for his excellence as a teacher and author. His impressive body of work includes lawyering for the U.S. Department of Justice, work as corporate general counsel for a national healthcare management firm and private practice with both small and large firms. “Dan Small’s excellent Preparing Witnesses simplifies the task of convincing clients who are ‘too busy’ just how important preparation is and how it should be done.” ‐Alan Dershowitz, Professor, Harvard Law School

“Meek” Me at the Marketplace & Seminar Schedule Let’s Be Reasonable 7:30 am-11:45 am Powerful Witness Preparation Nancy Fraser Michalski, RN, CPMA Dan Small, Esq. What evidence of ‘reasonable’ medical expenses is 11:45 am-1:15 pm MDTL Annual Membership available in light of Meek v Eighth Judicial District Court, Meeting Luncheon Lunch on 2015 MT 130, 379 Mont. 150, 349 P.3d 493? Carriers and your own if not attending defense attorneys can more energetically challenge 1:15-2:15 pm “Meek” Me at the Marketplace & Nancy Fraser plaintiff’s claims for recovery of excessive medical charges. Let’s Be Reasonable Michalski, RN Nancy Fraser Michalski, RN, Nancy is a nationally recognized expert in medical billing CPMA and bodily injury litigation support services. She testifies in state and federal court on issues involving the reasonable value of medical care. As Vice President of Elevate 2:30-4:30 pm Powerful Witness Preparation Services, Inc. Nancy strategically leads a range of services that improve outcomes, Dan Small, Esq. reduce costs and expedite settlements in bodily injury claims and litigation.

Fees Two Ways to Register: On or Before Sep. 1 After Sep. 1 MDTL Member $260 $325 1. Easy online registration at www.mdtl.net Nonmember $345 $410 Paralegal $175 $215 or Claims Personnel $140 $160 Law School Students $25 $25 2. Registration Form Judiciary/Law Clerks Complimentary Complimentary Name ______

Payment must accompany registration Total Enclosed $______Nickname for badge ______

Join now and save! www.mdtl.net Firm ______Payment Information: Address ______“ Visa “ MasterCard “ Check (made payable to MDTL) City/State/Zip ______Cardholder’s Name (please print)______Account # ______Exp. Date ______Email ______Validation Code _____ Auth. Signature______Phone______Cell______Cardholder’s Address ______City/State/Zip ______Send registration form to: MONTANA DEFENSE TRIAL LAWYERS Registration Policies: The registration fee includes all sessions and course material. 36 South Last Chance Gulch, Suite A ● Helena, MT 59601 Payment must accompany registration form to receive early registration discount. Can‐ Phone 406.443.1160 ● Fax 406.443.4614 cellations received in writing by September 1 will be subject to a $25 service charge. No refunds will be made after September 1. Course materials will be mailed to pre‐paid [email protected] ● www.mdtl.net registrants who were not able to attend the conference. Registration substitutions may be made at any time without incurring a service charge. www.montanabar.org Page 7 State Bar News MLSA proposes resolution for Annual Meeting calling for increased funding for legal services Montana Legal Services Association has proposed a resolu- The proposed resolution reads that the Bar should: tion to be voted on at the State Bar of Montana Annual Meeting “Strongly urge Congress to maintain a firm commitment to in Missoula to call on Congress to increase federal funding for providing equal acces to justice for the nation’s poor as called the legal services program nationwide. for under the Legal Srvices Corporation Act of 1974; and The resolution, if approved by the State Bar’s Past “Strongly urge the United States Congress to increase federal President’s Committee at its Resolution Meeting, will be voted funding for the legal services program nationwide; and on during the Bar’s business meeting from noon to 2 p.m. On “Strongly urge all members of the State Bar of Montana Thursday, Sept. 10, at the Holiday Inn Missoula Downtown. to participate in pro bono programs established through the The resolution meeting will be held on Wednesday, Sept. 9, cooperation of the State Bar of Montana, local bar associations, from 1 to 1:30 p.m. in the Montana Boardroom of the Holiday MLSA and other entities to assist in providing legal services for Inn. those unable to pay.” Continuing Legal Education For more information about upcoming State Bar CLEs, please call Tawna Meldrum at 406-447-2206. You can also find more info and register at www.montanabar.org. Just click in the Calendar on the upper left of the home page to find links to regis- tration for CLE events. We also mail out fliers for multi-credit CLE sessions, but not for one-hour CLE or webinars. Seminar to highlight Montana Women in the Law Montana Women in the Law: Past, Present and Future, a much more. CLE seminar with 6.5 credits including 1 ethics, will be held at The moderator is Bridget leFeber of Berg Lilly & Tollefsen, Chico Hot Springs Resort Oct. 1-2. Bozeman. Speakers are Justice James Jeremiah Shea of the Attendees will learn about Montana’s proud history of Montana Supreme Court; Rich Deming, CIC and shareholder women lawyers dating back to territorial days and about the at First West Insurance; Eric Nord, Crist, Butler & Nord, inspiring women who forged the practice and opened doors Billings; Michael R. Powell, vice president, Construction for women practicing in Montana today. Current members of Division, American Arbitration Association; Matt McLean, the Montana Supreme Court and Montana federal and district Crowley Fleck, Bozeman; Glenn Tremper, Great Falls; and courts will share their insights about changes and challenges Kellie G. Sironi, Billings. that impact all practitioners. During afternoon break-out sessions, attendees can learn Behind the Curtain: Deepening Our Understanding of from colleagues practicing in their field. Dispute Resolution — 7.0 CLE credits (2 ethics) — Oct. 9, The faculty includes three justices from the Montana Helena. Supreme Court — Justice Patricia Cotter, Justice Beth Baker This CLE moves beyond mediation checklists and looks at and Justice Laurie McKinnon; U.S. District Court Judges Hon. the neuroscience of mediation, collaborative law, mediation Susan Watters and Hon. Carolyn Ostby; and state District and justice, pitfalls of mediation and ethical issues in dispute Court Judges Hon. Mary Jane McCalla Knisely, Hon. Kathy resolution. Bidegaray, Hon Brenda Gilbert, Hon. Leslie Halligan. Also on Faculty are Montana Supreme Court Justice Laurie the faculty. McKinnon; Francis (Hank) Raucci, Gough Shanahan, Johnson & Waterman, Helena; Tal Goldin, Disability Rights Montana, The 11th Annual Construction Law Institute — 7.0 CLE Helena; Alain B. Burrese, Missoula, Abigail R. Brown, Moore, credits — Oct. 9, Bozeman O’Connell & Refling, Bozeman; Linda Gryczan, Montana Construction law practitioners and construction profession- Mediation Association President, Great Falls als will gain insight into practical yet critical issues to consider before, during, and after a construction project. Other Upcoming CLE Such issues include what type of insurances to have in place n Road Show – Friday, Oct. 16 – Kalispell. Details and regis- and in your contracts, what types of provisions are important to tration to follow. include in construction contracts, including alternative dispute n Family Law Section CLE – Friday, Oct. 23 – Missoula. resolution procedures, recent Montana law on the importance Details and online registration to follow. of following notice provisions in a construction contract, the n Tech Talk, Tech Talk, Time is Running Out – Friday, Oct. standards of care which may govern a construction project, and 30 – Missoula. Details and online registration to follow.

Page 8 September 2015 Court News Sherlock to retire as Helena District Court judge; commission seeking replacement The Hon. Jeffrey Sherlock, district judge for the First Judicial The public is encouraged to contact Commission members re- District (Lewis and Clark and Broadwater counties) will retire garding the applicants during the public comment period, which effective Dec. 31, Chief Justice Mike McGrath has informed the will begin Monday, Sept. 14, and close Wednesday, Oct. 14. Judicial Nomination Commission. The Commission will forward the names of three to five The Commission is now accepting applications from any law- nominees to the governor for appointment after reviewing the yer in good standing who has the qualifications set forth by law for applications, receiving public comment, and interviewing the holding the position of district court judge. The application form applicants if necessary. The person appointed by the governor is is available electronically at the court website. Applications must subject to election at the primary and general elections in 2016. be submitted electronically as well as in hard copy. The candidate elected in 2016 will serve for the remainder of Judge As of Aug. 25, two people had applied: Melissa Broch, Sherlock’s term, which expires January 2019. The annual salary for Lewis and Clark County deputy county attorney; and Michael the position is $126,132. McMahon, managing member of McMahon, Wall & Hubley The Judicial Nomination Commission members are: District PLLC of Helena. Judge Richard Simonton of Glendive; Elizabeth Halverson of The deadline for submitting applications is 5 p.m., Sunday, Billings; Hal Harper of Helena; Mona Charles of Kalispell; Lane Sept. 13. The Commission will announce the names of the candi- Larson of Billings, Ryan Rusche of Columbia Falls; and Nancy dates thereafter. Zadick of Great Falls.

Six apply for 11th Judicial District judge position a member of the firm from 2006 through 2014 and previously worked at firms in California. The Judicial Nomination Commission has received applica- n John R. Quatman. Retired from the active practice of law tions from six attorneys for 11th Judicial District Court Judge since June 30, 2015. Prior to that, he was a partner at Quatman and is seeking public comment on the applicants. & Quatman in Whitefish for 17 years and was senior trial dep- The six who have applied are : uty district attorney at the Alameda County District Attorney’s n James Cossitt. Cossitt has been a solo private practitioner Office in Oakland, California, in Kalispell since 1999. He also has been a bankruptcy attorney n Dan Wilson. Wilson has been justice of the peace in for the FDIC’s consolidated office in Des Moines, Iowa. Flathead County since 2011. Prior to that he was a shareholder n Richard DeJana.DeJana has practiced in Kalispell since in Measure & Wilson inKalispell.He also has been a county at- 1977. Since 2005 he has been a solo practitioner, and prior to torney in Flathead, Blaine and Cascade counties. that running a firm with 50 employees. The commission will take public comment on the appli- n Amy Eddy. Eddy is a special assistant attorney general cants until 5 p.m. on Saturday, Sept. 12. Submit to Judicial with the Montana Department of Justice. Prior to that she was a Nomination Commission, c/o Lois Menzies, Office of Court solo practitioner and has also been a partner in law firms. Administrator, P.O. Box 203005, Helena, MT 59620-3005; or n Kay Lynn Lee. Lee has been self-employed, of counsel email to [email protected]. to Henning Keedy & Lee in Kalispell simce January 1. She was Court Orders

Laedeke denied additional time to file motion motion. The Office of Disciplinary Counsel objected to any addi- Summarized from an Aug. 18 order in No. PR 14-0471 tional time being granted to Laedeke for filing a motion to alter The Supreme Court denied disbarred Montana attorney or amend, and the court agreed. Randy S. Laedeke’s third request for additional time to file a mo- tion to alter or amend the court’s June 30 order to disbar him. CORRECTION The original deadline for filing such a motion was July 28. This Court, however, on July 28 allowed Laedeke an additional Incomplete identification of disciplined attorney 10 days to file his motion. On Aug. 10, Laedeke filed a second motion for additional time requesting that he have until August An article in the June-July issue of Montana Lawyer con- 18 to file his motion. On August 18, 2015, prior to any order tained incomplete identifying information on a lawyer who was being entered by this Court, Laedeke filed his third motion for ordered to receive a public censure. The article should have additional time, requesting that he have until Sept. 3 to file his identified the disciplined attorney as Joseph C. Connors Jr. www.montanabar.org Page 9 Feature Article | Neil Haight Pro Bono Award

Photo courtesy of the Missoulian/Michael Gallacher Professor Hillary Wandler is shown inside the University of Montana’s Alexander Blewett III School of Law. Wandler is the winner of the State Bar’s 2015 Neil Haight Pro Bono Award. A warrior for veterans Hillary Wandler cited for work helping those in need get benefits

Professor Hillary Wandler has been in the public eye in Earlier this year, Wandler was cited in the Missoulian’s 2015 a little more than she is normally accustomed to. 20 Under 40 feature, which highlighted Missoula’s top 20 Wandler isn’t a publicity seeker, but she is glad for the ex- business professionals under 40 years of age. The Missoulian posure nonetheless, because along with it has come some extra highlighted Wandler’s work on behalf of veterans even as she attention to an issue that is very important to her — helping battled breast cancer, which she was diagnosed with in 2012. Montana’s veterans get the benefits due to them for their service “I’m excited that pro bono work for veterans is getting to their country. attention,” Wandler said. “The veterans community needs Wandler, a professor at the University of Montana’s to navigate through the complexities of the Veterans Affairs Alexander Blewett III School of Law, is the 2015 winner of the system. Attorneys are well equipped for that.” State Bar of Montana’s Neil Haight Pro Bono Award. She will Wandler was nominated for the Pro Bono Award by receive the award at the bar’s Annual Meeting at the Holiday Montana U.S. Sen. Jon Tester. Inn Missoula Downtown Sept. 10. In his letter, Sen. Tester noted that Wandler developed the

Page 10 September 2015 law school’s veterans law course and has partnered with the Montana Supreme Court Pro Bono Program to develop Sen. Jon Tester’s nomination letter Montana Attorneys for Montana Veterans, a pro bono pro- Following is Sen. Jon Tester’s letter nominating Professor gram to help veterans with claims for disability benefits. Hillary Wandler for the State Bar’s 2015 Neil Haight Pro Wandler was excited when informed she won the award Bono Award: — she had no idea she had even been nominated. When she I fully recommend Professor Hillary Wandler for the found out Sen. Tester had been the one to nominate her, Neil Haight Pro Bono Award. Her passion for assisting it was an even bigger thrill. She said she has never met the veterans should be recognized. Professor Wandler teaches, senator, although she has worked with people on his staff among other courses, veteran disability law. Professor on veterans’ issues. Wandler’s research interests include legal issues arising for Even though Wandler’s father is a veteran, she wasn’t veterans suffering from psychological disabilities. Professor aware of veterans law issues until after she was out of law Wandler is admitted to practice in Montana state and school. She got a stark lesson in how difficult it can be to federal courts and the United States Court of Appeals for navigate through the VA system when her father came to Veterans Claims and is accredited to practice before the her for help with a denial letter he received on one of his Department of Veterans Affairs. claims. Professor Wandler developed the University of Montana “It was just Greek Law School veteran’s law course and taught the inaugural to me. I had absolutely class in 2009. In conjunction with this inaugural offering, no idea what it meant,” Professor Wandler partnered with the Montana Supreme she said. If a lawyer I’m excited that Court Pro Bono Program to develop Montana Attorneys can’t figure this stuff pro bono work for “ for Montana Veterans (MAMV) designed as a pro bono out, she thought, how veterans is get- program to assist Montana Veterans with claims for disabil- can a veteran with ting attention. ity benefits. As part of the development of the program, in no legal training be The veterans com- 2009 Professor Wandler created and delivered a substantive expected to? munity needs to and intense attorney teaching module designed to provide She learned navigate through attorneys the training required for accreditation to practice about a program in the complexities of before the Board of Veterans Affairs. Since the initial 2009 Washington, D.C., the Veterans Affairs training, Professor Wandler has developed and delivered called the Veterans system. Attorneys three additional substantive attorney trainings to increase Pro Bono Consortium are well equipped the number of attorneys willing to assist veterans with dis- which is related to the for that. ability claims before the BVA pro bono. Prior to the first Veterans Legal Services Professor training, there were three Montana attorneys accredited program. The consor- Hillary Wandler before the BVA. Subsequently and largely due to Professor tium has training on Wandler’s efforts, almost 70 accredited lawyers are able to DVD that anybody can get, but Wandler’s employer at the help our most in need veterans. time, Garlington, Lohn & Robinson in Missoula, sent her to Perhaps most importantly, since her involvement in vet- D.C. to get live training. eran issues, Professor Wandler has, over the last decade rep- Wandler modeled Montana Attorneys for Montana resented many veterans pro bono before the U.S. Court of Veterans after the program, which gives attorneys a client Appeals for Veterans Claims and appeals before the Board to handle and a mentor who walks them through the pro- of Veterans Appeals as well as assistance with other veteran cess with the client. related legal issues, often having multiple pro bono cases Wandler said the CLEs that she has put on have been open simultaneously. As anyone who is familiar with vet- well attended — an indication that a lot of attorneys in eran’s claims, the process is painfully lengthy and requires Montana are interested in veterans law. an incredible amount of time to see to the conclusion. In Tester in his nomination letter also cited Wandler’s addition to the countless pro bono hours contributed to the work as a mentor — noting that through her leadership benefit of the veterans, Professor Wandler mentors other the state has gone from having three attorneys accredited lawyers who are assisting veterans and serves as a touch- before the Bureau of Veterans Affairs to having 70. stone in recruiting volunteer attorneys to assist with veteran “Mentor, that feels way too big for me,” she said. “I cases. Despite the already incredible contributions of time really like to troubleshoot with people who are having diffi- and effort to a full time teaching position and volunteer cult cases. More often than not, it’s just a one-time call. This pro bono work, Professor Wandler is a regular volunteer at year particularly it’s been getting more and more frequent. Veterans Stand Downs in Montana. It doesn’t surprise me. A lot of people need help with the Without hesitation, I recommend Professor Hillary more complex cases than they can handle. Wandler. Her work and commitment serves as a role model “Then we can try and feed them into places where they’ll to many. actually find help. Referral is tough. It would be so great to have a team of people who just dig in on this.” With Wandler’s help, we are getting closer all the time. www.montanabar.org Page 11 Feature Article | Karla M. Gray Equal Justice Award A legacy of equal justice Neill was driving force behind Cascade County Law Clinic

The Hon. Kenneth R. Neill spent nearly 20 years as a district court judge in Cascade County before retiring earlier this year. He presided over cases big and small, including ones that received na- tional attention and one that was broad- cast in its entirety by Court TV. But the accomplishment that may be his most lasting legacy was done before he ever joined the bench. Neill was instrumental in establish- ing the Cascade County Law Clinic, which was established in 1993 when he was president of the Cascade County Bar Association . Neill is the winner of the State Bar of Montana’s 2015 Karla M. Gray Equal Justice Award. He will be presented with the award by Gov. Steve Bullock at the bar’s Annual Meeting in Missoula on Sept. 10. Neill was nominated for the award by Jason Holden of Great Falls, who pointed out in his nomination letter that Neill’s efforts filled the void left when the Cascade County office of the Montana Legal Services Association closed due to lack of funding. (See the full text of Holden’s nomination letter on the facing page.) Neill cites the clinic as one of his proudest accomplishments — though he is quick to point out that he didn’t do the job himself and that many others worked to make the clinic a reality and to keep it Hon. Kenneth R. Neill was Cascade County District Court judge from 1996 until his retirement on going in the 22 years since. June 30. Neill will be honored with the State Bar’s Karla M. Gray Equal Justice Award on Sept. 10 at “The Law Clinic is still going strong,” the bar’s Annual Meeting in Missoula. Neill said in an interview on his last day on the job as District Court judge Juvenile Drug Court. lawyer or judge. It was just so rewarding June 30. “There is great commitment by “Drug court was a new thing,” Neill to get these kids, getting them to exposed the attorneys here. I’m proud to have said. “We had to deal with a lot of skep- things they’ve never been exposed to had something to do with getting that tics. It took a while for it to get estab- before because of the culture they came started.” lished here, but our drug courts are really from and seeing them turn their lives Neill also made a major contribution running well at the time. around and graduate. I run into these to equal justice by working with Janet “I think presiding over the Juvenile young adults from time to time. It’s so Thayer of the United Way of Cascade Drug Court for about eight years was rewarding to see how some of them are County to initate the formation of a probably about the best thing I did as a doing.”

Page 12 September 2015 Below is the letter by Jason Holden nominating retired Cascade County District Court Judge Kenneth R. Neill for the Karla M. Gray Equal Justice Award. The Honorable Kenneth R. Neill has served the citizens private attorneys to represent the Law Clinic’s clients on of Cascade County since he was first appointed by Governor a pro-bono basis. When an attorney receives a letter from Marc Racicot in 1996. Born and raised in Helena, Judge Neill Judge Neill, he is not only ensuring access to justice for has made his life about serving Justice. Before he served as that specific client, but encouraging all attorneys to volun- a District Court Judge for nineteen (19) years, he served in teer their services in support of the Rules of Professional the United States Army, worked as a former law clerk to Conduct. Judge Neill’s recruitment of volunteer attorneys the Montana Supreme Court and represented victims as a is perhaps his greatest legacy in terms of access to justice. Deputy County Attorney. Without an attorney there is truly no access to justice. For over 22 years the citizens of Cascade County have Judge Neill’s commitment to recruiting volunteer attor- had something special because of the vision and efforts of neys has provided thousands of individuals with an attorney Judge Neill. That something special is the Cascade County — free of charge — since 1993. In 2014 alone, the Law Clinic Law Clinic (the Law Clinic). So many times lawyers and received 587.45 hours of pro bono attorney services with an Judges speak of access to justice without taking the neces- additional 192 hours of pro bono paralegal services. A con- sary steps to ensure that the fundamental right to a lawyer is servative estimate of the value of the hours donated equals provided to all, and not to just those who can afford it. Judge $200,000.00. That value to the community — in 2014, much Neill saw a need in 1993 when legal services throughout the less since 1993 — would never have been realized without State of Montana, and in particular Cascade County, was Judge Neill’s original vision, or continued commitment to under attack. Instead of allowing the needs of those who the Law Clinic. could not speak for themselves to be silenced, Judge Neill With the encouragement and support of Judge Neill, the convinced the stakeholders of Cascade County to form the Law Clinic has helped thousands of individuals with their Law Clinic. His vision is still in force today as the Law Clinic legal needs since 1993. The Law Clinic has provided pro celebrated its 22nd anniversary in 2015. bona representation in all family law matters, has provided The Law Clinic was formed by Judge Neill in 1993 in attorneys for victims of domestic violence and has assisted response to the serious need for access to legal services for individuals in landlord-tenant disputes. When a father or low-income individuals in Cascade County. Judge Neill has mother is provided an attorney free of charge in a family law personally done noteworthy and considerable work with the matter because of Judge Neill’s vision, that father or mother Law Clinic since its creation. Judge Neill was the instrumen- is able to bring stability to an otherwise unstable situation. tal force in ensuring local access to justice efforts in Cascade When a victim of domestic violence is able to have an at- County. Since the mid-1980’s the legal services community torney represent her at a contested hearing because of Judge has been under attack due to a lack of adequate funding. This Neill’s vision, that woman is provided security and assurance was especially true in Cascade County when the local office that the law will protect her. When someone has been kicked of the Montana Legal Services Association closed. Judge out of their home unlawfully because of Judge Neill’s vision, Neill did all that he could at that time to ensure that the Law that person is provided a place to live. Clinic would be able to fill the void. It is not just Judge Neill’s work in creating the Law Clinic Judge Neill has always understood that even though the that is noteworthy. It is his daily and yearly commitment to resources for legal aid were depleted, the demand for such the Law Clinic that makes his efforts remarkable. services would continue to grow. He was right. In form- He has worked tirelessly to improve the Law Clinic’s de- ing the Law Clinic Judge Neill relied on the entire Cascade livery of legal services and has found ways to fund the Clinic County community to support the program. The local Eighth when opportunities arise. He was instrumental in making Judicial District Bar Association has been a strong supporter sure the Law Clinic has survived several changes in leader- of the Bar since it helped form the Law Clinic under Judge ship and bumps-in-the-road. No matter who is in charge, or Neill’s leadership. The United Way of Cascade County has what issues arise, anyone who deals with the Law Clinic can supported the Law Clinic since its inception. Local citizens always call Judge Neill and the issue will be addressed. and lawyers have financially supported the Law Clinic in The Law Clinic has also been used as an example around substantial amounts. Local attorneys have built the clinic the State of Montana for its form and function. It is a model based on their pro bono service and work yearly to make that has been used by other local bars throughout the State of sure the Law Clinic continues to provide the services so Montana to define and model their delivery of legal services. many need. Judge Neill’s vision in regard to community sup- And so too is Judge Neill a model. He is a model of port has been tremendous as the community continues to selflessness and dedication to providing access to justice. He support the program 22 years after its creation. is someone the former Chief Justice Karla M. Gray would be The Law Clinic primarily serves individuals below 125 proud to have her name associated with for all that he has percent of poverty level. The Law Clinic has, for years, relied done, and all that he continues to do with the Law Clinic. upon Judge Neill and his staff to coordinate and recruit www.montanabar.org Page 13 Feature Article | 50-Year Pins A class of distinction 20 State Bar of Montana members to get recognition for 50 years of practice at Annual Meeting

Twenty members of the State Bar of Montana are receiving 50-year pins this year — and what a group it is. Most of the 50-year-pin recipients are plan- ning to be on hand for the banquet at the bar’s Annual Meeting in Missoula on Sept. 10 at the Holiday Inn Downtown, where they will receive their awards and be honored by a special program highlighting their remarkable careers. Twelve of the 50-year-pin recipients were Diana Dowling, shown above in a 1987 photo and in a more recent picture, was one graduates of the University of Montana School of of Montana’s trail-blazing female lawyers. She worked for the Montana Legislative Law’s Class of 1965 (see photos on facing page). Council for 20 years, including serving as drector of legal services, code commissioner That class included a future United State District and executive director from 1978 to 1986. She was the exucutive director of the Montana Court judge (Hon. Sam Haddon), two future state Bar Association from 1972 to 1974. Other highlights include being the first director of District Court judges (Hon. Kenneth R. Neill, the Montana Lottery, a commissioner on the National Conference of Commissioners on Hon. John W. Whelan,), a future president of the Uniform State Laws, a member of the Montana Board of Bar Examiners and serv ing as State Bar of Montana (Doug Wold). counsel to the Style and Drafting Committee for the 1972 Constitutional Convention. She The 20 who are receiving 50-year this year are: was the first secretary-treasurer of the unified State Bar of Montana.

n L. Neil Axtell, Spokane, Wash. n Robert Baxter, Thompson Falls n Donald Bjertness, Billings n Thomas Boone, Missoula n J. Allen Bradshaw, Drummond n Floyd Brower, Roundup n Milton Datsopoulos, Missoula n Diana Dowling, Helena n Bradley Dugdale, Havre n Hon. Sam Haddon, Helena n David Jackson, Helena n Horton Koessler, Billings n Hon. Kenneth Neill, Great Falls n David Niklas, Helena n Frederick C. Rathert, Williston, N.D. n Francis “Hank” Raucci, Helena n W. Gene Theroux, Grand Forks, N.D. n R. William Walsh, Great Falls n Hon. John Whelan, Butte n Douglas Wold, Polson Doug Wold was president of the State Bar of Montana for 1984-85. As bar president, Over the next few pages, we pay tribute in pic- Wold was instrumental in the formation of the IOLTA program, and in his term, the tures to many of this year’s 50-year pin recipients. Supreme Court created the Commission on Uniform District Court Rules at his request. He has run his practice at Wold Law Firm since 1995.

Page 14 September 2015 Shown is a recent class reunion photo from the University of Montana School of Law’s Class of 1965. They are, front row, from left, J. Allen Bradshaw, Bradley E. Dugdale, Joseph E. Reber; middle row, Hon. Kenneth R. Neill, Hon. Sam Haddon, Warren Gene Theroux, Fred C. Rathert; back row, Robert T. Baxter, Horton “Tony” Koessler, David K. Niklas, Douglas J. Wold, Milton Datsopoulos, and Hon. John W. Whelan. Of the 13 people pictured, 12 will receive ther 50-year pins at the State Bar of Montana’s Annual Meeting in Missoula Sept. 9-11. The other is Reber, who passed away earlier this year. See his obituary on page 28. Below is the class photo of the Class of 1965. Can you match the people in the reunion photo to the 1965 photo? (Hint: They are lined up in the same rows, and mostly in the same order in both pictures).

www.montanabar.org Page 15 50 years of practice in Montana Milt Datsopoulos is senior partner at Datsopoulos, MacDonald & Lind in Missoula. His awards include Lifetime Trial Lawyers Achievement Award; selected as one of the nation’s top 100 trial lawyers; fellowship in the Litigation Counsel of America’s Trial Lawyer Honorary Society; chosen as a Mountain States Super Lawyer.

Hon. John W. Whelan retired in 2006 after 12 years as a state District Don Bjertness is shown in 1965 photo and in a 2010 photo. Bjert- Court judge in Butte. At the time he retired, he was the oldest district ness served for 24 years as Billings Municipal Court judge. He judge in Montana. Prior to becoming a judge, he was a private lawyer received his JD from the University of North Dakota in Grand Forks for 30 years and a part-time U.S. magistrate judge in Butte for 10 in 1957. years.

Page 16 September 2015 50 years of practice in Montana

Thomas Boone graduated from Harvard Law School in 1965 and spent a year clerking for a federal judge. In 1968, he formed Boone Karlberg, from which he retired as of June 30, 2015.

Francis J. (Hank) Raucci received his law degree David L. Jackson, of Helena, passed the bar on April 15, 1965, and began from Georgetown University in 1965. He has practicing the next day. He has practiced with the firm that is now known as been a member of the Philadelphia Crime Com- Jackson, Murdo & Grant since 1968. He attended Drake University Law School mission, the Montana Labor Relations Board, from 1962-64. and was appointed an early neutral evaluator by the U.S. District Court for Montana in 2002. In 2010, he was elected as a fellow of the Academy of Court Appointed Masters, one of 83 in the U.S. www.montanabar.org Page 17 Feature Article | Affordable Care Act Special health care provisions for Indians in ‘Obamacare’ in need of protection By Andrew W. Baldwin, Kelly A. Rudd and M.J. Vuinovich

Congress exempted American Indians from payment of health insurance deductibles and co-payments under the Patient Protection and Affordable Care Act (ACA) (“Obamacare”) as a progressive way to help fulfill federal trust and treaty obligations in Indian Country. However, recent IRS regulations prevent tribal members from obtaining this exemption if they work for a “large em- ployer,” even when that employer is an Indian tribe. The regu- lations push tribal members, who are exempt from the ACA individual mandate, away from the health insurance market and back toward the historically underfunded Indian Health Services (IHS) system. At the same time, fewer insurance policies for tribal mem- bers reduce reimbursements for IHS, which, in turn, further reduce IHS funding and services. Indian Country is beginning to take a closer look at the problems created by these new IRS regulations and to lobby Congress and the Administration for More on Affordable Care Act a solution. In fact, Sen. Steve Daines, R-Mont., and others, are now sponsoring a bill to make it clear that Congress does Turn to page 20 for an article on the brand-new ACA not intend for tribes to be treated as large employers under the reporting requirements. The primary message to your ACA. clients should be, Do not delay! The Affordable Care Act In 2010, Congress enacted special provisions for the health dealt uniquely with the provision of health care for Native care of Indian people and permanently re-authorized the Americans under the ACA. Congress intended to treat Indian Indian Health Care Improvement Act (IHCIA) as part of the individuals, Tribes, and tribal entities separately and distinctly ACA. The intent of these provisions was to improve uncon- from non-Indians within the Act.4 The act includes permanent scionably poor health conditions among Native Americans reauthorization for the IHCIA.5 It exempts Native Americans and to help fulfill unique treaty and federal trust obligations to from the individual mandate on the basis of the trust rela- tribes and tribal members. tionship.6 It creates special cost-share benefits for Native Americans.7 It allows IHS to receive reimbursement for Part B Special health care provisions for Indians Medicare services.8 It adjusts the valuation of out-of-pocket 9 The ACA includes two important provisions that facili- costs for Part D Medicare provided through IHS. It creates tate cost-effective health care for Native Americans: (1) ACA special monthly enrollment periods for Native Americans de- §1401, which provides Premium Tax Credits to low-income signed to promote and protect the rights of Native Americans 10 and working-class Americans1 (people in the income range of to make choices about health care insurance. It provides 100-400 percent of the poverty line);2 and (2) ACA §1402(d) special grant funding opportunities to Tribes and tribal or- 11 (1), which provides for a Cost-Sharing Exemption that ganizations. The law gives special emphasis to promoting Congress created for the specific purpose of funding out-of- health among Native communities and involves tribes in that 12 pocket insurance co-payments for Native American house- process. Further, it preserves a tax immunity for insurance holds with incomes that do not exceed 300 percent of the or other health care assistance provided by tribes for tribal 13 poverty line.3 members. The federal government has trust and treaty obligations Two key mandates of the ACA to Native Americans and the need for improved health care services in Indian Country is extraordinary. As a result, Within the ACA, Congress created a new system for Congress went to significant lengths to create legislation that health care aimed at providing insurance coverage for most

Page 18 September 2015 Americans. Generally, the law is structured around two key that block Native Americans from accessing important benefits mandates which require most Americans to have health insur- that Congress provided. These regulations create a circum- ance: (1) the individual mandate; and (2) the Large Employer stance where a Native American who is employed by a tribe mandate. Nevertheless, Congress approached health care for (with over 50 employees) is only eligible for large employer Native Americans in a way that departs from this overarching group coverage. This large employer coverage does not structure and is not driven by the application of individual or provide either the Cost-Sharing Exemption or Premium Tax Large Employer mandates. Credits. Simultaneously, the regulations disqualify the Native The individual mandate obligates most people to pur- American employee from obtaining a policy on the exchange chase insurance or face tax penalties.14 Congress made Native that would otherwise provide the Cost-Sharing Exemption Americans exempt from the individual mandate.15 This ex- and Premium Tax Credits, based (evidently) on the mistaken emption is in recognition of treaty and trust obligations which presumption that the Native American employee will have require the federal government to provide health care to Native access to equivalent benefits and coverage on a large employer Americans, and builds on an established system of regulations plan. Many tribal members cannot afford to purchase policies and services provided through the IHS that pre-dates the ACA. offered by a large employer, especially when doing so means The large employer mandate16 obligates certain employ- they must also pay expensive deductibles and co-payments. ers with more than 50 employees to provide a qualified health Instead, members may decline to purchase health insurance insurance plan or face tax penalties. Indian Tribes are not and turn back toward reliance on the limited services provided specified in the statutory definition of a large employer that is by IHS. Tribes could face substantial financial penalties if they subject to the mandate.17 However, the IRS and U.S. Health choose not to comply with the large employer mandate. and Human Services (HHS) now include Indian tribes in a The regulations implementing the large employer mandate regulatory definition of “large employer.” fail to recognize the unique status of tribes and tribal members The IRS promulgated three final regulations – 26 C.F.R. under the ACA. The agency regulations relegate tribal-member §54.4980H-1,18 26 C.F.R. §301.6056-1,19 and 26 C.F.R. §1.6055- employees of tribal organizations to a generic category of large 120 – that deem Indian governments to be “large employers” for employers, erasing the distinction recognized by Congress. purposes of the ACA. The IRS asserts that the large employer mandate applies to “government entities,” including “Indian Does King v. Burwell impact Indian Country? tribal government employers” and promulgated regulations The recent Supreme Court ruling in King v. Burwell means to that effect. See IRS Questions and Answers on Employer that tribal members with health insurance in states that use the Shared Responsibility Provisions Under the Affordable Care federal “exchange” can continue to obtain their policies there, Act.21 One regulation includes tribal agencies and instrumen- which is good news. But the IRS and HHS continue to block talities22 and another regulation reserves the issue for another tribal members who work for a tribe with over 50 employees day.23 from the exemption from payment of deductibles and copay- How do new rules block benefits for Indians? ments, which are available to other tribal members who do not work for a large employer. The ACA mandates that a large employer offer policies for their employees and their dependents on certain terms. CONCLUSION Generally, the cost of such policies cannot exceed 9.5 percent Application of the large employer mandate to tribes by of the employee’s household income.24 A large employer that regulation is contrary to the intent of Congress because it con- does not offer qualified policies faces fines and penalties for flicts with treaty obligations and the federal system of health failing to do so.25 Policies available through a large employer care incentives for Indians. It blocks Native Americans from offer neither the §1401 Premium Tax Credits nor the §1402(d) the Cost-Sharing Exemption (and the Premium Tax Credit), (1) Cost Sharing Exemption for Indians. As a result, the new exposes Tribes to penalties if they choose not to comply with regulations block the benefits Congress intended for Native the large employer mandate, increases financial pressure on employees of large tribal employers. efforts by tribes to help provide affordable health care, reduces The Obama Administration has begun to implement the IHS budgets and services by eliminating insurance policies regulations which include Indian tribes in the definition of as third-party billing sources, increases insurance costs and Large Employer. People who are employed by a large employer reduces coverage for Indian people, and drives tribal members that offers qualified plans may choose to purchase insurance back toward reliance on the underfunded IHS system. Health on the exchange instead of through their large employer, but care providers will be burdened by greater numbers of unin- in that event, those individuals are still not eligible for §1401 sured patients. Premium Tax Credits to subsidize their health care costs. Consistent with its separate obligations to Indians and Moreover, under the new regulations, tribal members living its special treatment of Indian health care issues, Congress below 300 percent of poverty will also be blocked from the intended Native Americans to obtain insurance policies and §1402(d)(1) Cost Sharing Exemption if they are employed by a benefits available to them through the exchange. Coordinated large employer. lobbying efforts by Indian Country are needed to help resolve In fashioning regulations expanding the large employer these problems. provision of the ACA to include Indian tribes, the Obama Administration has, perhaps inadvertently, created barriers Tribes, page 29 www.montanabar.org Page 19 Feature Article | Affordable Care Act New ACA informational reporting requirements: What you need to know This article is part of the continual effort by the State Bar of Montana Health Law Section to keep lawyers informed of cur- More on Affordable Care Act rent events with respect to the health care industry. Congress exempted American Indians from payment of health insurance deductibles and copays under the Patient By Kristy Buckley Protection and Affordable Care Act, but recent IRS rules prevent tribal members from using this exemption if they Do not delay. work for a “large employer. Tribes are beginning to take That should be your primary message to business clients who are trying to decipher the brand new Affordable Care Act (ACA) a closer look at problems created by these new rules. See reporting requirements. The new reporting requirements are due page 18 for more. to each employee1 by Jan. 31, 2016, and to the Internal Revenue Service on Feb. 29, 2016, if paper filed or March 31, 2016, if already gathered everything that they need to report. e-filed. The new IRS forms are informational2 only and are meant to B. Small employers with a self-funded group provide the IRS with a tracking system for individuals covered health plan: Not too hard, B-Series forms and offers of coverage on employer group health plans. Certain Small employers will sometimes be part of an association small employers will report using the ‘B-Series’ [Forms 1094-B group health plan that pays benefits out of a trust (self-funded) or and 1095-B] of forms and large employers will report using the will sometimes cover employees’ medical costs out of employer ‘C-Series’ [Forms 1094-C and 1095-C] of forms. Even though the general assets (also self-funded). Small self-funded plans have a deadlines seem reasonably far in advance, employers should not reporting obligation at the employer level and will be required to delay in gathering relevant data and tracking employee health use the “B-Series” forms. The forms are not too burdensome in coverage. Final data will not be complete until Dec. 31, which will terms of information gathering, but small employers should be not leave much time for an employer’s learning curve in order to prepared to have Social Security numbers on every person who is meet its January deadline. covered under the health plan (employees, covered spouses and A general practitioner can take a simplified approach to these covered dependents). Some of the more challenging questions new forms by roughly dividing your business clients into three involve determining whether the plan is self-funded and carefully major categories: (1) small employers that sponsor a fully in- following the instructions despite some misleading headings on sured group health plan; (2) small employers that sponsor a self- the forms. funded group health plan, even partially; and (3) large employers. Some of you may recall that a small employer is one that employs Large Employers: Complicated and fewer than 50 full-time equivalent employees, as that concept is data-intensive, C-Series forms defined under the ACA. Large employers should have started collecting the neces- A. Small employers with a fully insured group sary records, data and tracking already. The C-Series forms will health plan: Easy Street, mostly require monthly tracking for all (1) full-time employees, (2) covered non-employees, and (3) covered part-time employees. Small-employer clients that offer an insurance product for Monthly information will include dates when health coverage medical benefits to employees will likely enjoy limited exposure is offered, dates when a person enrolls in health coverage, and to the new ACA reporting requirements. Small fully insured several different codes to indicate the levels of coverage and offers plans are reported by the insurance company, not the employer. made. Large employers must collect Social Security numbers for Insurance companies may turn back to small employers if the in- all employees, dependents and spouses that are covered (includ- surance company is missing information, but most insurers have ing covered non-employees, such as directors). The C-Series 1 The forms are technically due to as follows: (1) for small employers reporting on forms are meant to provide the IRS with additional ACA com- the B-Series, forms are due to “responsible individuals” and (2) for large employers pliance tracking to determine whether any penalties might be reporting on the C-Series, forms are due to (i) full-time employees; (ii) covered part-time required under the ACA employer mandate. Finally, the C-Series employees; and (iii) covered non-employees (such as directors). The term “responsible individual” includes each person who is a primary insured person on the policy, which is forms will cross-reference against any employees who were typically an employee. 2 Examples of other types of informational forms include the Form W-2 (uses Form W-3 Reporting, page 26 for transmission) and most Forms 1099.

Page 20 September 2015 Feature Article | Elder Assistance Montana’s Area Agencies on Aging support older adults to live and thrive at home This article is part of the State Bar of • Respite, training and other support Montana Elder Assistance Committee’s for informal caregivers (family and efforts to keep lawyers informed of current friends) events with respect to elder. • Transportation • Elder abuse prevention By Lisa Sheppard • Information and referral to a wide Flathead County Agency on Aging range of services and benefits Although all of Montana’s agen- The country’s aging population is cies on aging and aging and disability exploding, as more than 10,000 people resource centers provide core services, turn 65 each day. Montana is aging more the OAA allows for a flexible, locally rapidly than most and is poised to be- driven, person-centered approach to come fourth in the nation in the number service delivery. Within certain param- of older adults per capita. In 2013, 16 eters, providers can be creative in their percent of all Montanans were age 65 or response to community and individual older and 25 percent were age 60 or older. needs. Additionally, many offer non- By 2020, adults 60 plus will represent 28 OAA services as well, such as veterans percent of the state’s population, growing services, Medicaid-funded home and to 31 percent by 2030. For some rural community-based services and national and frontier communities, older adults service programs like the Retired and will represent 40-70 percent of their Senior Volunteer Program and foster population. This demographic shift is un- grandparents. As a result, service avail- precedented and likely to be far-reaching ability may differ from area to area. in its social and economic implications. Eligibility for services is simple. OAA The overwhelming majority of in place, honoring their choices and services are for adults age 60 or older, Americans want to age in place in their preventing costly institutionalization. their spouses and caregivers. Aging and homes and communities, but current The passage of the OAA set in motion Disability Resource Centers also serve in- and emerging challenges make this far the development of a vast national net- dividuals with disabilities age 18 or older from a given. While Americans are living work of providers charged with offering and their families or caregivers. Unlike longer, the increase in older adults pro- a wide range of supports to those 60 and Medicaid and many other services, eligi- portional to the population as a whole, older, and in recent years to adults of all bility is not based on income, but agen- the increase in the number of people ages with disabilities. In Montana, the cies on aging and aging and disability living long-term with chronic condi- Department of Public Health and Human resource centers do focus on those with tions, the rise in Alzheimer’s disease and Services contracts with10 Area Agencies the most economic or social need. Meals other forms of dementia, the high costs on Aging and Aging and Disability and information and assistance services of long-term care services, the shortage Resource Centers to provide services are provided on a donation basis. Other of informal and paid caregivers and the at the local level. Funding consists of OAA services may be offered on a sliding prevalence of economic insecurity among federal, state and local funds, client con- fee scale or other fee-for-service basis. older adults combine to make the future tributions, grants, contacts and private Non-OAA services have varying costs uncertain. donations. and eligibility criteria. Fifty years ago on July 14, 1965, OAA core services include: To contact your local agency on President Lyndon Johnson signed into • Meals served at local sites, such as aging, call 1-800-551-3191. To learn law Medicare, Medicaid and the Older senior or community centers more about aging issues and services Americans Act (OAA), creating the foun- • Home-delivered meals, better known in Montana, visit the DPHHS website dation of the system that today supports as Meals on Wheels at http://dphhs.mt.gov/sltc/services/ older adults to maintain their health and • Preventive health services, such as fall- communityservices/cswaiver. remain in their homes and communi- prevention classes Lisa Sheppard, MSSW, MPAff, is direc- ties. Now more than ever this system is • In-home care, such as housekeeping tor of Area IX/Flathead County Agency on critical to enabling older adults to age and personal care Aging www.montanabar.org Page 21 Feature Article | Duty to Communicate Meeting a client’s expectations for communication is all in the details

By Mark Bassingthwaighte ALPS

MRPC Rule 1.4 Communication is one of those rules that seems clear on its face. We all know that as lawyers we are to keep our clients reasonably informed about the status of their matters as well as to promptly comply with reasonable requests for information. There’s nothing unexpected there. Most also know that the rule further states that a lawyer shall explain a matter to the extent reasonably necessary to permit the cli- ent to make informed decisions regarding the representation. Maybe I’m just not seeing it, but all this seems rather straight forward to me. If it were that simple, however, why do attorneys continue to face disciplinary complaints and malpractice claims in the numbers that they do for simply failing to communi- cate? Perhaps there’s more to the rule than what is generally remembered. Meeting an attorney’s duties under MRPC Rule 1.4 go beyond return- As I consider the implications of this rule, I have found it ing phone calls and forwarding copies of documents. Attorneys should helpful to analyze the rule from a slightly different perspec- talk with their clients and try to determine their expectations from the tive than what’s commonly done. So often, what we remember outset. the rule as saying is taken at face value and discussed from the perspective of what needs to be communicated and when. One often hears of the importance of returning phone calls in a timely fashion, forwarding to the client copies of all relevant With all this in mind, what are the ramifications of this documents, providing regular and detailed billing, and person- rule day to day for the practicing attorney? Certainly promptly ally visiting with the client to explain the status of a matter returning phones calls, timely responding to client requests for sufficient to allow the client to make informed decisions when information, forwarding copies of documents, and the regular deemed necessary. While all of this is quite important, I would sending of detailed bills are a given. But there is more. An at- like to come at the rule from the perspective of who gets to de- torney should keep clients informed of all court dates, all filings, cide what. This helps me keep roles straight and remember who and all offers to settle or mediate. Also, don’t overlook telling has employed whom, which is key given other language in the clients about any changes to your contact information such as a rule which isn’t as often recalled. change in your address, phone number, or email. Yes, perhaps Beyond what is set forth above, Rule 1.4 also states that a a shift in perspective wasn’t necessary to develop this list thus lawyer shall inform the client of any decision or circumstance far; but I will share that many attorneys regularly struggle with that requires the client’s informed consent under the Rules. following through on just these basics. Typical rationalizations Now, Rule 1.2 Scope of Representation comes into play as do or excuses include the client doesn’t really need to be bothered several conflict rules at a minimum. In addition, the Rule tells with this, I know what my client will say or decide anyway, I us that a lawyer is to reasonably consult with the client about don’t have the time to tell them, the client doesn’t want to be the means by which the client’s objectives are to be accom- billed for the time it will take, etc. In short, attorneys start to plished. For me, this language shifts the emphasis of the rule. run with assumptions and rationalizations when it comes to the The rule is no longer about sharing what you think the client basics of effective communication, and this can be a dangerous needs to know; but rather it is really about what does your play. client reasonably expect to be told throughout the course of However, with the shift in focus in mind, how might this representation. I believe there is real value in shifting the focus list of suggested practices expand? Consider scope of repre- away from what you, as the attorney, thinks should be shared sentation. As an attorney being hired to handle litigation for and moving it toward what any client would reasonably expect a financial institution, it is easy to understand how one might their attorney to share. focus solely on the litigation. On the other hand, the client who

Page 22 September 2015 has hired the attorney may be expecting their attorney to see the number of attorneys simply never raise the issue. Some don’t “big picture” and keep them informed about everything in play see the need. Some see it as cost prohibitive, and some simply to include issue spotting. What if there is a regulatory report- have no idea how to do it and/or no intention of ever going ing and/or compliance issue peripheral to the litigation? If the there in their own practice. Now focus on the client, haven’t attorney is not up to handling the related issue she must say so these attorneys actually made a decision that properly belongs because the client will often reasonably expect their attorney to the client? I would argue that indeed they have. In fact we to not only issue spot but to take care of the related matter have reached a time where a follow-up attorney, who was hired or at least inform them of anything that the attorney is not to review a file of one of these attorneys after their client did competent to or perhaps prepared to handle so that appropri- experience an eventual unintended consequence from their ate attention can be given to that peripheral issue. This is one attorney’s failure to discuss let alone conduct electronic data reason why documenting scope of representation is critically discovery, may actually tell the client that not only does he view important with all clients. Again, it is all about considering the situation as a failure to communicate but there may also be what clients would reasonably expect to be told. a viable malpractice claim here. So now we can expand our list of ramifications to include I can’t create a list of everything that an attorney should the following. Clients should be told what the scope of repre- tell a client. I can only give examples of things to think about sentation is and also what it isn’t; they should be informed of and a perspective from which to begin to address the issue. their rights, especially in criminal matters; the ramifications of What clients expect to be told will vary with every client and on any actual or potential conflict issues should be fully explained every matter. Talk with your clients and try to determine their to clients prior to their agreeing to representation; and client expectations from the outset. The bottom line is this: Clients permission should be obtained for granting extensions of time do expect to be fully informed and attorneys have an ethical to adverse parties, stipulating to evidence or testimony, agree- obligation to meet that expectation. Here’s the kicker, however. ing to continuances, and for making and/or Your communication efforts must be handled rejecting settlement offers. Clients expect to be in a way that seeks to assure that the client told when their matter has concluded and what, understands and comprehends all that is being if anything, they must yet do. Whether through communicated about all that must be decided. inability or oversight, clients must also be in- The bottom line is Forwarding copies isn’t enough. This is how a formed of a failure to take action on the client’s this: Clients“ do expect jury is going to see it so once again, it’s all in the matter or that their case has been dismissed. to be fully informed details. Clients do reasonably expect to be informed and attorneys have an about any and all of the above whether it’s good ethical obligation to news or bad. meet that expectation. Mark Bassingthwaighte, Esq., is the Risk Manager for ALPS Property & Casualty Insurance When thinking about communication, this Company. He is available to answer risk manage- shift in perspective helps to keep the empha- ment questions and can be reached at 1-800-367- sis on the client and the fact that we, as the 2577 or [email protected]. attorney, are in the client’s employ. Many decisions are for the client to make. This reality does not in ”DISCLAIMER: ALPS presents this article as general informa- any way, shape or form minimize your role as the attorney. tion only. While ALPS strives to provide accurate information, In fact, I believe this perspective helps to elevate an attorney’s ALPS expressly disclaims any guarantee or assurance that this role. Consider the word “counselor” in light of Rule 1.4 and ask publication or document is complete or accurate. Therefore, in yourself what might that word mean in daily practice? For me providing this publication or document, ALPS expressly disclaims it means that a lawyer is to advise the client about the legal and any warranty of any kind, whether express or implied, including, practical aspects of any given matter. The lawyer is to identify but not limited to, the implied warranties of merchantability, and evaluate alternative solutions pointing out the positives and fitness for a particular purpose, or non-infringement. negatives of each. The goal is to enable the client “…to partici- Further, by making this publication or document avail- pate intelligently in decisions concerning the objectives of the able, ALPS is not rendering legal or other professional advice or representation and the means by which they are to be pursued.” services and this publication or document should not be relied (See Comment 5 to Rule 1.4 of the ABA Model Rules.) This upon as a substitute for such legal or other professional advice or intended outcome does require that we approach communica- services. ALPS warns that this publication or document should tion from the client’s perspective. With all clients, ask yourself not be used or relied upon as a basis for any decision or action just what does the client need to know to be able to make intel- that may affect your professional practice, business or personal ligent decisions? As the attorney, if this question is never asked affairs. Instead, ALPS highly recommends that you consult and answered with every client, you are taking an unnecessary an attorney or other professional before making any decisions risk that can and will at times lead to disastrous outcomes in the regarding the subject matter of this publication or document. malpractice and disciplinary arenas. ALPS Corporation and its subsidiaries, affiliates and related enti- Let’s take this point one step further. Assume that you have ties shall not be responsible for any loss or damage sustained by taken on a regular run-of-the- mill divorce client. Should you any person who uses or relies upon the publication or document discuss the option of conducting electronic data discovery? A presented herein. www.montanabar.org Page 23 Feature Article | Montana’s ABLE Act Life-changing legislation passed in Montana for citizens with disabilities burdens that aren’t covered by government poverty programs, and the state should not stand in the way of these individu- Senate Bill 399 allows als saving their own money to be used for disability-related expenses. more choice, control over The federal ABLE Act was passed by Congress with sup- port from the entire Montana delegation and signed into law in December of 2014. The new law required states to enact spending on qualified enabling legislation at the state level in order for their citizens to take advantage of these provisions. That left supporters in disability expenses Montana, one of only five states with biennial sessions, little time to craft state legislation, educate lawmakers and build a bi-partisan coalition. Despite our timing challenges, four legislative hearings and By Jon Bennion, Aimee Grmoljez and Mike Green little guidance from the federal government on implementa- tion, a diverse group of advocates were able to pass the bill, the The Montana Legislature often gets a bad rap for conten- tenth ABLE Act in the country, with near-unanimous legislative tious, partisan battles on a handful of high-profile issues, but support and have Governor Bullock to sign the bill. To date __ many success stories go untold. The 2015 legislative session had states have passed ABLE Acts and we applaud these efforts to many bills with supermajority support in votes by both houses. allow for individuals with disabilities the same ability to save for Surprised? Don’t be. Legislators work hard out of sense of duty their specific future needs as those individuals with education and commitment to the public good and not for money and funds in 529 plans can currently save for their future needs. glory. In this case we want to share the glory of one story and Key Elements of the Montana ABLE Act Include: n how you can be a part of the story now that the bill has become Once implemented, the program will be run very similarly law. This story can truly be a life-changer for one of your cli- to Montana’s Family Education Savings Program as established ents, or friends or family members with disabilities. It involves in Montana Code Annotated 15-62-101. One or more private the enactment of Senate Bill 399, Montana’s Achieving a Better financial institutions will be selected to house the accounts. Life Experience (ABLE) Act, sponsored by Sen. Fred Thomas, Montana will be able to team with other states to offer ABLE R-Stevensville, and co-sponsored by Sens. Mary Caferro, D– Accounts as widely and efficiently as possible. n Helena) and Cynthia Wolken, D–Missoula. Any person, such as a family member, friend or the per- The new law allows eligible individuals with disabilities son with a disability, may contribute to an ABLE account for an the ability to establish “ABLE accounts’’ (also known as 529A eligible beneficiary. n accounts) that resemble the 529 qualified tuition programs that An ABLE account may not receive annual contributions have existed under the tax code since 1996. The new ABLE exceeding the annual federal gift-tax exemption ($14,000 in accounts will allow more individual choice and control over 2015). n spending on qualified disability expenses and limited invest- Unlike some states with government-run ABLE pro- ment decisions, while protecting eligibility for Medicaid, grams, the Montana ABLE Act will be carried out through a Supplemental Security Income, and other important benefits public-private partnership using selected financial institutions for people with disabilities. to serve as depositories for individuals’ savings accounts estab- Why does an individual need an ABLE Account? Without lished pursuant to the Act. The Department of Public Health these accounts, many people with disabilities have very limited and Human Services will act as the government partner, with avenues to save and allow for further independence. Assets input from a committee, to help select the financial institutions in an ABLE account and distributions from the account for that could act as depositories and recommend policies. n qualifying expenses would be disregarded or receive special An eligible individual is a person (1) who is entitled treatment when determining the beneficiary’s eligibility for to benefits on the basis of disability or blindness under the most public-means-tested benefits. In short, the law recognizes Supplemental Security Income (SSI) program or under the the obvious — people with disabilities face added costs and Social Security disability, retirement and survivors program OR (2) who submits certification that meets the criteria for a

Page 24 September 2015 disability certification. An eligible individual’s disability must $100,000, the individual’s SSI benefits will not be terminated, have occurred before the age 26. but instead will be suspended until such time as the individual’s n Qualified disability expenses are any expenses paid for the resources fall below $100,000. Further, it is intended that benefit of the designated beneficiary and related to his/her dis- distributions expended for housing purposes will receive the ability, including: education, housing, transportation, employ- same treatment which all housing costs paid by outside sources ment training and support, assistive technology and personal receive. support services, health, prevention and wellness, financial n Medicaid Eligibility: A beneficiary will not lose eligibility management and administrative services, legal fees, expenses for Medicaid based on the assets held in their ABLE account, for oversight and monitoring, funeral and burial expenses, and even during the time that SSI benefits are suspended (as de- other expenses, which are approved by the Secretary of the scribed above for an account with over $100,000). Treasury under regulations. How can you be part of the story? Once fully implemented, n Earnings on an ABLE account and distributions from this bill can improve the lives of hundreds, if not thousands, the account for qualified disability expenses do not count as of Montanans with disabilities. This new opportunity opens taxable income of the contributor or the eligible beneficiary. doors previously closed, and gives attorneys one more tool as Contributions to an ABLE account must be made in cash. they help clients with disabilities navigate through the com- n The Act provides a Montana income tax deduction of up plex world of law, tax and government programs. Please be to $3,000 per year for contributions, which is identical to the sure you seek more information on ABLE accounts (which the treatment for 529 accounts. Department of Health and Human Services is drafting rules n Assets in an ABLE account may be rolled over without now to implement) to ensure you can fully inform the people penalty into another ABLE account for either the designated who rely on you for advice on these matters. Thank your legisla- beneficiary (for instance, if moving to another state) or any of tor for passing this new law and thank you for being part of this the beneficiary’s qualifying family members. continued success story of the 2015 Legislature. n Supplemental Security Income (SSI): For SSI, only the first $100,000 in an ABLE account will be disregarded. Assets Jon Bennion is Deputy Attorney General in the Montana Department of Justice. Aimee Grmoljez and Mike Green are part- above $100,000 will count as resources under SSI. In addition, ners at Crowley Fleck. if the designated beneficiary’s ABLE account balance exceeds

www.montanabar.org Page 25 Reporting, from page 20 up to $1,500,000. Bottom Kristy Buckley is a part- Loble. If you have questions line, encourage your employer ner in the Bozeman office of about Affordable Care Act com- given tax credits (also called clients to begin evaluating Crowley Fleck PLLP, practicing pliance, you can contact Buckley subsidies) for health coverage in employee benefits law. The at 406-522-4522 or kbuckley@ their circumstances to plan Affordable Care Act compli- crowleyfleck.com or Loble at obtained on the marketplace. If ahead for new ACA reporting a large employer has so many ance team at Crowley includes 406-457-2033 or sloble@ requirements. Buckley and her partner, Sarah crowleyfleck.com. employees that supplying the forms in hardcopy would be unduly burdensome, then the employer should begin its ap- Mark your calendars! The Alexander Blewett III School of Law at the University of Montana invites you to plication and testing process to participate in the enable its use of the IRS e-filing portal and should evaluate the requirements necessary for pro- Career Services viding the forms in electronic Fall 2015 To advertise a position and set up Interview 2nd and an interview schedule: version to each individual. 3rd year students Even though there are no On-Campus VISIT: specific ACA penalties that for intern, law clerk, and associate http://www.umt.edu/law/ apply to these informational Interview careerservices/employers/default. returns, the general IRS penal- positions during php ties associated with informa- our semi-annual Weekend LOG ONTO SYMPLICITY: tional returns will still apply. on-campus https://law-umt-csm.symplicity.com For example, a penalty for interview program. failure to file with the IRS can EMAIL: be assessed at $100 per return, [email protected] up to $1,500,000. In addition, or a penalty for failure to furnish CALL: statements to individuals can 406.243.5598 be assessed at $100 per return,

Page 26 September 2015 Would you like to boost your income while serving low- and moderate-income Montanans? We invite you to participate in the Modest Means program {which the State Bar sponsors}. If you aren’t familiar with Modest Means, it’s a reduced-fee civil representation program. When Montana Legal Services is unable to serve a client due to a conflict of interest, a lack of available assistance, or if client income is slightly above Montana Legal Services Association guidelines, they refer that person to the State Bar. We will then refer them to attorneys like you.

What are the benefits of joining Modest Means? While you are not required to accept a particular case, there are certainly benefits! You are covered by the Montana Legal Services malpractice insurance, when you spend 50 hours on Modest Means and / or Pro Bono work (you’ll need to track your time and let us know), you will receive a free CLE certificate to attend any State Bar sponsored CLE. State Bar Bookstore Law Manuals are available to you at a discount and attorney mentors can be provided. If you’re unfamiliar with a particular type of case, Modest Means can provide you with an experienced attorney mentor to help you expand your knowledge.

Questions? Please email: Kathie Lynch at [email protected] or Erin Farris at [email protected] You can also call us at 442-7660.

# Are You Interested in Joining The Modest Means Program? To get started, please fill in your contact info and mail to: Modest Means, State Bar of Montana, PO Box 577, Helena, MT 59624. You can also email your contact info to Kathie Lynch -- [email protected]

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Email: ______www.montanabar.org Page 27 Obituaries Ask was attorney for 40 years, Con-Con delegate Thomas Martin Ask was born July 19, 1925, in Forsyth and greens course. His other hobby was fishing, and his once a year died July 18, 2015, in Polson, just short of his 90th birthday. He trip to Canada or Alaska with several friends was a special time was raised on a ranch in eastern Montana, and from a very early for him. age, helped his father with cattle and farm chores. When it was time to retire, Tom and Peg moved to Polson After graduating from high school, he enlisted in the Army to a home on Flathead Lake where Tom enjoyed years of golfing and was sent to, what was known in World War II, as the Asian and fishing. It was a place where he invited friends and family Theater of War. As the war ended, he was stationed in Japan for and especially grandchildren and great-grandchildren. two years returning to civilian life with the rank Tom was preceded in death by his parents, two sisters, two of master sergeant (at age 19!). nephews, and a grand nephew. Tom then enrolled at the University of He is survived by his wife Margaret, four children, Catherine Montana, earned an undergraduate degree in Hasskamp (Charles), Thomas Dean Ask (Peggy), Richard business and graduated from law school in 1953. Brearley Ask (Tanya), Carolyn Rohrer (Steven), 10 grand- Tom began his law practice in Roundup and con- children, Rebecca Thompson (Evan), Josh Hasskamp (Jenna), Ask tinued it there for 40 years. He married Margaret Adam Hasskamp, Kim Leiser (Jake), Kate Moffet (Ryan), James Dean (Peg) and together they had four children Ask (Mary Jane), Ben Ask (Aimee), Signe Ask (Dana Driggs), who were his greatest joy. Megan Rohrer, Molly Rohrer, and 10 great-grandchildren, In his professional life he considered his finest achieve- Mason and Tanner Leiser, Ali and Regan Moffet, Betsy and ment to be his contribution as a member of the Constitutional James Ask, Caleb and Liam Ask, Brearley and Torstein Driggs. Convention. His service as a member of its committee on local Memories and condolences may be sent to the family at government will affect the state of Montana for years to come. www.thelakefuneralhomeandcrematory.com. His time in Roundup included 12 years as county attorney and Memorials may be sent to St. Andrew’s Episcopal Church, several as assistant county attorney, followed by years as a de- 110 6th Avenue East, Polson, MT 59860; Partners in Home fense attorney. (He often found himself defending some of the Care Hospice, #1 14th Avenue West, Polson, MT 59860 or same people he once prosecuted.) American Cancer.org. He loved the game of golf and was instrumental in chang- Arrangements are under the direction of The Lake Funeral ing Roundup’s old sand greens into a very nice nine hole, grass Home and Crematory.

Joseph Reber Angeles where he had a private law practice. Throughout his life Joe was a collector. As a child he LOS ANGELES – Joseph Edward Reber was born Aug. 9, amassed a collection of stamps and later 78 RPM jazz records. 1940, in Butte, the eldest son of Joe and Terry Reber. Joe was a In high school his love of history drew him to collecting antique joyful and enthusiastic lover of life who was taken way too soon guns of the Civil War and the Old West. As an adult his love by the ravages of Alzheimer’s disease. and involvement with the arts led him to be a collector of art. Joe is survived by the love of his life, Nikki Harjo, whom he Joe was a member of many boards of director that were met in 2002. They married in 2008 and he adopt- involved with his eclectic interests music, the arts and history. ed her daughter Rebecca. Nikki lovingly cared for He had a 1952 MG sports car that he loved and he gave Joe in a very special way as his disease progressed. thrilling rides to his nieces and nephews, through the years. His Even during those difficult years Nikki remained nieces and nephews called him “Uncle Gum,” for the sticks of his most lovely wife and dancing partner. She was gum he would hand out lovingly to them. He was a thoughtful truly a gift to him from God. uncle and cousin, and sent cards and letters of encouragement Reber Joe spent his early years at University of to them throughout his life. Montana where he became a member of the He is survived by his loving wife Nikki; his daughter Sigma Nu Fraternity and then a graduate of the U Rebecca and his siblings, Bobbie Corette of Bigfork, Susan Orr of M Law School. He practiced law in Helena where he became and Dianna Riley of Missoula, and Bryant Reber of Denver. a member of the State Historical Society, interested in the pres- He is also survived by many cousins, nieces and nephews and ervation of historical buildings, especially the Diamond Block. the many friends he made through the years. All will carry fond Joe acquired the Broadwater Cupola from atop the fa- memories and he will be missed by all. mous Hotel and in July of 2002, with his dad present, Reber Nikki would like to thank Bentley Manor Dementia Care Broadwater Cupola Park was dedicated to the city of Helena, in Los Angeles for their attention to Joe and also Roze Room preserving Helena history. Joe was also a member of the Hospice. Any memorials can be sent to Opica Adult Day Care, Montana National Guard. He later advanced his education with where Joe loved to paint. The Website address is opica.org/ a Tax Law degree from New York University, and moved to Los modx/.

Page 28 September 2015 17 . 26 U.S.C.A. §4980H(c)(2)(A) as amended by §1513 of the Patient Protection and Tribes, from page 19 Affordable Care Act. 18 . On Feb. 12, 2014, the IRS promulgated regulation 26 C.F.R. §54.4980H-1 within its final regulations regarding “Shared Responsibility for Employers regarding Health Support for the bill sponsored by Sen. Daines is a great Coverage.” The regulation includes Indian tribal governments, agencies or instrumen- place to start. talities as a “Governmental entity.” The regulation took effect on January 1, 2015. See F.R. Vol. 79, No. 29, 8543 at 8544, 8577-80 (Feb. 12, 2014). This article is not intended and should not be relied upon to 19 . On March 10, 2014, the IRS promulgated regulation 26 C.F.R. §301.6056-1 provide legal advice. The authors represent the Tribe in Northern within its final regulations regarding “Information Reporting by Applicable Large Employers on Health Insurance Coverage Offered under EmployerSponsored Plans.” Arapaho Tribe v. Burwell, a challenge to these IRS regulations. They This final regulation incorporates the definition from 26 C.F.R. §54.4980H-1(a)(4) and can be contacted through Baldwin, Crocker & Rudd, P.C. (bcrattor- 26 U.S.C. §4980H(c)(2), which establish a Large Employer to be “... an employer who neys.com), a firm emphasizing the practice of Indian law. employed an average of at least 50 full-time employees on business days during the preceding calendar year.” The regulation includes Indian tribal governments and ENDNOTES: subdivisions as “Governmental units” subject to the Large Employer mandate. (The IRS has reserved for a later day its definition of agency or instrumentality.) This regulation 1 . ACA §1401 et seq., 26 U.S.C. 36B. also took effect on January 1, 2015. See F.R. Vol. 79, No. 46, 13231 at 13232, 13234, and 2 . ACA §1402(b)(2), 42 U.S.C. §18071. 13247-48 (March 10, 2014). 3 . ACA §1402(d), 42 U.S.C. §18071. 20 . On March 10, 2014, the IRS promulgated regulation 26 C.F.R. §1.6055-1 within 4 . See Committee Report, Indian Health Care Improvement Act (IHCIA) (Congress its final regulations regarding “Information Reporting of Minimal Essential Coverage.” expressly recognizes “the Federal Government’s long-standing obligations under law- These regulations set out guidance for providers of minimal essential coverage, includ- ful treaties with the Indian nations for the provision to them of health care services”); ing employers. It includes Indian tribal governments as a “government unit.” (The IRS 25 U.S.C. §1602 (Indian health care laws spring from the United States’ “special trust has reserved for a later date the definition of agency or instrumentality of that unit.) responsibilities and legal obligations to Indians”). This regulation also took effect on January 1, 2015. See F.R. Vol. 79, No. 46, 13220 at 5 . ACA §10221; 25 U.S.C. §1601 et seq. 13222 and 13226, 13227 (March 10, 2014). 6 . ACA §1501(b). 21 . Available at http://www.irs.gov/uac/Newsroom/QuestionsandAnswerson 7 . ACA §1402(d). EmployerSharedResponsibilityProvisionsUndertheAffordableCareAct. 8 . ACA §2902. 22 . 26 C.F.R. §54.4980H-1(a)(23); Treas. Reg. §54.4980H-1. 9 . ACA §3314. 23 . Department of Treasury, Information Reporting by Applicable Large 10 . ACA §1311(D). Employers on Health Insurance Coverage Offered Under EmployerSponsored Plans, 11 . ACA §2951, §3505(a). F.R. Vol. 79, No. 46, 13231, 13234 (Preamble) (VII)(F) (March 10, 2014) (noting that “the 12 . ACA §4001 et seq, §5101 et seq. regulations do not define the term agency or instrumentality of a governmental unit for 13 . ACA §9021. the purpose of section 6056 ...); see also 26 C.F.R. §301.6056-1, Treas. Reg. §301.6056-1(b) 14 . ACA §5000A, 26 U.S.C. §5000A (7)-(8) (reserving on the definition of agency or instrumentality of a government unit). 15 . ACA §5000A, 26 U.S.C. §5000A. 24 . See ACA §5000A(e)(1)(B), 26 U.S.C. §36B(c)(2)(C)(i). 16 . ACA §1513, 26 U.S.C. §4980H 25 . ACA §1513, 26 U.S.C. §4980H.

www.montanabar.org Page 29 Job Postings and Classified Advertisements CLASSIFIEDS Contact | Joe Menden at [email protected] or call him at (406) 447-2200.

ATTORNEYS Firm, P.C., Attn: Teresa Delvo, P. O. Box For application and complete details 849, Billings, MT 59103-0849. All appli- please go online at www.ci.billings. DEPUTY COUNTY ATTORNEY: Immediate cations will be confidential. mt.us or contact Human Resources at vacancy. Full-time permanent Deputy CHIEF PROSECUTOR (Assistant City (406) 237-6210. County Attorney position with the Attorney): The City of Bozeman seeks an ATTORNEY: Well established Bozeman Custer County Attorney’s Office, Miles experienced attorney with a lively work law firm seeking a tax LLM with 0-3 City. Juris Doctor degree from accred- ethic, the quality to lead, and an affinity years’ experience with emphasis in real ited law school, licensed to practice in for change to lead the City’s criminal estate, commercial law, estate planning Montana. Salary up to $70,957.31 based prosecution services. F/T career position and probate. Potential for quick ad- on 40-hour work week, dependent w/ excellent benefits. Criminal law ex- vancement to the right candidate. Send on experience. Experience preferred. perienced required. $74,902 – $82,310 cover letter, resume and law school Excellent benefits. For job description per year as earned DOQ. PREFERRED transcript to: Drysdale, McLean & Willett, and application form please contact APPLICATION DEADLINE: 5 p.m. Monday, PLLP, Attn: Andrew J. Willett, 2066 Cindy Erickson at Job Service in Miles September 15, 2014. Position open until Stadium Drive, Suite 101, Bozeman, MT City at (406) 232-8349. Applications filled. EOE/ADA/Vet Pref. See the full an- 59715, or email: awillett@dmwlawmt. accepted until position filled. Request nouncement at https://www.bozeman. com. accommodation from Custer County net/jobs. Inquiries can be emailed to PUBLIC DEFENDER: The Fort Peck Tribes Attorney Office, 1010 Main St., (406) [email protected]. are seeking an attorney for the full-time 874-3310 or fax (406) 874-3450. ADA/ BOZEMAN ATTORNEY: General practice position of Public Defender in the Fort EEO. law and litigation firm in Bozeman Peck Tribal Court. The position is in ASSOCIATE GENERAL COUNSEL: Avitus seeking an attorney for growing case Poplar, MT. Candidates must be admit- Group, a professional employer orga- load. 5+ years’ experience preferred. ted to practice in any jurisdiction. Salary nization, seeks an Associate General Compensation based on qualifications DOE. The job description is available at Counsel to support its legal department. and abilities. Please send resume and the HR office at fortpecktribes.org or This position will encompass a broad writing sample to classifieds@mon- contact Rita Weeks , [email protected]. range of legal responsibilities, including tanabar.org, with a subject line of Box (1) significant employment litigation 1509-01. PARALEGALS/LEGAL management; (2) commercial contract CIVIL DEPUTY CITY ATTORNEY: City ASSISTANTS drafting and review; (3) regulatory of Billings is seeking a Deputy City compliance; (4) M&A; and (5) providing Attorney to perform a variety of legal EXPERIENCED PARALEGAL: ALPS general support for the multiple lines of services related to municipal civil work Corporation is looking for a Paralegal business offered by Avitus Group across and may occasionally prepare and with a minimum of 5 but preferably all 50 states. One to four years’ experi- prosecute misdemeanor criminal cases 10 years progressive experience in a ence is preferred, but will consider in Municipal Court. Starting Salary: litigation environment. This position will recent law school graduates with excep- $69,025.00 - $72,428.00 annually (DOE), be in our claims department which is tional work history. Please submit your excellent benefits, including annual responsible for reviewing, monitoring, resume, cover letter, and writing sample raises based on merit until the top of and negotiating the resolution of legal (10 pages or less) to careers@avitus- the position pay scale is reached (cur- malpractice claims against our insureds. group.com. This position is located in rently $92,461.82 annually). Minimum Excellent communication, attn. to detail, Billings, MT, and applicants are encour- Qualifications: Juris doctorate from an timelines and computer skills required. aged to visit www.avitusgroup.com. American Bar Association approved Focus on the finer details is a must. If ASSOCIATE ATTORNEY: Brown Law Firm, law school; Three years of increas- you are motivated, able to manage a P.C., with offices in Billings and Missoula, ingly responsible civil legal experience; fast-paced workload and can add value is seeking an associate with 0 - 5 years’ Municipal or other government civil to multiple projects simultaneously this experience for its office in Billings. The legal experienced preferred; prosecuto- could be the right position for you. Must position will concentrate on civil de- rial experience preferred; member in work in our Missoula, Montana office. fense litigation. We offer a competitive good standing with the Montana State DOE, EEO Bar; licensed to practice law in state and salary, benefit package including profit PARALEGAL/LEGAL ASSISTANT: Well- federal courts in Montana. Application sharing and 401(K). Please send a letter established law firm on beautiful deadline: 5 p.m. Monday, Sept. 25, 2015. of application and resume to Brown Law Flathead Lake seeks half-time (20-25

Page 30 September 2015 Job Postings and Classified Advertisements hours per week) paralegal/legal assis- bresnan.net, 406-210-1133 parking. Anne, [email protected]. tant. The position could become full- RESEARCH, WRITING, SUPPORT: 406-594-1717. time in the future. Applicant must have Experienced attorneys at Strickland MEDIATION excellent communication, clerical, orga- & Baldwin, PLLP, offer legal research, nizational and personal skills and prior EXPERIENCED MEDIATOR AND writing, and support. Wilton Strickland ARBITRATOR: J. Michael Young, retired legal experience. Litigation experience focuses on civil litigation; Tim Baldwin and paralegal certification preferred, Great Falls Attorney. Contact at 406- focuses on criminal matters. We make 868-9666 or [email protected] but not required. Salary and benefits practicing law easy, profitable, and depending on experience and qualifica- enjoyable for you. To learn more, read MEDIATIONS & ARBITRATIONS: As former tions, with opportunity for increased legal articles, and obtain CLE credits, executive vice president and chief salary. Send cover letter and resume to visit www.mylegalwriting.com. counsel of ninth largest private em- Turnage Mercer & Wall, PLLP, Box 460, ployer in the U.S. and with over 45 years Polson, MT 59860, or an email to Chuck COMPLICATED CASE? I can help you legal experience, my practice focuses Wall at [email protected]. sort through issues, design a strategy, on mediation and arbitration. Available and write excellent briefs, at either the ATTORNEY SUPPORT/ as a neutral resource for complex trial or appellate level. 17+ years experi- commercial, class-action, ERISA and RESEARCH/WRITING ence in state and federal courts, includ- governmental agency disputes. Detail DATA ANALYSIS / LITIGATION SUPPORT: ing 5 years teaching at UM Law School of experience, professional associations Extract, analyze, summarize large data and 1 year clerking for Hon. D.W. Molloy. and cases provided on request. Francis sets; Independent attestation of data Let me help you help your clients. Beth J. (Hank) Raucci, 406-442-8560 or www. accuracy; Professional CPA presenta- Brennan, Brennan Law & Mediation, gsjw.com. tion of data on behalf of counsel; Expert 406-240-0145, [email protected]. testimony regarding data collection and BUSY PRACTICE? I can help. Former CONSULTANTS & EXPERTS reporting methodology; Agreed upon MSC law clerk and UM Law honors FORENSIC DOCUMENT EXAMINER: procedures. 15 years financial experi- graduate available for all types of Trained by the U.S. Secret Service and ence including: Auditor for Deloitte contract work, including legal/factual U.S. Postal Inspection Crime Lab. Retired & Touche (Seattle Office); Litigation research, brief writing, court/depo ap- from the Eugene, Ore., P.D. Qualified in Support Branch Chief; Work with KFLD, pearances, pre/post trial jury investiga- state and federal courts. Certified by the DoJ, and the Pentagon; Comptroller tions, and document review. For more American Board of forensic Document for the Montana Army National Guard; information, visit www.meguirelaw. Examiners. Full-service laboratory for Contracting Officer (PCO); Controller com; e-mail [email protected]; or handwriting, ink and paper compari- for $1B insurance company; Director call 406-442-8317. sons. Contact Jim Green, Eugene, Ore.; of Financial Reporting for $1B hospital; 888-485-0832. Website at www.docu- Operations Officer for $3B government OFFICE SPACE/SHARE mentexaminer.info. contracting group; Member of AICPA STEVENSVILLE: Professional office build- COMPUTER FORENSICS, DATA RECOVERY, Information Management & Technology ing downtown on Main Street available E-DISCOVERY: Retrieval and examina- Assurance practice group; Member for sale or lease. Detached 1 story build- tion of computer and electronically of the Montana State Society of CPAs; ing with 10-car parking lot. Approx. stored evidence by an internationally Level 3 DAWIA certification in govern- 2,800 sq. ft. leasable space includes full recognized computer forensics prac- ment contracting; Data base developer first floor and basement. Ready to oc- titioner. Certified by the International for $3B government financial services cupy modern offices, conference room Association of Computer Investigative organization. DATA WORKS OF HELENA, and reception/waiting room. Central Specialists (IACIS) as a Certified Forensic P.C., 7 West 6th Avenue, #517, Helena heat, a/c, lovely landscaping. Perfect for Computer Examiner. More than 15 years MT 59601; brad@dataworksofhelena. small firm or growing solo practitioner. of experience. Qualified as an expert com; (406) 457-5399. Contact [email protected] or call in Montana and United States District ENHANCE YOUR PRACTICE with help 917-282-9023 Courts. Practice limited to civil and ad- from an AV-rated attorney with 33 MODERN PROFESSIONAL SUITE OF ministrative matters. Preliminary review, years of broad-based experience. I can OFFICES: Desirable Cottonwood general advice, and technical questions research, write and/or edit your trial or Business Park (off McHugh & Custer). are complimentary. Jimmy Weg, CFCE, appellate briefs, analyze legal issues or Turnkey second floor with 4 upscale Weg Computer Forensics LLC, 512 S. otherwise assist with litigation. Please roomy offices (1 has kitchenette & sink). Roberts, Helena MT 59601; (406) 449- visit my new website at www.denev- First floor shared waiting area. Classy 0565 (evenings); jimmyweg@yahoo. ilegal.com to learn more. mdenevi@ 2012 construction comes with free com; www.wegcomputerforensics.com. www.montanabar.org Page 31 Montana State Bar of LawyerMontana State Bar of Montana P.O. Box 577 Helena MT 59624

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