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January Montana Lawyer December 2009 / January 2010 THE MONTANA Volume 35, No. 3 LawyerTHE STATE BAR OF MONTANA Getting control of attorney advertising Dubious TV & Internet ads for out-of-state legal services driving the Montana Bar over the edge More on the new notary rules There’s a With federal charges in Montana. world-champ basketball The Prisoner’s Dilemma player becomes a reality show in our midst How to best serve your client THE MONTANA LAWYER DECEMBER / JANUARY INDEX Published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. Phone (406) 442-7660; Fax (406) 442-7763. Cover Story E-mail: [email protected] Attorney advertising: Bar petitions for rule changes 5 STATE BAR OFFICERS President Cynthia K. Smith, Missoula President-Elect Features Joseph Sullivan, Great Falls Secretary-Treasurer Prisoner’s Dilemma becomes Lawyers Dilemma 8 K. Paul Stahl, Helena Immediate Past President Montana Attorneys: world champ in basketball 12 Chris Tweeten, Helena Chair of the Board Neutral-arbitrator disclosure requirements 19 Shane Vannatta, Missoula 10 nonprofit governance mistakes 25 Board of Trustees Pam Bailey, Billings Pamela Bucy, Helena Darcy Crum, Great Falls Vicki W. Dunaway, Billings Jason Holden, Great Falls Commentary Thomas Keegan, Helena Jane Mersen, Bozeman President’s Message: Stockingful of energy 4 Olivia Norlin, Glendive Mark D. Parker, Billings Ryan Rusche, Wolf Point Ann Shea, Butte Randall Snyder, Bigfork Bruce Spencer, Helena Matthew Thiel, Missoula State Bar News Shane Vannatta, Missoula Lynda White, Bozeman New Criminal Jury Instructions 13 Tammy Wyatt-Shaw, Missoula 2010 Deskbook & Directory order form 13 ABA Delegate Damon L. Gannett, Billings State Bar Calendar 15 THE MONTANA LAWYER Publisher Christopher L. Manos, Executive Director Editor Courts Charles Wood (406) 447-2200; fax: 442-7763 e-mail: [email protected] Make discipline more public, justices say 23 Discipline 23 SUBSCRIPTIONS are a benefit of State Bar mem- bership; others purchase a year’s subscription for $40, pre-paid. Third Class postage paid at Helena MT 59601. Regular Features ADVERTISING RATES are available upon request. Statements and expressions of opinion appearing here- Upcoming CLEs 14 in are those of the advertisers or authors and do not necessarily reflect the views of the State Bar of State Bar Bookstore 16 Montana. News About Members 36 POSTMASTER: Send address changes to Montana Deaths 36 Lawyer, P.O.Box 577, Helena MT 59624. Classifieds 37 Copyright 2009 State Bar of Montana Printed in Billings at Artcraft Printers PRESIDENT’S MESSAGE A stockingful of energy Holiday thanks to lots of dedicated people Cynthia Smith s I sit down to write this December’s President’s suicidal or otherwise in crisis, or from the staff of attorneys Message, it is a few days before Thanksgiving – who had committed suicide. Now that we have a Law A the beginning of a season of reflection and grati- Assistance Program coordinator, Mike Larson, Betsy tude. So I guess it’s natural to write about the people for doesn’t have to do that job any longer. We are lucky to whom I am grateful as president of the State Bar of have Mike, who is perfect for his job – he’s a lawyer, a Montana. trained counselor, and a recovering alcoholic. In a few First of all, I am so grateful for the staff at the State Bar. short years Mike has developed Montana’s LAP program They make my job seem effortless. I joke that the presi- into one that is nationally recognized. I’m thankful for dent’s job is easy – I just do what Executive Director Chris Mike, Betsy, and Chris, and for all of the staff at the State Manos tells me to do. It’s not quite that easy, but Chris is Bar who work so hard to help the members of our profes- incredibly helpful to the president sion. and all of the members of the Bar. My gratitude as president goes Chris has been the executive direc- beyond just the State Bar staff. I am tor for nearly 10 years. He had big A reminder: Dec. 1 was the also grateful to all of the members shoes to fill after George Bousliman deadline for sending your IOLTA of the bench and bar who generous- retired. Chris has handled the job compliance form to the State Bar. ly donate their time and energy to with excellence and made us all If you have not done so, go to State Bar committees and Montana proud. We are very lucky to have www.montanabar.org under “Front Supreme Court commissions. I’m him. Burner” to complete the form online also grateful to the lawyers who We are also lucky to have Betsy or to download the form to mail in. give their time to set up and main- Brandborg. Betsy and the tain local bar associations. I am The annual Pro Bono Reporting Professionalism Committee have always so impressed at the level of been taking a Professionalism CLE Form is there, too. dedication and commitment I see around the state for several years from lawyers and judges who are now, in a program aptly called “The working to improve our profession. Road Show.” This past year part of the program has Most of all, I’m grateful to members of the Bar who included the recommendation to “Call Betsy!” whenever a donate their time to the indigent and others whose access to lawyer faces a difficult, seemingly unsolvable ethical justice is limited. This selfless contribution is so important dilemmas. While the Professionalism Committee recom- to the people who otherwise would be unable to enforce mends “Call Betsy!” partly in jest, the reality is that calling their rights. This gratitude also extends to lawyers who Betsy is what lawyers and clients do every day. work for Montana Legal Services and the Public Every day, Betsy fields calls from worried lawyers, most Defender’s office, or non-profit organizations that help peo- of whom are trying to do the right things for their clients. ple who can’t afford to pay the market price for representa- Betsy is always willing to lend a kind and wise ear to a tion. Their jobs might not be as glamorous or lucrative as problem and suggest a solution, or the right place to look others in the legal profession, but they go out there and for the solution. Betsy also fields calls every day from irate fight for their clients every day because they believe so and disgruntled clients who are unhappy with their attor- fiercely in what they do. neys, or are unable to find attorneys. With an amazing sup- So, thanks to all of you who donate your time and ener- ply of patience and grace, Betsy listens to the clients and gy to those in need and to our profession. I wish you all then helps them to the best of her ability to find a way to the very best for the holidays and the New Year. work with their attorneys or to find different attorneys. Until just a few years ago, Betsy also had the difficult, heart-breaking job of handling calls from lawyers who were PAGE 4 THE MONTANA LAWYER DECEMBER 2009 / JANUARY 2010 COVER STORY Bar seeks to change The State Bar of Montana Members of the Ethics and its Ethics Committee will lawyer-advertising Committee, Board of file a petition with the Trustees, former leadership of Montana Supreme Court to the Bar and the executive change and clarify rules per- playing field director of the Montana Trial taining to advertising by Lawyers met in 2006 to lawyers. examine the issue.1 Jay The petition responds to A petition to the Montana Supreme Court Westermeier, a nationally rec- concerns raised about ognized expert on computer advertising by attorneys law, information technology, unlicensed to practice law in Montana, ads aimed at Montana licensing, and electronic commerce also participated in the clients. Such ads are found in Montana via television and the meeting. Mr. Westermeier provided a comprehensive Internet. overview of how other states are addressing the myriad issues The Bar will ask the Court to revise and amend three Rules presented with advertising, Internet, technology, and multi- of Professional Conduct that address attorney advertising and jurisdictional practice issues. Justice Leaphart’s inquiry also solicitation in Montana. The proposed amendments: presented issues involving confidentiality, conflicts, record Clarify Montana disciplinary jurisdiction over attorney keeping, labeling, content restrictions, choice of law, informa- advertising. tion security, objective consent, and unauthorized practice. Specifically identify types of misleading lawyer commu- Mr. Westermeier emphasized that the group assembled nications. could not “put a Montana boundary on the Internet.” The Recognize that Montana does not have a procedure to objective, he said, was to develop rules that 1) adapt to techno- “qualify” a lawyer referral service. logical developments; 2) avoid constitutional challenges; and The following memorandum from the petition explains the 3) avoid anti-trust complaints. He stated that other state bars’ concerns and the petitition’s background: attempts to accomplish these objectives, including rules dopted by the state bars of Texas, Florida, Louisiana, New Jersey, and MEMORANDUM IN SUPPORT OF PETITION New York, have run afoul of the Federal Trade Commission with their advertising rules. The amendments adopted by the I. A review of the advertising rules, initiated by Supreme Court of Missouri have not. Justice Leaphart, resulted in the State Bar Board of A working group2 was assigned to develop proposed lan- Trustees’ approval of three proposed amendments to guage to address the Court’s concerns within constitutional the Montana Rules of Professional Conduct.
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