Montana State Bar of Montana LawyerMarch 2013 | Vol. 38, No. 5 Bar Awards and elections > Do you know of a peer who deserves recognition? It’s time to work on nominations. Forms are inside and online. > It’s also State Bar elections season. Three trustee positions, president-elect, and secretary-treasurer will be on the ballot. Nomination petition inside and online. Also inside > Elder law series: Medicaid long-term care > Montana Supreme Court case summaries > American Taxpayer Relief Act analysis > Evidence Corner: Mediation and avoiding trial > Travels to South Africa > President’s Message: Enrollment decline in law schools > Blast From the Past: Challenges facing new lawyers 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 February 2013 President Pamela Bailey, Billings President-Elect Randall Snyder, Bigfork Feature Stories Secretary-Treasurer Mark Parker, Billings Travel: Refelctions on South Africa ..................................................... 26 Immediate Past President ATRA: Permanence in Transfer Tax System ..................................... 29 Shane Vannatta, Missoula Chair of the Board Matthew Thiel, Missoula Commentary Board of Trustees Marybeth Sampsel, Kalispell President’s Message ....................................................................................4 Leslie Halligan, Missoula Tammy Wyatt-Shaw, Missoula Ellen Donohue, Anaconda Jason Holden, Great Falls Regular Features Mike Talia, Great Falls Kent Sipe, Roundup Member News ...............................................................................................5 Luke Berger, Helena Tom Keegan, Helena State Bar News ...............................................................................................6 Monica Tranel, Helena Jane Mersen, Bozeman Court orders ...................................................................................................7 Lynda White, Bozeman Vicki Dunaway, Billings Supreme Court Case Summaries ......................................................... 12 Ross McLinden, Billings Monique Stafford, Billings Continuing Legal Education .................................................................. 40 ABA Delegates Elder Law Series ......................................................................................... 38 Damon L. Gannett, Billings Shane Vannatta, Missoula Evidence Corner ......................................................................................... 32 Montana Lawyer Staff Job postings/Classifieds.......................................................................... 44 Publisher | Christopher L. Manos Editor | Peter Nowakowski (406) 447-2200; fax: 442-7763 Blast from the Past .................................................................................... 46 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. Postmaster: Send address changes to Montana Lawyer, P.O. Box 577, Helena MT 59624. President’s Message | Pam Bailey Nation’s law schools are facing an enrollment crisis There is a nationwide crisis at the law schools in our qualifications; however, the number of students enrolled may be Country. Enrollment is down dramatically and there is no lower than last year if necessary to maintain the qualifications. indication that this will change in the near future. The New So far, the quality of students has been maintained. The concern York Times reports that in 2004, 100,000 people applied to law is quantity. school. In 2013, the number of applications expected is between Many of you may say that we have too many attorneys not 53,000 and 54,000. The causes are obvious – high tuition and only nationwide, but in Montana. As I have informed you in fewer jobs. How this will impact law schools is also obvious – an earlier President’s message – over 50% of the Montana bar faculty layoffs and closures. is over 50 years of age. When we baby boomers start to retire in Is this another nationwide problem that we in Montana large numbers, will there be enough lawyers to take our place? can say does not affect us? The answer is NO! The University What about eastern Montana? There is already a serious of Montana School of Law is also seeing a significant drop in shortage of attorneys in that area. The Bakken boom has applications. Law school applications are down about 36% significantly impacted the 7th and 15th Judicial Districts. Guess from this time in 2010. In early January 2013, less than 60 how many attorneys practice in those areas? In the 7th Judicial applications had been received. Typically, over 100 applications District there are 30 active attorneys and in the 15th Judicial would be received by that time. In the past two months, District there are 16 active attorneys. Not enough to meet the applications are up over last year, but still not at a desired level. present legal needs, let alone in the upcoming years when the The University of Montana School of Law has low population will explode. How do we attract new attorneys to tuition compared to other law schools, good job placement move to rural eastern Montana? The lack of affordable housing statistics, and a very high bar passage rate. So what is the in that area is enough of a deterrent in and of itself. problem? Competition is one factor. Out-of-state law schools What are the solutions? This is not just the law school’s are “poaching” our top students. They are offering better problem, this is our problem. Members of the Executive scholarships and making earlier offers. Sadly, the huge debt Committee of the State Bar have met with Dean Irma Russell, these students will incur at out-of-state schools, even with Lori Freeman (Director of Admissions and Career Services), scholarships, will make their return to Montana unlikely. and John Mudd (Director of Development and Alumni Marie Connolly, the State Bar admissions coordinator, Relations). They are doing their best to reach out to prospective reports that many applicants for the 2013 bar exam have students in Montana and nationwide; however, they need our $150,000 or more in student loan debt. Many jobs right out help. Members of the State Bar can encourage bright young of law school in Montana are offering salaries in the $40,000 - students to stay in Montana for their legal education. We can $50,000 range. It is mind blowing to imagine repaying this debt, also reach out to our local high schools and colleges and educate especially the first few years out of law school, let alone buying a students about the opportunities in the law. Scholarship money new car, a home, starting a family, etc... is always needed. The University of Montana Law School has The University of Wyoming School of Law is facing the never offered full ride scholarships. Funding is needed for ad prospect of reducing their class size this year due to a reduction campaigns and to pay for travel to bring prospective students in applications. The University of Montana School of Law to Montana. What solutions can you offer? The law school and plans to admit a class that is substantially similar in terms of State Bar want to hear from you. “What about eastern Montana? There is already a serious shortage of attorneys in that area. The Bakken boom has significantly impacted the 7th and 15th Judicial Districts. Guess how many attorneys practice in those areas? In the 7th Judicial District there are 30 active attorneys and in the 15th Judicial District there are 16 active attorneys. Not enough to meet the present legal needs ...” Page 4 March 2013 Montana /Member News Wilson a new shareholder in Brown Law Firm established in 1932 which focuses on tort and commercial liti- gation. Hall & Evans has offices in Billings, MT, Cheyenne, WY Brown Law Firm, P.C., Billings, Montana, is and Denver, CO. Contact Taylor at [email protected] proud to announce that Jon A. Wilson has become a shareholder in the firm. Jon graduated from the Orr reopens Missoula Law office University of Montana School of Law with high honors in 2005. He served as a law clerk for Justice Thomas C. Orr is proud to announce the re-opening of his John Warner of the Montana Supreme Court law office in Missoula, MT at 523 South Orange. Wilson before joining Brown Law Firm in September 2006. Tom has practiced law for over 22 years in the areas His principal areas of practice are insurance cover- of Family Law, Real Estate Transactions, Landlord/ age and civil defense litigation. He is admitted to practice in Tenant, Personal Injury and Criminal Defense. the state and federal courts of Montana and the Ninth Circuit He spent 8 years with the City Attorney’s office in Court of Appeals. Mr. Wilson is a member of DRI and the Missoula before opening his own office in 2000. Montana Defense Trial Lawyers Association. Orr Before reopening his office, he was with the P. Mars Scott Law Firm since 2010. Tom is looking forward to serving the legal needs of businesses and families in the Taylor the new coordinator at Missoula area and can be reached at (406) 543-0999 or Missoula Family Law Self-Help Center