Montana State Bar of Montana Lawyer May 2013 | Vol. 38, No. 7 State Bar Elections Contested races for Area H, Area F üand Secretary-Treasurer | Q&A inside Also inside: > Pro bono requirement up for review > Evidence Corner: Prior statements part II > Elder law: Debt collection practices > Flathead’s successful pro bono program > Supreme Court case summaries > Decision deals blow to copyright holders 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 April 2013 President Pamela Bailey, Billings President-Elect Randall Snyder, Bigfork Feature Stories Secretary-Treasurer Mark Parker, Billings Candidate Q&A ........................................................................................... 11 Immediate Past President Flathead pro bono program .................................................................. 29 Shane Vannatta, Missoula Chair of the Board Kirtsaeng copyright case ..................................................................... 39 Matthew Thiel, Missoula Board of Trustees Marybeth Sampsel, Kalispell Commentary Leslie Halligan, Missoula Tammy Wyatt-Shaw, Missoula President’s Message ....................................................................................4 Ellen Donohue, Anaconda Jason Holden, Great Falls Mike Talia, Great Falls Kent Sipe, Roundup Regular Features Luke Berger, Helena Tom Keegan, Helena State Bar News ...............................................................................................6 Monica Tranel, Helena Jane Mersen, Bozeman Member News ........................................................................................... 3,5 Lynda White, Bozeman Vicki Dunaway, Billings Elder Law Series ............................................................................................8 Ross McLinden, Billings Monique Stafford, Billings Evidence Corner ......................................................................................... 19 ABA Delegates Supreme Court case summaries .......................................................... 31 Damon L. Gannett, Billings Shane Vannatta, Missoula Continuing Legal Education .................................................................. 44 Montana Lawyer Staff Obituaries ..................................................................................................... 43 Publisher | Christopher L. Manos Editor | Peter Nowakowski (406) 447-2200; fax: 442-7763 Job postings/Classifieds....................................................................46-47 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. Montana /Member News School of Law Summer Indian Law Program numbers of seats open for attorneys. Please see individual de- scheduled for June 10 - July 12, 2013 scriptions at http://goo.gl/HvYQE. To pre-register for a course, please email Patience Woodill [email protected]. Spend the summer in beautiful Missoula, Montana studying Attorneys may register up to the first day of class. Attendance at Indian Law! The University of Montana, School of Law invites all sessions is required for full CLE credit. you to participate in the sixth annual American Indian Law Enrollment of Law Students, Graduate and Undergraduate Summer Program, June 10 - July 12, 2013. Students will have Students, please visit the School of Extended & Lifelong the opportunity to gain knowledge and practical skills from Learning for registration information, or contact LisaMarie Professors and Practitioners with decades of experience relating Hyslop, UM School of Law Registrar at 406-243-2690. to the subject area they are teaching. All classes are scheduled to be held in the Law Building, Lawyers who attend earn 13 or 14 CLE credits per course. Room 215. Names of those attending for CLE credit will be submitted to • June 10 – 14: Criminal Jurisdiction in Indian Country, 9 a.m. the State Bar of Montana. In the alternative, attendees can sim- to noon ply self-report on their CLE affidavit. • June 17-21: Domestic Violence in Indian Country, 9 a.m. to Any lawyer wishing to attend, who is not already enrolled noon for academic credit, must pay $375 per course to earn CLE • June 24-27: Energy Development in Indian Country, 9 a.m. credit. to 12:30 p.m. Registration and payment can be made on the first day • June 28 – July 3: Indian Child Welfare Act, 9 a.m. to 12:30 of the course via credit card or check made payable to The p.m. University of Montana School of Law. Courses have a varied • July 8-12: Indian Water Law, 9 a.m. to noon The 2013 C-Class The 2013 E-Class The Fast and the Luxurious. It’s your choice! Speed & Style join forces in the thrill-injected C-Class Sport Sedan. Or sink back into the relaxed luxury of the Mercedes-Benz E-Class. No matter which you choose you’ll enjoy being treated to Mercedes-Benz of Billings wide range of customer benefits. Visit us for a test drive today! CUSTOMER SATISFACTION & CONCIERGE SERVICE 3045 King Ave. West Billings, MT 59102 Mercedes-Benz of Billings delivers! 1 877 440 7001 { ...Anywhere in Montana. } www.mbbillings.com Service Appointments now available on Saturday. Yes, Mercedes-Benz of Billings Delivers. www.montanabar.org Page 3 President’s Message | Pam Bailey Is safety an illusion? started out like any other day. I was at my office wait- Regardless of the type of practice you engage in, we all deal ing for a client who was driving down to Billings with people who are at risk for becoming violent and danger- from Roundup. At the time, I was in an office sharing ous. Our clients are dealing with issues concerning the loss Itarrangement with four other attorneys. Outside my door, I no- of property, income, family, children and personal freedom. ticed another attorney’s client sitting in a chair with a long box When they do not get the result they like we, as their attorneys, on his lap. I did not think much of it. Normally, I always have are often the first to blame. Add in mental illness, stress and my door open unless I am with a client or on a confidential desperation and you have a potentially dangerous situation. phone call. For some reason, I closed my door half way. Shortly Violent attacks committed against attorneys by clients thereafter, I heard the man’s attorney returned from Law and enraged over their legal matters are nothing new. Every year in Motion. The man said “hello” then I heard a loud muffled pop. our country lawyers are attacked with deadly force by dis- The attorney said, “He’s got a gun!” I got up and looked outside gruntled clients or parties to litigation that the attorney was my door. Sure enough, the remnants of a involved with before the attack. Big city man’s head that had been shot off by a sawed law firms often have security measures in off shotgun was outside my door. I closed my door and place that involve high tech tools such as I closed my door and tried to hide. portable alarms and hidden cameras. In Where? Under my desk? There was no way tried to hide. Where? Montana where half of attorneys are sole out. I was terrified. The other attorneys called Under my desk? practitioners, high-tech safety measures are me on the intercom and told me to stay in unrealistic. my office. The man was outside my door. I There was no way What can we do to protect ourselves? could hear what was left of his body gasping Criminals have the right to an attorney. for air. It seemed like an eternity before the out. I was terrified. Others do not. I have rejected a few cases paramedics and the police arrived. When I over the years because I knew the person was finally able to leave my office the sight I The other attorneys I was dealing with was not safe. Many saw was horrific. years ago, a therapist at the Mental Health This was not a client that any attorney called me on the Center called me to warn me that one of wants to represent. He had just entered a intercom and told me my clients had made threats against me. guilty plea for sexually assaulting a 7 year old Luckily nothing came of it, but it made me girl. He was about to be sentenced and feared to stay in my office. more cautious as to the clients I accept. going to prison. The man sent the Billings As a sole practitioner and woman, I pay Gazette a typed three page letter which ar- The man was outside particular attention when I am alone in rived on the day of the suicide. He did not my office. If I know ahead of time that want to go to prison and blamed his lawyer my door ... someone has a history of violence I do not for the outcome of the case. The Gazette accept the case. reported that this man (who was at one time What about members of our judiciary a business owner, a salesman and had recently been elected as in Montana? Our District Courts have very little protec- a Republican committeeman in Billings) had a lifetime of sexu- tion from litigants who are dangerous. The Federal Judiciary ally aggressive behavior towards women. His day of reckoning has a significant amount of protection in place. How much had arrived and he did not want to do the time. Suicide was longer before our State District Court judges receive similar his option. He had more than one shell in his gun. Who knows protections? what would have occurred if his plan had gone awry? The events of 9/11 changed us all. The events of Sandy My experience with a violent client is nothing new in Hook, Boston, and Aurora are constant reminders that safety Montana. In fact, during mediation in a civil law matter last may be an illusion. Regardless, we owe it to ourselves and our year in Bozeman, a client made her “final offer” and pulled out staff to have safety measures in place to not only prevent a a gun.