Montana Lawyer December 2011 by State Bar of Montana

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December 2011 / January 2012 Volume 37, No. 3

THE MONTANA

THE STATE BAR

MONTANA

Cease & desist

The Supreme Court cautiously unwraps a new Bar Exam

your

technology avoidance

It’s becoming an issue of attorney competence

Montana loses three former judges CHRISTMAS SHOPPING

Should lawyers use

iPads?

Holiday greetings from the

State Bar staff

State Bar of

Montana

DECEMBER/JANUARY INDEX

THE MONTANA LAWYER 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. E-mail: mailbox@montanabar.org

Note: there is no separate January edition of The Montana Lawyer. The next edition will be February 2012.

STATE BAR OFFICERS President Shane Vannatta, Missoula President-Elect Pamela Bailey, Billings Secretary-Treasurer Mark Parker, Billings Immediate Past President Joe Sullivan, Great Falls Chair of the Board Randall Snyder, Bigfork Board of Trustees Luke Berger, Helena Pamela Bucy, Helena Darcy Crum, Great Falls Ellen Donohue, Anaconda Vicki W. Dunaway, Billings Leslie Halligan, Missoula Jason Holden, Great Falls Thomas Keegan, Helena Ross McLinden, Billings Jane Mersen, Bozeman Olivia Norlin, Glendive Ryan Rusche, Wolf Point Randall Snyder, Bigfork Monique Stafford, Billings Matthew Thiel, Missoula Monica Tranel, Helena Lynda White, Bozeman Tammy Wyatt-Shaw, Missoula ABA Delegate Damon L. Gannett, Billings

Cover Story

Why you must stop avoiding technology Proposed tech targets for attorneys

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Features

Montana loses its longest serving justice

Unauthorized practice: new referees

Let’s reduce notarizations

Practice tips: dealing with deadbeat clients

Advocates donate back to Justice Foundation

iPad for attorneys: a tool or a toy?

Commentary

President’s Message: Take a lawyer to lunch!

A eulogy for Judge Joseph B. Gary

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THE MONTANA LAWYER Publisher Christopher L. Manos, Executive Director Editor Charles Wood (406) 447-2200; fax: 442-7763 e-mail: cwood@montanabar.org

SUBSCRIPTIONS are a benefit of State Bar membership; others purchase a year’s subscription for $40, pre-paid. Third Class postage paid at Helena MT 59601.

State Bar News

Bar hires new communications director

State Bar Calendar

Courts ADVERTISING RATES are available upon request. Statements and expressions of opinion appearing herein are those of the advertisers or authors and do not necessarily reflect the views of the State Bar of Montana.

POSTMASTER: Send address changes to Montana Lawyer, P.O.Box 577, Helena MT 59624.

Major bar exam changes ‘conditionally’ accepted

New appellate procedure rules amended

Regular Features

Upcoming CLEs State Bar Bookstore News About Members Deaths Classifieds

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PRESIDENT’S MESSAGE

Take a lawyer to lunch! The struggle to communicate with opposing counsel Shane Vannatta

The single biggest problem in communication is the illusion that it has taken place. – George Bernard Shaw suggest you take him to lunch and see if you can resolve the discovery dispute,” I said to John (name changed to protect the innocent) in our office. “It can’t hurt, and you may find an easy solution.” “Why would I even consider that?” John responded, incredulous at my suggestion. “I don’t even like to receive e-mails from him, let alone share a meal with him.” I reminded John that he had never personally met this opposing attorney, and it would give him an opportunity to know the attorney a little better. “He is completely unreasonable, and I don’t want to reward him for that with lunch!” John responded. I both understand and lament John’s response. I, too, struggle in my practice to communicate my client’s concerns and disputes effectively to the opposing party and counsel. Despite my best efforts, it often feels that my communication goes unheard, unconsidered, and completely discounted. Disputes abound, and not just about the clients’ core dispute, but about the process of resolving the dispute. I feel like a lone wolf howling in the woods. Opposing counsel appears unwilling to listen, and more intent upon convincing me of his position. Then I wonder, “does opposing counsel feel the same way about me?”

COMMUNICATION IS a two-way street. It’s not the mere transmission of information, but seeking an understanding, even if the dispute remains. It’s listening as much as speaking. Sadly, we frequently fail at the listening part of the communication. If you speak with more senior attorneys, you come to the conclusion that the practice of law really occurs in the context of relationships. We can’t effectively communicate with one another unless we first realize that we are all different in the way we perceive the world. Absent knowing one another, we can’t use this understanding as a guide to facilitate our communication. But gone are the days where attorneys would meet over coffee or a meal to work through their clients’ problems and try to find the common ground. Attendance at local bar functions has languished and is populated by many of the

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same people month after month. We slurp soup at our desks or take a run over lunch, giving a quick nod of recognition when we see our compatriots on the streets. Rarely do we actually talk with one another. TECHNOLOGY HAS NOT helped our communication skills or effectiveness. We all seem locked in our respective offices, banging out e-mails and letters at a frenzied pace without much consideration as to how the correspondence will be received. It’s far easier to crank out spontaneous e-mail responses or terse and ill-mannered letters than to walk across the street to have a face-to-face discussion with opposing counsel. Many attorneys never physically meet each other until the first court hearing several months (or years) after initiation of the case. I also know that there are attorneys who simply shut down altogether and refuse to respond to attempts at communication. I’ve spoken with many attorneys who can’t seem to get needed information from opposing counsel, whether requested by fax, e-mail, letter, phone call, or smoke signal. In many of those cases I’ve suggested the obvious – camp out in the attorney’s lobby until the attorney comes out. It’s hard to ignore the attorney sitting in your office. If we are unwilling to relate to one another on a more profound basis than simply passing along information, we are failing in our core responsibility of resolving disputes. We are failing our clients when we refuse to communicate – speak and listen – to one another. I FIRMLY BELIEVE that attorneys would find more joy and satisfaction in the practice of law if they only spent more time getting to know other attorneys. There are many reasons for doing so. First, connecting with your fellow attorneys would reduce the isolation we all feel from practicing law. Connecting with similarly-situated individuals builds comradery and reduces stress. It’s a relief to know others face the same problems. We all are combating the fatigue of the practice – why not talk about it. Second, it is not wasted time, but a direct investment in your lawyering ability. You will be far better able to resolve your client’s problem with an understanding of, and a little

THE MONTANA LAWYER

DECEMBER 2011 / JANUARY 2012

MONTANA JUDGES

Montana loses its longest-serving justice ohn C. Harrison, the longest-serving justice in the history of the Montana Supreme Court, died on Nov. 11 in Helena. He was 98 years old. A lawyer, judge, and longtime public servant, Judge Harrison was a keen observer of the human condition and concerned with social justice throughout his life, his obituary said. Justice Harrison spent more than a third of a century on the Supreme Court, serving as a justice from 1961 to 1995 and winning all five of his elections. He was first elected in 1960 after eking out a win over his opponent by 1,654 votes, Lee Newspapers State Bureau reporter Chuck Johnson wrote in a Nov. 12 article. Justice Harrison previously served as Lewis & Clark County attorney and as city attorney in East Helena and legal counsel for the Fort Belknap tribe. According to his obituary, which appeared in the Helena Indpendent Record, Justice Harrison was a young welfare worker during the Depression, assisting starving families across rural Montana. “He witnessed hardship that, he later recalled, had ‘a tremendous impact emotionally and politically on me,’” the obituary said. Over his career, Justice Harrison said he judged 9,080 cases as a justice, and he and his law clerks produced 1,370 full opinions and 222 dissents, according to a tally done for him by a legal publishing company before he retired, Lee reporter Chuck Johnson wrote. “He said he took pride in a decision he wrote that

in Bozeman and Dr. introduced product Harrison establiability to Montana.” lished a dental Justice Harrison practice in said the most imporHarlowton. tant decision he ever Justice Harrison participated in was the said that he became opinion written by interested in the former Justice John field of law as a Sheehy in the early young man because 1980s upholding of a judge who Montana’s right to sometime sat across levy what was then a the table from him 30 percent severance at a boarding house tax on coal, the highJustice John C. Harrison in Harlowton, est in the country, Mr. where he moved Johnson reported. Justice Harrison was generally regard- with his father in 1928. A self-professed late bloomer as a stued as being in the court’s conservative dent, Justice Harrison quickly displayed majority during his tenure, Mr. Johnson the social enterprise that would characsaid, “but he disputed using labels to terize his life. At age 15 in Harlowton, evaluate judges.” already an Eagle Scout, he organized a “I don’t know what I am,” Mr. Boy Scout troop and acted as scoutmasJohnson quoted Justice Harrison as sayter. He played football and basketball for ing. “I’ve had Republicans tell me that Harlowton High School, recalling later I’m too damn liberal, and I’ve had Democrats tell me I’m too damn conser- that basketball games against the town of Judith Gap required extra toughness vative.” because of the small church gymnasium, JOHN CONWAY HARRISON was flanked with legions of church ladies born in Grand Rapids, Minn., the first of who stuck their hatpins into the Harlowton players every time they inthree children of Dr. Francis Randall bounded the ball. Harrison, a dentist, and Ethel Conway In the fall of 1931, Justice Harrison Harrison, a teacher and women’s rights attended Montana State College in advocate. A family of passionate politiBozeman where his mother had recently cal beliefs, his father a Republican and become a dean. He studied agricultural his mother a Democrat, they moved economics and played football for the eventually to Montana, where Mrs. Harrison became dean of women at Montana State College (now University) More HARRISON, Page 27

trust in, the other attorney. I’ve often been able to resolve significant disputes with opposing counsel I know and trust because we can both put all the issues – good and bad – on the table and come to a very quick understanding of how the case will play out. Because of this experience, time socializing with other attorneys is as important as continuing legal education in my mind. Third, getting to know other attorneys is a prophylactic against attorney misbehavior. I have found that it is far more difficult for opposing counsel to be nasty to you if he person-

DECEMBER 2011 / JANUARY 2012

ally knows you. It’s easier to dismiss and demean opposing counsel if he is a stranger. When you have to repeatedly meet opposing counsel in a social context and know his children and loved ones . . . well, then it becomes infinitely more complicated to be mean. Social pressures guide you to treat the other attorney with respect. So, when the disputes are heated and the correspondence has taken a nasty turn, try taking the attorney to lunch. It can’t hurt, and you may find more than a resolution to the dispute.

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COVER STORY

Why you must

all a few clicks away. With metadata, the techsavvy attorney can review a document and find out when it was created, how much time it very large group of took, who helped with it, what Montana lawyers have changes were proposed, what a problem: At least half proposed changes were acceptof us are trying to avoid ed or rejected and more. It’s embracing technology. In fact, not hard to find metadata – this we’re downright tech-adverse. mother lode of information is “I’m 52 and I’m hoping to four or fewer clicks away. You retire before I really need to just have to know which clicks. know this stuff” is a typical How can this get a lawyer in sentiment. trouble? It’s simple. Just e-mail Many of us are attempting to an unscrubbed (in Word 2003) contract the client asked you to avoid knowing more than how to turn the machine on, type, print our document, and check our e-mail. If something glitch- write along with a bill for $4,000. If your client is tech-savvy es, we have someone nearby – a secretary, tech support, a col- and motivated, she will look at the contract’s metadata. If you took only an hour to insert the league – who can help us get back to client’s name where another name our comfortable basics. had been, and there had been comHere’s the problem: What we don’t If the Court adopts the tech ments in the contract about certain know in the tech arena hurts us in a standards, technology will language that you assumed was very real way. Security, metadata, become a core competency of deleted because you couldn’t see it, social media, electronic discovery, attorney practice. Failure to surprise! All that information is electronic filing, cloud storage – are there, right in the contract’s metadaall here, all not going away, and all understand technology will slip ta. Whoops! The client is going to not to be dabbled with. We lawyers into the categories of attorney be asking how that $4,000 bill can no longer just get to use this technolmalpractice and attorney incom possibly be fair, before moving on ogy; we have to know this technoloto a lawyer who “gets” tech. gy. petence. Now think of what a tech-savvy Our profession is at the point opposing counsel can do with those where each individual lawyer must interrogatory answers you forwardappreciate the nuances of the technoled without scrubbing. ogy we’re using. Even if you’re a “purist” with a typewriter or a legal pad, you need to know this stuff. Proposed new rules Why? Because the other half of the lawyer population is An ABA commission is recommending amending the ABA’s using it very effectively and are garnering more information Model Rules of Professional Conduct to address issues raised about their cases, about their clients, about their judges, about by new technologies. the jurors and witnesses, and about details of the documents One proposal adds language to the confidentiality rule (Rule you sent them. These tech-savvy lawyers literally have more 1.6) to require lawyers to make reasonable efforts to prevent information at their fingertips than some of us could ever the inadvertent disclosure of, or unauthorized access to, confiimagine. Our clients are using it and expecting the same of us. dential information, including information in electronic form.1 We are on the cusp of not being able to give competent Another recommendation clarifies that a lawyer’s duty of legal advice if we don’t understand the technology we’re using competence (Rule 1.1) includes a duty to remain aware of the and sharing. Frankly, some would already say we’re not combenefits and risks associated with technology.2 petent if we don’t know the basics. A third recommendation concerns the inadvertent transmission of information and clarifies that lawyers have a duty to Two examples: notify the sender of both physical and electronic information A trial attorney attributes her recent jury win to her explounder certain circumstances.3 ration of the background of each potential juror. With Google Our State Bar of Montana Ethics Committee has not yet and on-line public records, she garnered substantially more information on potential jurors – political contributions, photo- considered the ABA’s proposals, but will inevitably have that opportunity. If our Montana Supreme Court adopts the proposgraphs of their houses from the street, tax liabilities, letters to the editor, DUIs, divorces. The information on these jurors was als, it means that technology will become a core competency By Betsy Brandborg legal counsel State Bar of Montana

stop avoiding

technology

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THE MONTANA LAWYER

DECEMBER 2011 / JANUARY 2012

of attorney practice. Failure to understand technology will slip into the categories of attorney malpractice and attorney incompetence.

Where to start? The State Bar’s Technology Committee has created a list of Proposed Technology Targets. [See them on Page 8]. The good news is that it’s not rocket science. It’s not even math. It’s almost as simple “follow the bouncing ball.”4 Much of the information can be had by running a Google search (i.e. search in Google: “how do I get rid of metadata in my Word 2003 document?”) and read the information that explains it. You would be surprised at the many resources available. First there’s the State Bar website: www.montanabar.org. The Tech Link page looks like:

If you don’t mind drinking from a fire hose, and want as much access as the lawyer-tech world has to offer, then consider going to the ABA TechShow 2012 in Chicago, March 2930. Information and pricing are found on a link from the montanabar.org website or at www.techshow.com. The program has a track for beginners that is excellent – you would enter as a novice and leave enlightened. It’s time to embrace the 21st Century. You can be darned sure it won’t be embracing you back.

Notes 1. To Rule 1.6 Confidentiality of Information, the ABA proposes to add a new subsection: (c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client. Also proposed is additional language in the comment (as underlined. Note that Montana has not adopted the comments): Acting Competently to Preserve Confidentiality: Comment [16] Paragraph (c) requires A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision or monitoring. See Rules 1.1, 5.1 and 5.3. Factors to be considered in determining the reasonableness of the lawyer’s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, and the cost of employing additional safeguards. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. 2. Rule 1.1 Competence provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The ABA proposes to add language to the comment (as underlined. Note that Montana has not adopted the comments): Maintaining Competence: [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Then, there are the ABA’s free website resources. Two links that are incredibly helpful are: www.americanbar.org/groups/departments_offices/legal _technology_resources/resources.html www.americanbar.org/groups/law_practice_management .html If you’re looking for a comparison chart of time and billing software, practice management software, or litigation support software, the ABA’s Legal Technology Resource Center is where to look. If you’re looking for marketing, management, or finance resources, then go to the ABA’s Law Practice Management page.

DECEMBER 2011 / JANUARY 2012

3. Rule 4.4 Respect for Rights of Third Persons provides: “(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives information or material a document relating to the representation of the lawyer’s client and knows or reasonably should know that the information or material document was inadvertently sent shall promptly notify the sender.” Also proposed is additional language in the comment (as underlined. Note that Montana has not adopted the comments): Comment [1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship. [2] Paragraph (b) recognizes that lawyers sometimes receive information or mate-

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rial documents that were was mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document information or material was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the information or material original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document the information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document information or material that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, ‘‘document’’ “information or material” includes paper documents, e-mail, and other forms of electronically stored information, including electronic documents and the data contained in those documents (commonly referred to as “metadata”), that are e-mail or other electronic modes of transmission subject to being read or put into readable form. Receipt of electronic information containing “metadata” does not, standing alone, create a duty under this Rule. [3] Some lawyers may choose to return a document information or material unread, for example, when the lawyer learns before receiving the document information or material that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document information or material is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4. 4. If you’re younger than 50, you probably don’t know that at the theater there once were cartoons before the movie where everyone was invited to, and did (with gusto), sing along: “Just Follow the Bouncing Ball,” the cartoon instructed as it merrily bounced across the lyrics.

Proposed technology targets for attorneys Suggested by the State Bar of Montana Technology Committee The Technology Committee recommends that attorneys strive to attain the following technologyskills. The list below is not designed to be a basis for civil liability. These are recommendations made by the Technology Committee, and have not been and will not be reviewed or approved by the State Bar Board of Trustees or the Montana Supreme Court. Under the ABA’s current set of proposed rules, a lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client. This includes an understanding of: 1. State and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information; 2. Cloud storage; 3. An attorney must understand the type of information that can be gained from: a. Cell phone and cell phone records b. A Computer including the fact that information may be retained after deletion c. Online Search Engines d. Social Networking Sites e. Internet Service Provider (ISP) f. Dynamic Website (as opposed to a Static Website) g. Electronic data storage and retrieval h. Metadata i. P2P (peer to peer) networks

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4. An attorney must take reasonable steps to secure both all computers (including laptops) and the attorney’s network which at a bare minimum means a firewall , log in system, and antivirus system. Wireless network systems must be secure (i.e.,encrypted). Client files should be secure (i.e., encrypted); 5. An attorney must not conduct confidential attorneyclient business on an unencrypted wireless system; 6. Given that lawyers keep more and more of their clients’ files in electronic format ideally protected both by a log in and encryption, a lawyer has an ethical obligation to make sure someone can access those files in the event of their death or incapacitation. Under the ABA’s current set of proposed rules, to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology. 1. An attorney must understand client obligations relating to litigation holds and data preservation; 2. An attorney shall have mastered the basic use of any program an attorney brings into a court room; 3. An attorney must know how to convert documents into PDFs; 4. An attorney must know the basics of online legal research and if you don’t use it, you must disclose this to potential clients; 5. An attorney must back up his/her electronic files ideally at multiple locations; 6. An attorney must know how to use a word processor, a spreadsheet, an internet browser, and an internet search engine; 7. An attorney must be able to create and modify a form legal filing; 8. An attorney must understand the basics of social networking whether they choose to use it or not; 9. An attorney must be able to electronically file in any jurisdiction that requires it if the attorney advertise as being able to practice in front of that court; 10. An attorney must understand how to perform electronic discovery and deal with the information provided; 11. An attorney must have knowledge of what actions are necessary to create personal jurisdiction in their home state for behaviors that occur online (i.e. what other than a website accessible in their state, is needed for their courts to have personal jurisdiction over the entities or individuals involved.) Under the ABA’s current set of proposed rules, an understanding that “information or material” referenced within the Rules includes paper documents, email, and other forms of electronically stored information, including electronic documents and the data contained in those documents (commonly referred to as “metadata”). 1. An attorney must be able to scrub metadata from their own legal documents and understand the importance of retrieving metadata from some forms of evidence.

THE MONTANA LAWYER

DECEMBER 2011 / JANUARY 2012

UNAUTHORIZED PRACTICE

LAW

A different playing field The referees have changed in Montana to proceed with formal disciplinary proceedings and shall thereafter enter its order of discipline or recommendation for discipline in accordance with the Rules.

By Marie Connolly State Bar of Montana y now, most people are aware that the Commission on the Unauthorized Practice of Law was dissolved by Order of the Supreme Court on April 20, 2010. (See In re Dissolving the Comm’n on the Unauthorized Practice of Law, 2010 MT 82, 356 Mont. 109, 242 P.3d 1282.) From that point forward, complaints about unauthorized practice were split between the Montana Attorney General’s Office of Consumer Protection – for non-attorney violations – and the Office of Disciplinary Counsel and the State Bar – for violations by attorneys not licensed in Montana. There were several reasons for dissolving the Commission, including lack of staff and funding as well as a perception of “lawyer protectionism.” In many cases, the UPL Commission was a toothless tiger with limited ability to enforce violations other than by threat. This new model gives the Office of Consumer Protection authority to treat violations as they do other consumer-protection concerns. Montana has no procedure other than pro hac vice for admission of out-of state-counsel. The ABA model rules have “safe harbors” for corporate practice. However, Montana has no such provision. Various entities within the state have struggled with this issue through the years, and there is no consensus on multi-jurisdictional practice or the creation of safe harbors. Rule 7 of the Rules for Lawyer Disciplinary Enforcement and Rule 8.5 of Montana’s Rules of Professional Conduct work together to address the procedures out-of-state attorneys must follow to practice in Montana and the method of enforcement when they fail to meet these requirements. Rule 7 has not changed in a significant period of time, but Rule 8.5 was changed in 2005 and subjects an attorney not licensed in Montana to the disciplinary jurisdiction of the Montana Supreme Court.

Rule 7 – Jurisdiction (RLDE) Any lawyer admitted to practice law in the state of Montana and any lawyer specially admitted by a court of the state of Montana for a particular proceeding, or appearing by pleading or otherwise in any judicial proceeding in the state of Montana, or otherwise engaging in the practice of law in the state of Montana is subject to the disciplinary jurisdiction of the Supreme Court. If a lawyer, because of allegations of misconduct or against whom formal disciplinary proceedings have been filed, shall surrender his or her license to practice law, the Commission retains jurisdiction

DECEMBER 2011 / JANUARY 2012

Rule 8.5 – Jurisdiction and Certification (MRPC) A lawyer who is not an active member in good standing of the State Bar of Montana and who seeks to practice in any state or federal court located in this State pro hac vice, by motion, or before being otherwise admitted to the practice of law in this State, shall, prior to engaging in the practice of law in this State, certify in writing and under oath to this Court that, except as to Rules 6.1 through 6.4, he or she will be bound by these Rules of Professional Conduct in his or her practice of law in this State and will be subject to the disciplinary authority of this State. …A lawyer not admitted to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: (1) involves the practice of law in this State by that lawyer; (2) involves that lawyer holding himself or herself out as practicing law in this State; (3) advertises, solicits, or offers legal services in this State; or (4) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. Additionally, Rule 5.5 of the MRPC, states that says that a lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. Unadmitted (out-of-state) counsel are not authorized to practice law in Montana, including giving legal advice on Montana law, drafting legal documents that involve Montana law, or appearing in Montana state courts. Unadmitted counsel are permitted to perform legal-type services in Montana for their employers, analogous to what a paralegal may do if working under the supervision of a lawyer admitted in Montana who reviews, approves, and is responsible for the work of the unadmitted counsel. Montana does not authorize unadmitted counsel to practice law in representing their employers or others in Montana unless they have an approved

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(e) provided, however, rules II (a) and (b) above shall not apply to those persons licensed to practice law in Montana and who are members in good standing of the State Bar of Montana on the date of the adoption of these rules, and that rules II (a) through (e) shall not apply to a person who has complied with the rules for pro hac vice practice in this State; and

application to appear pro hac vice. In March 2011, the Supreme Court issued an order In Re The Adoption of Rules for the Regulation of the Practice of Law in the Courts of Montana by Attorneys At Law. The order states: Having dissolved the Commission on the Unauthorized Practice of Law this Court concludes that it is necessary and appropriate that we exercise our Constitutional power under Article VII, Section 2(3) to make rules governing the practice and procedure before the courts of this state and the conduct of the members of the State Bar of Montana. The following rules are intended to implement this Constitutional authority. Therefore, the following rules shall apply in addition to other rules that we have adopted governing admission to the Bar, attorney discipline, rules of professional conduct, rules relating to character and fitness and rules relating to continuing legal education. I. For purposes of these rules, “attorney at law” includes attorneys (except attorneys-in-fact acting under a valid power of attorney), lawyers, counselors at law, barristers, solicitors, and persons acting “of counsel.” II. Except as provided by law, in order to appear as an attorney at law on behalf of another in the courts of this State, a person must: (a) have graduated with a Juris Doctor or equivalent degree from a law school accredited by the American Bar Association; and (b) have complied with the Rules for Admission to the State Bar of Montana; have successfully passed review by the Commission on Character and Fitness; and have successfully passed the Montana Bar Examination; and (c) have signed and filed with the Clerk of the Montana Supreme Court the written attorney ethics oath prescribed by the Montana Supreme Court; have taken the oral oath prescribed by § 37-61-207, MCA, to support the Constitution of the United States and the Constitution of the State of Montana and to faithfully discharge the duties of an attorney with fidelity to the best of his or her knowledge and ability; and have signed, or the Clerk of this Court has entered the person’s name on, the roll of attorneys kept by the Clerk of this Court; and (d) be a member in good standing (regardless of the category of membership) of the State Bar of Montana, have paid all dues, fees, penalties and license taxes applicable to his or her status as an attorney at law and member of the State Bar of Montana, and have met the continuing legal education requirements prescribed by this Court;

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(f) provided further that this rule II does not apply to an attorney at law or other person practicing within the scope of an authorization to practice law granted by the United States or any Indian tribe or to persons acting in compliance with the Water Court Rules. So what’s an attorney to do when faced with a situation where he has knowledge of an out of state attorney or a nonattorney practicing law in Montana? UPL complaints against attorneys not licensed in Montana should be addressed to the disciplinary authorities in the state where the attorney is currently licensed to the State Bar of Montana as well as the Office of Disciplinary Counsel. Additionally, § 37-61-402 MCA, states: Production of proof of authority to court. The court or judge, on motion of either party, may require the attorney of the adverse party to produce and prove the authority under which he appears and may stay all proceedings until such is shown and may at any time summarily relieve a party from the consequences of the acts of an unauthorized attorney. In those cases where a non-attorney or business is offering legal services and consumers are being harmed by the acts of the non-attorney, then a complaint should be filed with the Office of Consumer Protection. Enforcement is authorized through the Consumer Protection Act at § 30-14-103, MCA, which states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.” The OCP will investigate the complaint and, if the investigative unit is unable to resolve the complaint and there has been a pattern of deception from a particular business (or individual), the investigative files are referred to the department’s attorneys for possible legal action. Given the changing face of the Montana Supreme Court and the adoption of multi-jurisdictional practice by many states, the Court may at some point agree to a multi-jurisdictional practice that allows unadmitted counsel to provide legal services to a sophisticated employer on matters concerning the employer’s affairs. However, unless the Montana Supreme Court agrees to adopt the ABA’s proposed amendments to the Model Rules of Professional Conduct, the Court’s current UPL statutes and the guidance offered by the O’Neil case (Commission on the Unauthorized Practice of Law v. O’Neil, 334 Mont. 311 (2006) remain the law in Montana. At this point, however, the Court makes no distinction between attorneys licensed in other states, in-house counsel, or any other non-attorney offering legal services to the public.

THE MONTANA LAWYER

DECEMBER 2011 / JANUARY 2012

MANAGING YOUR PRACTICE

Lawyers encouraged to reduce notarizations before an officer authorized to administer oaths or an unsworn written declaration made under penalty of perjury as provided in 1-6-105.

They’re overused, and most are unnecessary, Secretary of State’s Office says By Linda McCulloch Montana secretary of state s notarization a hassle for you or your office? There may be something you can do about it. Our legal counsel and notary experts here in the Secretary of State’s Office are convinced that many or maybe even most notarizations are unnecessary, the result of tradition rather than law or actual need. We would like to start the long process of eliminating all unnecessary notarizations. The overuse of notarization comes from the common mistake that notarization guarantees the truthfulness of a document. Not so! Notaries are not responsible for determining the truth of a document. Their primary function is to establish the identity of the person signing and to assure that he is signing willingly and has the competence and the authority to sign the document. Notarization is necessary only when:

1. Some law requires it, and/or 2. The identity of the signer of a document (and his competence, authority and willingness to sign) needs to be established. This is particularly important when the document involves: A. The transfer of money or property, and/or B. The transfer of rights (such as a power of attorney agreement.) Granted, one of the most frequently requested notarial acts is the jurat – where the notary is also obligated to put the signer under oath, so that the statements contained in the document are made under penalty of perjury. Now there is an alternative, made available by the passage of SB337 (Sen. Anders BlewettGreat Falls) in the 2011 Legislature. This legislation changed the definition of “affidavit.” This is effective for the whole Montana code, not just the probate and trust matters that most of SB337 addresses. The law now reads: 1-1-203. Terms relating to instruments and other writings. Unless the context requires otherwise, the following definitions apply in the Montana Code Annotated: (1) “Affidavit” means a sworn written declaration made

DECEMBER 2011 / JANUARY 2012

Professor Charles Willey, of the University of Montana School of Law, drafted the legislation. In testimony before the Senate Judiciary Committee on February 17, 2011, he stated, “There is one item that is not limited to probate and trust matters, and that is the provision for an unsworn declaration. This bill has in it a provision which says in substance that if you would otherwise be required to swear to the truth of an item before a notary public, that is, an affidavit in the old form, that you can have the same legal effect by signing a sworn declaration which says, ‘I declare under penalty of perjury that this thing is true and correct.’ There is a virtually identical provision in the federal law which allows unsworn declarations in all kinds of federal proceedings. It’s a matter of great convenience because if you otherwise have something that requires an affidavit before a notary and it happens to be a weekend or your client is out in the country where there aren’t any notaries, it can be a real problem to get things done. This would allow a much more efficient treatment of that.” The recommended form of this unsworn declaration is now found in 1-6-105, MCA: (a) If executed within the state: “I declare under penalty of perjury that the foregoing is true and correct. ____________ ____________ Date and place Signature” (b) If executed in any place outside the state: “I declare under penalty of perjury and under the laws of the state of Montana that the foregoing is true and correct. ____________ ____________ Date and place Signature” We encourage you to examine notarizations performed by or for your office. Does some law require them? Do the documents transfer money, property or rights? Is there a question about the proper identity of the signer (and whether the person signed willingly, competently, and had the authority to sign)? If the answers are all “no,” it may be better to use the unsworn written affidavit to place the signer under penalty of perjury. When notarizations are required, they need to be done correctly and recorded properly in a journal so that the affected parties can prove what happened, even years after the fact. When notarizations are not required, they should be eliminated, so that time is saved, and the “hassle factor” is reduced.

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MANAGING YOUR PRACTICE

Lawyers share their practice tips The Montana Lawyer continues a series of law-practice tips, many of them excerpted from “How to. . .” articles presented in the July/August 2010 edition of the ABA’s GPSOLO magazine. Other tips will be provided by other authors, including members of the State Bar of Montana. You can find the entire GPSOLO “How-to” issue with the full-length articles at www.americanbar.org/publications/gp_solo_magazine_home.html, click on “Browse Past Issues” and find the July/August 2010 edition.

How to deal with deadbeat clients By Darrell G. Stewart for GPSOLO magazine

sion. Alternatively, put a picture or promotional brochure featuring the place where you want to retire or vacation. The picture will remind you of what you could do with your time rather than work on a client’s case for free.

Reluctant Payers vs. True Deadbeats xperienced attorneys typically have stories about the grateful client who reliably sends a payment every month for two or three years after the representation is concluded. Sadly, I would suggest that these clients are the exception and not the rule. You cannot construct your business policies and procedures assuming that everyone will follow that best-case example. Experienced attorneys tend to have more stories about ungrateful clients who fail or refuse to pay after the representation is concluded. It is therefore vital that you analyze this group of nonpaying clients and identify how to maximize the potential for getting payment from them – and how to avoid these clients in the first place.

Attune Your Deadbeat Radar If your client really is a deadbeat, the problem is largely a matter of poor screening on your part. Why did you agree to represent this client in the first place? Modify your intake procedures and requirements to cut down on similar circumstances in the future. Learn to look for red flags and add requirements to eliminate the clients who are true deadbeats. From a business standpoint you are making a credit decision if you work in advance of payments received. For this reason, some law firms structure their intake to investigate a potential client’s creditworthiness as part of their determination of whether or not to represent that individual or business. Believing in your client is a good thing, but accepting cases where you are certain of payment is much preferred. Another way to steer clear of deadbeat clients is to introduce the topic of your fee right from the start. If you are not focused on getting paid from the beginning of the attorneyclient relationship, then you might not get paid at all. Payment should be a major consideration when evaluating a potential client – so don’t be shy about discussing the topic up front. To remind yourself of the stakes, put your favorite picture of your family where you can see it when having this discus-

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Improvements to your screening process should help in the future, but what about right now? Once you have an accounts receivable – an unfunded client bill that cannot be paid from a retainer – you must weigh the time and resources you’ll expend chasing the money against the likelihood of recovery. Ask yourself why you are not getting paid. Is the client simply a deadbeat, or are there things you could do to encourage payment? I believe that getting paid up front is the best approach, but if that is not possible, try matching the work to the payment stream. Billing early and often assists in identifying the individuals or companies that are going to be a problem and allows you to modify the pace of your work – or in some cases stop the representation entirely before the unpaid bills pile up. There are certain changes you can make to your billing systems that will help with all but the most inveterate of deadbeats. Having a short period for payment after billing and a quick follow-up typically brings in more revenue than waiting 60 or 90 days to call. Sending your bills by e-mail may make for faster payment, and having more options available for payment (e.g., credit cards or online web presence that allows click-through payment) has proven helpful in spurring quick collection. Anecdotes abound of once-grateful clients whose appreciation for their lawyers’ work declines precipitously after that work is completed. Your clients may call you a genius the moment their case is resolved, but six months later they may decide that a trained monkey could have easily achieved a better result. So bill early and often. If you get paid while the appreciation is high, both you and your client are happier. When clients do fall behind on payment, try having a legal assistant or another attorney in the firm call to cross-check on the billing. This approach helps circumvent the unwillingness of some clients to discuss payment directly with the lawyer working on the case with them. This approach also insulates the lawyer from being the collector, which may be of value to some practitioners. Taking the step of having someone else

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DECEMBER 2011 / JANUARY 2012

call means that the caller needs to be trained and sensitive to the nuances of both the representation and potential causes of problems. Although I have had some clients communicate with a legal assistant when they might not as easily bring something to my attention, my personal approach as a solo is to be rather direct on the issue. If you call your client directly, you can listen carefully to determine what has caused the slow payment. Consider this script: “Joe, I was reviewing my records and noticed that I have not received payment on my bill dated Jan. 19, 2010. I am calling today to see if I need to resend it or if you had a question that you needed answered before remitting payment.” Having directly stated the purpose of the call, I try to listen carefully. Besides answering any question that results, which may take care of the payment issue, I am also trying to classify the cause. Try to suspend judgement about the client and just listen carefully to see what is going on. Sometimes the client is slow to pay attention to the bill but is willing to pay. Clients legitimately have other things going on in their lives, from busy travel schedules to illness to a host of other concerns. Calling can sometimes result in a new client matter, but even when it does not, true expressions of concern and empathy with the client can encourage the client to pay attention to your billing. Try to fix a discrete date to call back or follow up, or even better, gain a commitment for a firm date when the billing will be addressed. Sometimes clients have an issue or question that needs to be addressed before they will pay. A reluctant client may become willing to pay if you handle the call correctly. At times this is just a matter of reminding the client of previous discussions or readdressing appropriate expectations for the client matter. In circumstances where the representation is of a contractual nature, be it in preparation of a real estate contract or business venture or estate plan, you will be best served by getting payment at the time of delivery. In a real estate matter this may be the closing table, in a business venture it may be at the time of funding the new business entity, and in estate planning it may be when the documents are signed. In long-term matters, some method of payment that tracks the nature of the assignment keeps you from being too far ahead or behind.

Hard-Core Deadbeats But what if you truly have a deadbeat on your hands? In these cases, you simply need to stop chasing after payment and wasting resources. The clearest example is where the client is now tapped out and has no money. The inability to pay – as opposed to an objection against payment – is an early indicator that you need to move on to other, productive matters. In some cases, the client never really intended to pay. If so, this is a failure of screening and may also be a failure to recognize warning signals over the course of representation. In these cases, you must gauge how much time and effort are required to get the money owed and decide whether it is worthwhile to do so. You may be uncertain whether or how the client made the determination not to pay. Commonly this occurs when the communication becomes dissonant – you may send letters or e-mails or make calls, but you get no response. Or perhaps you

DECEMBER 2011 / JANUARY 2012

and the client talk but cannot effectively communicate or are at odds, frequently when someone (hopefully the client, not you) lets his or her emotions take over.

Dangers in suing to collect If you are considering litigation to collect your fee, remember that malpractice claims, even if not viable, are frequently made as a response to collection action against a client by an attorney. For that reason, malpractice carriers and some consultants recommend you never sue your client for fees. As a hedge against such claims, I recommend that you document your client’s satisfaction with your work throughout the representation. Work it in routinely as you write letters or email to your client. Repeated communications with some feedback from the client during representation may eliminate or reduce the area of attack for any claim that you committed malpractice. If you are definitely set on bringing action, provide the file to another attorney to review for any potential malpractice issues before you initiate collection. This is particularly important if you are having difficulty remaining objective. You can also bring in a third-party attorney to pursue the collection; legal fees are recoverable in contract actions, and the presence of this attorney may facilitate continued objectivity. Some collection agencies market themselves to attorneys. My caution with regard to allowing a nonlawyer to look at your file or billings is that it may make you liable in some jurisdictions for disclosing confidential or privileged information. Even where permissible, I greatly prefer to tend to the matter myself or have an experienced third-party attorney address collection. I recommend that you proceed carefully any time you consider taking adverse action against your client. Intemperate comments, inappropriate humor, or other actions may be blown out of proportion and used against you even when you do not take adverse action, so imagine what might happen if you do. You may find yourself facing liability issues in addition to nonpayment. Be absolutely certain that pursuing litigation to collect your fees is worthwhile. Weigh the money you are owed against the time and resources required to pursue the client, and consider the likelihood of collecting any judgment that is received as a result. Are you willing to give the matter the time and attention needed to bring it to a jury trial in two years or more? Would the same time spent on marketing generate more money? And how would taking action against your deadbeat former client affect your standing with current and potential clients? Would the adverse publicity impact your business? In my practice I generally elect to cut my losses as early as possible and move on. Having said that, I do not take the position that a deadbeat client should never be pursued. If you are known for that position, then a client may take advantage of you.

DARRELL G. STEWART is a business, real estate, and estate planning attorney in San Antonio, Texas. He may be reached at dgs@lodgs.com or via www.linkedin.com/in/darrellgstewart.

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MONTANA JUDGES

A eulogy for Judge Joe By Dorothy Bradley Montana attorney n the day of 11-11-11, I was told to be on the lookout for miracles. I remember saying that I wasn’t too big on miracles but I tried to never miss an act of kindness. Then I heard news of [former Bozeman District] Judge Joe Gary’s hospitalization with little hope of recovery. What I immediately thought is that Judge Joe was the embodiment of kindness, and the existence of a person with such a compassionate, wise, and loving heart is indeed the best of miracles. [See Judge Gary’s obituary on Page 28.] By a stroke of extraordinary good fortune I became Judge Gary’s law clerk in 1983. I couldn’t have found a more riveting place to move me beyond the unforgiving turmoil of law school where all the students are trying to beat you and all the professors are trying to flunk you. My law clerk office in the Judge’s chambers was mobile – either in his courtroom when it was not in use, or in his jury room when it was not in use. To the best of my recollection the only material item Judge Gary ever requested from the County was a round jury table, like King Arthur’s, since we discovered fairly quickly that dominant personalities sat at the heads of rectangular tables and this simple change put every juror on equal footing with equal voice. After that we called him “The Fairest One of All.” But in truth I never met a fairer person, nor one who watched the details around him more carefully to assure he was working in a fair world. Judge Gary was deeply respected and much honored during and after his legal and judicial career. But the kindness and wisdom he brought to this overwhelmingly serious job are what should be most remembered.

I NOTICED THAT the people were more relaxed in his courtroom than in most, and on many an occasion he would remind them, “This is your courtroom.” And the lawyers as well knew that he was very generous in giving them every chance to make their cases, although nothing would slip by his razor-sharp mind. Which reminds me that right up to his last week of life, Joe could discuss the details of almost every case that came before him – an incredible testimonial to his knowledge of the law and insistence on fairness. Judge Gary was as secure a person as I have ever known. I asked him how he grew up so confident and secure, and he laughed and said, “I had five sisters and they all thought I was god.” It was another quality that made him an exceptional judge. He did his best, his best was very good, and he was ready to stand by it. Once he had an opponent in a race for reelection – a person who is a good friend of mine, actually. The Judge worked hard and won handily. He won so handily that he wasn’t going to waste time looking at the returns, but I

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found him in his office studying them privately, and he said with some of what his children call his salty language, “Well who the blankety are those 15 people in Three Forks who evidently don’t think I’m a good judge?!!” And then of course he broke into loud chuckles at his own good humor. I remember working on a difficult marital dissolution. In the morning I received an off-the-record call from an organization that supported women in divorces, and the spokesperson said, “You know, you really should be aware of the fact that Judge Gary is getting a reputation for being more on the side of men.” In the afternoon I received a call from an organization that supported men in divorces, and the spokesperson said, “You know, you really should be aware of the fact that Judge Gary is getting a reputation of being more on the side of women.” This is a true story. Judge Gary generally felt that if everyone was unhappy he was pretty close to the mark.

Judge Joseph Gary

THE ONLY TIME I saw Judge Gary choked up was when he wanted to pick up a little boy at the drinking fountain across from his chambers. He told us afterward, “It occurred to me that it wouldn’t look good to have someone walk by and see me helping him. I’m just a grandfather at heart and I hate how we have created a world where such a gesture can look suspicious.” And, of course, dealing with children was a huge passion of his. He established a guardian ad litem program to assure advocacy in the judicial system for abused and neglected children which even today it is the best model in the state of Montana. In some of the most heart rending custody cases Judge Gary sometimes would include me in his private conversations with the children. Even little kids could sense his love and concern for them, and he was so, so careful to get their sentiments without ever making them feel they had to say anything so terrible as which was their favorite parent. AS FAR AS HIS judicial disposition, the Judge’s longest, darkest nights were over sending offenders to prison. Those were his deepest struggles on the bench. But he would say afterword, “That is what they pay me for.” However, seeing the limits of his judicial options, he took it upon himself to lobby the Legislature for changes in the law to allow sentencing offenders to be treated in their own community rather than sending them to prison. I noticed the Legislature gets in quite a

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DECEMBER 2011 / JANUARY 2012

stir when a judge shows up. We all benefit from his effort today. Joe always believed in a second chance and received countless personal letters from youths who gave him full credit for turning their lives around. On his retirement the Bozeman

Chronicle did a feature of him with a headline that read, “Judge with a Heart.” It was also engraved on his gavel. And it couldn’t be said any better.

BAR/BENCH BRIEFS Attorney files for Supreme Court seat Elizabeth (Beth) Best has officially announced her candidacy for the Montana Supreme Court justice seat that will be open when Justice Jim Nelson retires at the end of next year. She stated in a press release that she “is running for the Court because I believe in public service, and access to justice for every person as guaranteed by our Constitution.” Ms. Best has lived in Montana nearly all of her life. She attended Great Falls public schools starting in kindergarten, graduated from Charles M. Russell High School in 1974, received her undergradu- Elizabeth Best ate degree at Montana State University in Bozeman, and her law degree from the University of Montana School of Law in 1981. She met her husband, Mike Best, in law school. After law school, they served together in the U.S. Army stationed in Germany. Ms. Best prosecuted crimes, provided legal services to soldiers, and taught the law of war to soldiers. After returning from the Army in 1984, she clerked for U.S. District Judge Paul Hatfield in Great Falls before opening a private practice with her husband. They have been in private practice together in Great Falls ever since. The Bests raised two kids on their small family ranch south of Great Falls. Ms. Best served for six years on the board of trustees for the Centerville Schools. Since 1985, Ms. Best “has demonstrated her commitment to access to justice for all individuals while representing Montanans from all over the State,” her press release said. She has served as the chair of the Montana Board of Labor Appeals, and is now the chair of the Montana State Fund Board.

Commission on Practice moves office The Montana Supreme Court’s Commission on Practice has moved its office and changed its phone number. The Commission is now at 301 S. Park, PO Box 203005, Helena MT 59620. The new phone number is (406) 841-2976. Susan Parshall has taken Shauna Ryan’s position as staff.

Duke Crowley biographer needs help Missoula attorney Robin Ammons is putting together a biography of retired University of Montana Law Professor Duke Crowley and would appreciate all the input that State

DECEMBER 2011 / JANUARY 2012

Bar of Montana members might have to offer. “The Duke” is nearly 89 years old and happily living in his home not far from the Law School,” Ms. Ammons told The Montana Lawyer. “Many of his students can quote him to this day and all have their own memories of him. I would like to mine some of those.” Ms. Ammons is asking that Professor Crowley’s students, colleagues, and friends write, call, or e-mail her “any information you can recollect – from a small tidbit to organized recounting of a case he used to teach us about law. Like the ‘.22 caliber man in a .357 situation’ – who can give context to that unforgettable punchline? Or ‘two eyes peeking through a tumbleweed’ – do you remember who he was talking about?” Ms. Ammons can be reached at robinammons@aol.com.

New MSU guide on power of attorney A new MontGuide explaining the power of attorney law that was passed by the 2011 Montana Legislature is now available from Montana State University Extension. Co-authors of the publication are Marsha Goetting, MSU Extension family economics specialist, and E. Edwin Eck, professor and former dean at the University of Montana School of Law. The MontGuide is available free on the web at: www.montana.edu/estateplanning.

Law Review launches new website The Montana Law Review launched a new website in November. Ushering the Law Review into the era of electronic publishing, University of Montana School of Law Professor Larry Howell has written an article titled: “Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings.” The article discusses the case Western Tradition Partnership v. Attorney General currently before the Montana Supreme Court concerning Montana’s century-old ban on indepedent corporate expenditures in campaigns for elected office. To accompany Professor Howell’s article, the Review has digitized its past Legal Shorts in a text-searchable format. The Review will continue to publish electronic articles on a limited basis and welcome submissions from authors interested in publishing in such a format, the Review staff said. The website is at www.montanalawreview.com.

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STATE BAR NEWS

Bar hires new communications director The State Bar of Montana has hired a Helena journalist to replace its communications director, Charles Wood, who will retire on Dec. 31. Peter Nowakowski will begin work at the State Bar offices in Helena on Dec. 19. Mr. Nowakowski has a 2003 bachelor of arts degree in Journalism from the University of Montana. He is a former assistant news editor and city editor at the Helena Independent Record. He was a copy editor for the Great Falls Tribune and the Ravalli Republic in Hamilton. He also worked as a technical writer for the Montana Department of Revenue, providing editorial guidance for the department’s publications, including forms and income-tax booklets. Mr. Nowakowski brings many digital pubishing and Internet skills to the Bar. He also gained experience in the legal field as a process server and levying officer for Equity Management

Inc. of Missoula. Mr. Nowakowski, his wife, baby boy, and pet Yorkie live in Helena. Mr. Wood, 65, is retiring from the State Bar after serving 12 years as its communications director and as editor of The Montana Lawyer magazine. A journalist for 45 years (he started as a daily newspaper reporter at age 19), he came to the Bar after serving 14 years as the editor of the Helena Independent Record. Mr. Wood, his wife Anne, and their two Yorkies will continue to live in Helena.

STATE BAR CALENDAR December 14 Phone CLE: Probate Update, noon-1 p.m. Technology Committee conference call, 10 a.m.

January 13-15 CLE & Ski, Big Sky Resort January 16 News & advertising content deadline for February Montana Lawyer

December 21 SAMI Phone CLE: Is it Time to Retire?, noon-1 p.m.

January 25 Phone CLE / Webinar: Overview of Drug/DUI Courts, noon-1 p.m.

December 26 State Bar offices closed

February 1-7 ABA Mid-Year Meeting, New Orleans

January 2 State Bar offices closed

Febuary 2 Phone CLE / Webinar: Appellate Practice Tips, noon-1 p.m.

January 6 State Bar Executive Committee meeting, 10 a.m., State Bar offices, Helena January 10 Phone CLE: Children in Divorce, noon-1 p.m. January 11-12 Wednesday Webinar: Online Resources for attorneys, noon-1 p.m.

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February 8 Phone CLE / Webinar: Physical & Mental Examination of Persons Under Rule 35, M.R.Civ.P., noon-1p.m. February 10 State Bar Executive Committee meeting, 10 a.m., State Bar offices, Helena February 27-29 Bar Exam, Great Northern Hotel, Helena

THE MONTANA LAWYER

Peter Nowakowski will be the new editor of The Montana Lawyer magazine.

www.montanabar.org

Now playing on the Bar’s website

You must register for State Bar phone CLEs and webinars only on the website (see story at bottom of next page).

We’ve updated our Legal Research link to add information about limited scope representation.

Recent Montana Supreme Court Orders, including latest rule changes.

A link to the new Montana Law Review website.

Your own member profile.

Today’s Top Legal News, including the top Montana legal news articles. DECEMBER 2011 / JANUARY 2012

Upcoming CLE seminars for Montana lawyers CLEs with Ethics & SAMI* credits are noted with “Ethics” in boldface below

Other web & phone CLEs for Montana credit are:

*Substance Abuse / Mental Impairment 5.0 Ethics credits required every 3 years – 1.0 of them must be a SAMI credit. See www.montanabar.org for SAMI updates.

For the State Bar of Montana’s approved online

December 14 Phone CLE Probate Update 1.0 CLE credit. CLE Institute of the State Bar of Montana, (406) 447-2206

MTLA's SeminarWeb Live! Seminars at www.sem-

December 14 Webcast

Thurgood Marshall’s Coming! 3.0 CLE credits, including 3.0

CLEs, go to www.montanabar.org and click CLE / Online CLE Courses inarweblive.com/mt/index.cfm?showfullpage=1&eve nt=showAppPage&pg=semwebCatalog&panel=bro wseLive Lorman Education Services’ teleconferences at

Ethics (no SAMI) credits. Periaktos Productions, (605) 7877099

www.lorman.com/teleconferences/

December 21 SAMI Phone CLE Is It Time to Retire? 1.0 SAMI Ethics credit. CLE Institute of the State Bar of Montana, (406) 447-2206 January 10 Family Law Phone CLE Children in Divorce 1.0 CLE credit. Family Law Section of the State Bar of Montana

The National Business Institute's live teleconfer-

ences at www.nbi-sems.com/Default.aspx/? NavigationDataSource1=N:304

January 18 SAMI Phone CLE

SAMI topic to be announced 1.0 SAMI Ethics credit. CLE Institute of the State Bar of Montana, (406) 447-2206

January 11-12 Webinar

Online Resources for attorneys Noon-1 p.m. 1.0 CLE credit. January 25 Phone CLE / Webinar

CLE Institute of the State Bar of Montana, (406) 447-2206

Overview of Drug/DUI Court Programs 1.0 CLE credit. CLE Institute of the State Bar of Montana, (406) 447-2206

January 13-15 Big Sky – Huntley Lodge

CLE & Ski 10.0 CLE credits. CLE Institute of the State Bar of Montana. Details will be mailed to members and posted at www.montanabar.org. January 17 Missoula – UM Law School Veteran’s Law CLE 3.0 CLE credits, including 1.0 Ethics (no SAMI) credit. Univeristy of Montana School of Law, (406) 243-6509

The only way to register for the State Bar of Montana’s upcoming phone CLEs or webinars is through your Bar member portal at www.montanabar.org. With so many phone and webinar CLEs scheduled,” said CLE Coordinator Gino Dunfee, “this is the only way we can offer them at a low price – by using online registration and cutting out time required to process a registration over the phone or in the mail with a check.” If you don’t know your Login Name or Password, any Bar staff member can look it up for you.

DECEMBER 2011 / JANUARY 2012

Febuary 2 Phone CLE / Webinar Appellate Practice Tips Noon-1 p.m. 1.0 CLE credit. CLE Institute of the State Bar of Montana, (406) 447-2206

On the State Bar website: www.montanabar.org

CLE seminar list updated daily under “CLE”

A way to save money on CLEs Remember, in your Login Name, there is no space between your first and last name, and it is case sensitive, so only capitalize the first letter of the first and last name, the rest are lower case. Example:

The Password also is case sensitive: capitalize the initials, and no spaces between the letters and the numbers. “I’ve assisted several attorneys by providing their Login Name and Password and letting them know why we are doing this – and they seem fine with it, once they understand it,” Ms. Dunfee said. “Meanwhile, go into your member profile and see how easy it is to navigate,” Ms. Dunfee suggested to members.

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State Bar of Montana Bookstore These Montana legal manuals and videos are for sale or rent via this mail-order catalog. Other Montana Bar-produced video seminars, are available for download to your computer on the Online CLE catalog at www.montanabar.org.

LEGAL PUBLICATIONS

MT Family Law Form Book 2005, 93 pages incl. 26 forms Book and CD $150

Montana Real Estate Transactions 2010, 360 pages, $180

Montana Citizens’ Guide to the Courts 2010, 20 pages, print copy $10 Free download at www.montanabar.org

Montana Students’ Guide to Turning 18 2008, 22 pages, CD $10 Free download at www.montanabar.org

Montana Probate Forms 2006, 288 pages Book plus CD $150

Civil Jury Instructions (MPI – MT Pattern Instructions) 1999 w/2003 Update, 400 pages Book plus CD $200

2010 Annual Meeting CLEs

2010, 192 pages annotated CD $40

5 DVD set $150 or separately for $35 Includes written materials on CD

Public Information Flyers

2010 Eminent Domain Update

tri-fold brochures, $10/bundle of 100 Client Bill of Rights Dispute Resolution Divorce in Montana How Lawyers Set Their Fees Purchasing Your Home Renting a House or Apartment Small Claims Court After an Auto Accident When You Need a Lawyer Wills & Probate

5 DVD set $150 or separately for $35 Includes written materials on CD

1998, 95 pages w/2001 Update Book $25

2010 edition 650 pages, on editable CD only CD $130

Step-parent Adoption Forms 2003, 5 forms Book $20

Handbook for Guardians & Conservators 2005, 60 pages incl. 5 forms Book plus CD $150

U.S. & Montana Constitutions Pocket-sized booklet $4 each

2012 Lawyers’ Deskbook & Directory Book, $50 Mid-year update CD for 2012, $20 Both, $60

(Maximum self-study credits is 5.0 per year)

Public Discipline Under MT Rules of Professional Conduct

Statute of Limitations Manual

Criminal Jury Instructions

MONTANA CD/DVD SEMINARS

University of Montana Law Review

2009 Substance Abuse/Mental Impairment Presentation 1.0 SAMI credit $35, plus $25 deposit DVD, print materials included

2009 Criminal Law Ethics DVDs 6 DVDs set ($150) or separately ($35 each) 1. Do Not Reveal Your Client’s Perjury – 1.0 Ethics credit 2. Fairness & Due Process in Disciplinary Proceeding – 1.0 Ethics credit 3. In Praise of the Guilty Project – .75 Ethics credit 4. Loyalty Apocalypse – 1.25 Ethics credits. 5. Accountability for Prosecutorial & Defense Attorney Misconduct – .75 Ethics credits 6. Common Dilemmas in Criminal Ethics – 1.0 Ethics credit.

Subscribe at www.umt.edu/mlr

Public Lands Law Review Subscribe at www.umt.edu/publicland

TO ORDER To pay by check, please fill out the mail-in form below: Send the item(s) circled above to: Name ______________________________ Mailing Address _______________________________ Street Address _____________________________________City, State, Zip___________________ E-mail address__________________________________ Amount Enclosed ____________________ Mail order & check to: State Bar of Montana, PO Box 577, Helena MT 59624

To pay by credit card, please see the online Bookstore at www.montanabar.org (Payment must accompany all orders)

Malpractice Prevention Ethics Series 6 DVDs as a set ($150) or separately ($35 eacht) 1. Malpractice Traps - 1.0 Ethics credit 2. Dancing in the Minefield: Ethics in the Electronic Era - 2.0 Ethics credits 3. The Ten C’s to Malpractice Prevention - 1.0 Ethics credit 4. Malpractice and the Impaired Lawyer - 1.0 Ethics/SAMI credit 5. Risk Evaluation from an Insurer’s Perspective - 1.0 Ethics credit 6. The Impossible Happens: Your Client Turns on You - 1.0 General CLE credit FOR THE FOLLOWING: Send 2 checks – one for $75 rental fee, one for $25 security deposit

Consumer Law Series Phone CLEs – Parts I, II, & III

The following are 1-hour length, 1.0 (self-study) CLE credit $50 each Written material included

Primer on Understanding Tax Returns (January 2011) By Mars Scott

Refresher on the Indian Child Welfare Act (October 2010)

3.0 CLE credits, 3-CD set

Tools to Help Manage Probates

Surviving Credit Card Debt

Guardianship & Conservatorship

5.0 CLE credits 2 DVDs, print materials on CD included

FREE 16-CD ‘TRIAL GUIDES’ SET With $50 refundable deposit ‘Facts Can’t Speak for Themselves’ No CLE credit

AUDIO CDS Investigative Tools for Lawyers on the Internet - March 2011 webinar $45 for CD

CLE MATERIALS

Rules Update 7 CD set from Feb. 2011 CLE Civil Procedure Bankruptcy Court Federal Civil Procedure Federal Pleading Standards Workers’ Compensation Water Law For sale at $50 per CD with written materials on separate CD

on CD or via e-mail, $35

CLE materials from 2011 A-TEAM APPROACH”: ATTORNEY/PARALEGAL PRACTICE TIPS – March, Missoula E-Discovery Practice and Pitfalls BEAT THE DEADLINE – May, Helena BENCH-BAR CONFERENCE – February, Bozeman CLE & SKI – January, Big Sky FAMILY LAW – March, Great Falls FAMILY LAW – March, Billings MEDICAL MARIJUANA UPDATE – March, Butte NATURAL RESOURCE PERMITTING – April, Helena PRACTICAL PRACTICE TIPS – April, Missoula REAL ESTATE UPDATE – February, Fairmont Hot Springs

ADA Update Divorces Involving State Retirement Accounts

Using Discovery in Family Law Cases

For a listings of topics for the CLEs above, and to request CLE materials from 2010 or earlier, contact Gino Dunfee at 447-2206

What Every Attorney Needs to Know About the HITECH Act (April 2010) Two CDs - Part I, General Overview - Part II, Busines Associates and Agreements under HITECH

For online CLE seminars, go to www.montanabar.org under “CLE”

Social Media and Lawyers April 2011 webinar $45 for CD

State Bar of Montana members get 15% discount off all ABA publications. Go to www.ababooks.org and enter the code PAB7EMTB when ordering.

Montana’s Lawyers Assistance Program Hotline

1-888-385-9119 Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction

ACCESS

TO JUSTICE

Foundation helped advocates, now advocates help foundation By the Montana Justice Foundation In 1996, two former legal-aid attorneys submitted a proposal to the Montana Justice Foundation (MJF) for seed money to open a much needed non-profit whose mission was to provide Social Security Disability advocacy for those who could not afford legal representation. The MJF responded by supporting these pioneers with grant funding, and the People’s Law Center (PLC) was born. Thirteen years later, the PLC is thriving and giving back to Montana communities including its former benefactor, the Montana Justice Foundation. “In the beginning there, it was hand-to-mouth” said Susan Gobbs, executive director of the People’s Law Center. “Without the financial assistance given by the Montana Justice Foundation it is doubtful that PLC would have survived its first few years and could not have become the organization that it is today.” These days, the PLC is in a position to award grants to social services agencies across the state, primarily those work-

DECEMBER 2011 / JANUARY 2012

ing with individuals who have little or no resources to pay for medications, medical equipment, vision and dental care. And for the past three consecutive years, the PLC board has chosen to give back to the organization that provided them with the means for start-up by making a significant gift to the Montana Justice Foundation – this year, $30,000. “We are so grateful for the PLC’s ongoing support in such critical times,” said MJF Executive Director, Amy Sings In The Timber, “We stand in the wake of a 75 percent drop in overall funding for Montana access to justice programs yet the need for civil legal aid continues to rise.” The main source of this loss is sustained historically low Interest on Lawyers Trust Account (IOLTA) funding. In an effort to protect the faltering U.S. economy, the Federal Reserve slashed federal fund rates in December of 2008, causing a leveling of IOLTA revenues. Low rates have persisted and, at some financial institutions, continue to fall. These cuts have had a devastating impact on funding for civil legal aid in Montana and throughout the nation. The IOLTA Program provides for a significant portion of local legal aid funding. And the MJF, which has administered the IOLTA program for the past 25 years, faces an unprecedented emergency.

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COURTS

Major bar exam changes ‘conditionally’ accepted The Montana Supreme Court issued the following order, signed by all seven justices, on Nov. 29: No. AF 11-0244 IN RE THE PETITION FOR ADOPTION OF THE UNIFORM BAR EXAMINATION and IN RE THE PETITION AND MEMORANDUM IN SUPPORT OF REVISION OF THE 2005 RULES FOR ADMISSION AND RULES OF PROCEDURE OF THE COMMISSION ON CHARACTER AND FITNESS OF THE SUPREME COURT OF MONTANA In May 2011, the Montana Board of Bar Examiners petitioned the Court for authority to adopt and administer the Uniform Bar Examination (UBE) as the testing component of the Montana bar admissions process. In a related petition filed under the same cause number, the Commission on Character & Fitness petitioned to revise and amend the Rules for Admission and Rules of Procedure of the Character & Fitness Commission to permit use of the National Conference of Bar Examiners (NCBE) online application and character investigation. The Court invited written comments on the petitions, and comments were filed by numerous interested parties. The Court received additional comments at public meetings held on Oct. 25, 2011, and Nov. 29, 2011. After consideration of the petitions and the public comments received, the Court concludes that both of the petitions have merit, but that logistical questions remain regarding the implementation of the proposed revisions. Therefore, the Court has determined to conditionally grant the petitions, subject to review of an implementation plan, prior to final approval, to be prepared by the Board of Bar Examiners. The plan should: Provide a step-by-step time line explaining the process an applicant will follow, from applying for the examination and the character investigation through admission to the Bar,

Group sues to stop election of Montana justices by districts A group of Montana voters — including several 1972 Constitutional Convention delegates — filed suit on Nov. 23 to invalidate a 2012 ballot measure that would require Montana Supreme Court justices to be elected by district, instead of statewide, Lee Newspapers reported. The lawsuit says the referendum,

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under the proposed revisions; List all costs an applicant will pay for each step of the process and at what point each cost will be assessed; Provide a more definitive proposal for the educational/online testing component for Montana law which the petition proposes; Provide an assessment of the impacts, if any, upon Bar staffing and/or the Bar's budget which will result from implementation of the petitions; Indicate the effective date for implementation of the revisions, including the date on which applicants will enter the new system; Using any available data from the NCBE and the Montana Board of Bar Examiners, provide information regarding the number and failure rate of minority students who take the MBE, the MPT and the UBE, and any assessments of how this failure rate can be ameliorated. In preparing the implementation plan, the Board of Bar Examiners shall consult with the Commission on Character and Fitness and the State Bar in order to provide answers to the questions related to those entities within the implementation plan. The Board may also receive further comment or suggestions from interested members of the public. The Court intends to revisit this matter in 120 days, by which time the Board shall file its implementation plan.

New appellate-procedure rules amended In April 2011, the Montana Supreme Court adopted new Montana Rules of Appellate Procedure, with an effective date of Oct. 1, 2011. In two orders issued on Nov. 29, 2011, the Court amended the new rules to resolve various conflicts. The orders: Amend Rule 6 of the Rules of Appellate Procedure, regarding the time for filing a notice of appeal from an order permitting or refusing class certification, among other fixes. Amends M. R. Civ. P. 23(f), providing for appeals from an order permitting or refusing class certification or rejecting a proposed class settlement, because it conflicts in part with the Montana Rules of Appellate Procedure.

See the Court orders, with the entire revisions, on the home page at www.montanabar.org

which was placed on the June 2012 primary election ballot by the 2011 Legislature, would illegally amend the state constitution and therefore should be stricken from the ballot. It also said passage of Legislative Referendum 119 (LR-119) would restrict voters’ constitutional right to vote for any Supreme Court justice candidate in the November 2012 general election and potentially disqualify Supreme Court candidates who succeed in the June 2012

THE MONTANA LAWYER

primary election. “The referendum is illegal, unconstitutional and void, in that it deprives (voters) of their right to vote for certain Supreme Court candidates,” said the suit, which was filed in state District Court at Helena. LR-119 is the result of Senate Bill 268, which was sponsored by Sen. Joe Balyeat, R-Bozeman, and is scheduled to be on the June 5, 2012, primary election ballot.

DECEMBER 2011 / JANUARY 2012

CHRISTMAS SHOPPING

IPad for attorneys: a tool or a toy? By Sharon D. Nelson and John W. Simek he question in the title can lead to the eruption of a religious war. Even the authors disagree. John thinks the iPad is more of a toy – Sharon acknowledges the toy aspect, but has seen lawyers effectively use the iPad in their practices. So .... she wheedled until she was given leave to purchase one. In all candor, she became immediately addicted to Angry Birds and persisted until she had killed all the green pigs on every level. But that pathetic confession aside, she took a tip from friend and colleague Tom Mighell, who has written a terrific book for the ABA Law Practice Management Section entitled iPad in One Hour for Lawyers (see article at right). The tip was to search the absolutely overwhelming Apps Store (currently 65,000 apps and more being added every day) with the words “law” and “legal” and terms related to areas of practice, case management, etc. Ever the avid reader, Sharon built a library of legal books – most free or 99 cents – the notable exception being Black’s Law Dictionary which cost $54.99. She also has the Declaration of Independence and the Constitution, along with a raft of the most notable legal documents in history.

FUNCTIONALLY, much of what a lawyer has to do is not particularly wellhandled by the iPad. We have yet to find any application that supports “track changes” and comments completely and Documents to Go Premium can only view them – and there is no file management system on the iPad. John says everything is a kludge. Sharon says most of it is, but there are workarounds. Now workarounds are not a great thing, but they do get the job done – and this is still a product in its infancy. Moreover, it is so very light and portable – that feature alone is worth a lot. But is it worth a loss of functionality or significant

DECEMBER 2011 / JANUARY 2012

“Rube Goldberg” gyrations to get things done that are native to other computing environments? Unless you have your documents and data stored on the iPad there is little functionality if you don’t have connectivity. Make no mistake about it, the iPad is extremely dependent on connectivity (WiFi or 3G) if the data isn’t stored on the device. What does that mean? If there is no WiFi hotspot or 3G access isn’t available, your cloud services will not be available so you’re essentially screwed. LET’S LOOK at another shortfall – printing. Lawyers love their paper and iPad users will be foaming at the mouth when they can’t generate paper from that slick sheet of glass called an iPad. So how do you print anything? If you’re lucky enough to own one of the five or so printer models that support over-theair printing, there isn’t a problem. However, most folks will have to transfer the data (another kludge) to some other device or jump through hoops and pray to the printing gods to get some sort of paper output. Just be aware that printing is a pain from the iPad and that you’ll need reliable wireless connections if you use a lot of cloud services. Let’s take an example: To work with a Word document attached to e-mail, you’ll need to open it in an App like “Documents to Go” to review and edit it. If a PDF, you’ll do the same thing with a program such as iAnnotate. Working on the iPad’s keyboard is clumsy – some are better at typing on it than others but it is just too small for most folks. A lightweight Bluetooth keyboard is the answer here. Some iPad covers even come with the keypad embedded. You can find a number of them at Amazon’s site. WE BOTH sometimes act as law practice management auditors for the Virginia State Bar from time to time and it is here that we have seen the iPad

THE MONTANA LAWYER

A helpful book: ‘IPad in 1 Hour for Lawyers’ A great resource is the book “iPad in One Hour for Lawyers” by Tom Mighell, attorney and technology writer. He publishes the website iPad 4 Lawyers, a great source for iPad tips and app reviews. The aim of this book is to teach a lawyers the essentials of using an iPad but to do so in a book that can be consumed in just an hour. And you really can read this book in about an hour. There are six lessons in the book: 1. Navigating Your iPad and Browsing the Web 2. Setting Up Mail, Calendar, and Contacts 3. Managing Your iPad: Multitasking and Folders 4. Adding Files to Your iPad and Syncing Them 5. Being Productive on the iPad 6. Doing Lawyer Things on Your iPad — Legal Apps After the six lessons, the book then includes a "beyond the lessons" section that discusses some advanced topics like security, shortcuts, and advanced e-mail options. Get a hard copy or electronic copy of the book from the ABA ($34.99, or $19.99 for Law Practice Management Section members).

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shine. Lawyers who tell themselves “I’ll enter time and billing and return those client e-mails later today or over the weekend” often just don’t get to it – they end up in ethical trouble for failure to communicate with the client or for not keeping contemporaneous time. The iPad can save these folks from themselves. It is so light to carry around in a purse or briefcase – while hanging around court, it is easy to work on your practice management apps entering time, contacts, making calendar entries etc. Clio and Rocket Matter are both fine programs that lawyers seem to love and they are priced modestly. In this way, dead time becomes productive time – and things that ethically need to get done right are more likely to get done right with the iPad. Having seen this in the field, we are persuaded that the iPad provides an invaluable tool when struggling to keep up with daily tasks.

iPad is just as insecure as the iPhone since it runs the same iOS. Just put the sucker in DFU (Device Firmware Upgrade) mode and you can do all sorts of nasty little things since the operating system isn’t fully loaded yet. Researchers have already been able to bypass a PIN code on a fully patched iOS device in 2 minutes. Even with that vulnerability, a PIN lock code is better than no lock code. [How about securing your iPad with a strong passcode? See

the article on ultra-secure passwords in the November 2011 Montana Lawyer.] And a hint from us – the bad guys can now crack any eight character password in less than two hours. But an alphanumeric password (passphrases work well) of 12 characters currently takes 17 years to crack. ‘LawPractice2011!’ will do nicely. With a nod to Tom Mighell again — and his wonderful book — he has shared some of his favorite iPad apps below:

Apps - Legal Trial Pad Easy-to-use app for preparing and presenting presentations for trial. iiuror Juror selection tool. Jury Tracker Facilitates collecting jury information and observations about jurors during trial. Evidence Image presentation software for trial lawyers.

IT IS IMPOSSIBLE to write an article about the IPad without discussing security. While we wish we could avoid the subject so we could avoid getting flamed by Apple’s legion of fanboys, the

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Apps - Productivity BT Chat HD. Sets up a Bluetooth chat connection between multiple iPads; use it

THE MONTANA LAWYER

DECEMBER 2011 / JANUARY 2012

in trial and in depositions for co-counsel and experts to discuss testimony. Penultimate Take notes that are handwritten only. NoteTaker HD. An app for writing and organizing handwritten notes, diagrams etc. GoToMeeting. Allows you to attend online meetings by tapping a link in your invitation e-mail. View anything the meeting organizers choose to share. WebEx. Likewise, allows you to join meetings from your iPad. Fuze Meeting. Start, host, and attend web conferences, view multimedia content and chat with others. SignMyPad. PDF reader and annotation tool. Allows you to add your signature. DocuSign. The app lets you send, track and sign documents from anywhere. GoodReader. A very robust PDF reader, now with encryption features. Documents to Go. View and edit Work, Excel and PowerPoint files, PDF viewer, view and edit e-mail attachments. Quick Office. Create, edit and share Microsoft Office files.

Office2. View, create and edit Word and Excel files. iAnnotate. Everyday usage to annotate medical records and pleadings. GV Connect. The best Google Voice app I have used. Air Sketch. Used in trial and in depositions for a witness to draw on a picture and simultaneously display on a projector. Trial Touch. Used in trial already and it’s a fantastic trial presentation app. PhotoSync. Transfer photos and videos to/from iPad/iPhone/Desktop. 1Password. Generates random passwords, stores and syncs them with all of my iPads/iPhones and desktop browsers. OmniFocus. Greatest task management app. Notability. Records audio while I take notes in depositions and syncs the audio playback with my notes.

While most apps are inexpensive (or even free) some of the legal apps cost more than you might think, and boy oh boy is it easy to just hit the “buy now” button. Before you know it, you can rack up quite a bill. This is a further good argument for doing some research and relying on experts. At this year’s ABA TECHSHOW, we were all amazed at the number of attendees taking notes on iPads. We are continually astonished by how many iPads we see being used in courtrooms. John can mutter “toy” all he wants – Sharon remains convinced that, clumsy though some of its functions may be currently, we are seeing a tool that will mature to become an invaluable part of legal technology.

Authors SHARON NELSON, Esq. and JOHN SIMEK are the president and vice president of Sensei Enterprises Inc., a computer forensics, information security, and legal technology firm in Fairfax, Va.

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HARRISON, from Page 5 Bobcats from 1931 through 1933. He was also on the track team. In 1932, he joined the Beta Rho chapter of the Sigma Chi Fraternity, beginning what was to be an almost 80-year membership as a devoted Sigma Chi. In 1935, Justice Harrison enrolled at the University of Montana School of Law. There he met Virginia Flanagan, a brilliant undergraduate from Great Falls. “She was so bright she could read the entire book the night before an examination and get an A,” he later recalled. Their courtship was interrupted when his injudicious exchange of words with a professor earned him an involuntary “sabbatical” from law school at the end of his second year (Mr. Johnson reported that he was expelled). In the summer of 1936, a fraternity brother helped Justice Harrison get a job driving “Red Buses” in Glacier National Park. He was a gear jammer the summers of 1936, 1937, 1939, and 1940. His love for Glacier continued throughout

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his lifetime where his family vacationed every summer on Lake McDonald. In 1937, Justice Harrison left for Washington, D.C., “where he discovered that the best job open to a former president of Montana’s Young Democrats with two years of law school under his belt was inking letters onto the spines of books in the Library of Congress,” his obituary said. The following year he was admitted to George Washington University Law School, where he earned top marks and graduated in 1940. The U.S. Army called him into active service in September 1940. In August 1941, he and Virginia Flanagan were married in Great Falls. His Army service with the 7th Corps posted him in England in 1943, where he worked on the planning for D-Day Operation Overlord. He followed the 7th Corps through France and Holland and into Germany for V-E Day in 1945, and after the war remained in the Army Reserve, retiring as a full colonel. He was awarded the Croix de Guerre medal from the French government.

The Harrisons moved to Helena in 1946, where they raised six children. In November 1960, he was elected a justice on the Montana Supreme Court and was re-elected in 1966, 1972, 1978, and 1986. Judge Harrison was national president of the American Lung Association in 1967 and was a member of the Helena Kiwanis Club for more than 60 years. He loved scouting, serving for more than 20 years as scoutmaster of a Helena troop and for decades was on the Montana Boy Scout Council. A strong supporter of Carroll College in Helena, he also spent many years on the school’s President’s Council. Justice Harrison’s wife Virginia died in 1984. His second wife, Ethel, whom he met while she was clerk of the Montana Supreme Court, died in 1998. Justice Harrison also was preceded in death by a son, Pat Harrison. His survivors include his daughters Nina Harrison, Molly Howard, Dr. Lee Harrison, and sons Bob Harrison and Randy Harrison.

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NEWS ABOUT MEMBERS Hollie Lund, originally from Washington and, most recently, Oregon, joined Doney Crowley Payne Bloomquist in Helena in August and was admitted to the State Bar of Montana in September. Dr. Lund graduated with a Ph.D. in Urban Studies, with an emphasis in planning and transportation policy from Portland State University in 2001, and received her juris doctorate from Lewis & Clark Law School this year. Dr. Lund will focus her practice on representing private landowners, municipalities, local organizations, and others in land-use law and related natural resource issues facing communities throughout Montana. After 25 years of criminal defense and family law practice, the attorneys of the Missoula law offices of Bailey & Antenor – Michael F. Bailey and Doreen Antenor – are retiring, and bound for Glenrowan Cattle Company near Tomerong, New South Wales, Australia.

Gerald B. Murphy, of the Moulton Bellingham law firm in Billings, has been named the 2012 Billings Litigation-Banking & Finance Lawyer of the Year by Best Lawyers, a peer-review publication. Mr. Murphy has practiced law in Billings at the Moulton firm for more than 34 years. His practice began with a focus on commercial, real estate, banking, bankruptcy, and litigation, as product liability defense.

DEATHS Joseph Gary, former Bozeman district judge Retired Bozeman District Judge Joseph B. Gary died on Nov. 15 at age 89. Judge Gary was born and raised in Bozeman, the youngest of seven children. He attended Carroll College in Helena, and when World War II broke out, he transferred to Montana State University in the officers training program, and subsequently completed his officers training in the midshipmen program at Columbia University. He served as a lieutenant (JG) in the Navy in the Pacific Theatre in World War II. Upon returning from the war he benefited from the GI Bill and attended the University of Michigan School of Law, where he received his law degree in 1949. After he completed his law degree, Joe and his new wife, Peg, moved to Bozeman, where he and his friend, Mick O’Connell, ran against each other for county attorney. Mr. O’Connell prevailed in the election and promptly appointed Judge Gary as the deputy county attorney. Judge Gary later took up private practice with his law partner of many years, Hjalmar Landoe, forming the firm of Landoe & Gary, subsequently Landoe, Gary, Brown & Planalp. After 30 years in private practice, he was elected state district court judge in 1978. Judge Gary pioneered Gallatin County’s guardian ad litem program in which citizen volunteers serve as advocates for abused and neglected children in the judicial system. He also made himself available to young lawyers to offer them guidance, suggestions, and constructive criticism to help make them successful lawyers. Judge Gary was a founder of Riverside Country Club, president of the state March of Dimes, president of Big Brothers & Sisters of Gallatin County, member of the board of trustees of the Montana State University Foundation, president of the

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Gallatin County Bar Association, and served as the attorney for the City of Bozeman. He served as counsel for the Bozeman School Board and for many years as counsel for Holy Rosary Catholic Church and Resurrection Parish. Judge Gary received honors from the MSU Alumni Association and Bozeman Area Chamber of Commerce. He was a long-time Bobcat Booster, led the fundraising efforts to build the swimming complex and football and track stadium at Bozeman Senior High School, and helped organize the Bridger Ski Education Foundation. Judge Gary was a lover of sports – as a participant he loved golfing and skiing. After being struck by lightning 17 years ago, he had to give up skiing, but continued golfing until just a few years ago. “‘Judge Joe’. . . lobbied successfully to change the laws regarding sentencing options, believing that diverting eligible offenders to community-based rehabilitation programs could be more productive than prison,” his obituary said. “He received repeated recognition for his work on juvenile rehabilitation and was justly proud of his record of having very few cases of probation violation or recidivism.” Judge Gary was honored for his lifetime work by the state and local bar associations and the Montana Trial Lawyers Association. “He was most honored,” his obituary said, “by the many personal letters he received from youths who gave him full credit for the opportunities he gave them to turn their lives around.” Judge Gary is survived by his wife and five children.

James E. Purcell, retired district judge

Bob Grinde, Polson attorney

Other deaths

John Robert “Bob” Grinde, 89, of Polson, died on Nov. 2 at his home. Mr. Grinde was born in Roy in 1922, and in 1935 the family moved to Polson, where Mr. Grinde graduated from Polson High School in 1940. He later attended St. Olaf College for two years in Northfield, Minn., and then enlisted in the U.S. Army and served in the Pacific Theater during World War II. After the war, Mr. Grinde completed his undergraduate studies at the University of Montana in 1948, then attended the UM School of Law. He graduated with his juris doctorate in 1950. He continued his legal studies at New York University where he graduated with an advanced law degree in taxation. Mr. Grinde married Marjorie Burnett in New York City in 1950 and had one child while living there. In 1952, the family moved to Glendive where another child was born and where the family remained for three years. They then moved to Polson in 1955 where their remaining four children were born. While in Polson, Mr. Grinde began working at the former Security State Bank and retired in 1979. Mr. Grinde loved hunting, fishing and outdoor activities, especially those with his family at the cabin at Lake Mary Ronan. Survivors include his wife Marjorie, three daughters and three sons.

DECEMBER 2011 / JANUARY 2012

James E. Purcell, former Butte Silver-Bow district judge, died on Oct. 29 at the age of 81 in Butte. Judge Purcell grew up in Butte. He attended Montana Tech and graduated from the University of Montana in 1952 with a degree in journalism. He served in the Navy from 1952 to 1954, and went on to attend the University of Montana School of Law, graduating in 1958. He practiced law in Butte for 32 years. Judge Purcell began his career with Meyer & Meyer Law Office, went into practice with Rex Henningsen and Earl Genzberger, and ended his private practice career working with Mark Vucurovich and Ross Richardson. In 1990, he was appointed district judge by Gov. Stan Stephens. He was reelected twice. He retired from the bench in 2000. Judge Purcell was selected by the Montana Supreme Court to serve on the Commission on Practice and was a member of many organizations, including Our Lady of the Rockies, Board of Trustees of School District No. 1, Montana Trial Lawyers Association, American Trial Lawyers Association, Defense Trial Lawyers Association, American Legion, and Knights of Columbus. He was a Silver Bow Kiwanis Club president, Butte Elks Lodge exalted ruler and trustee, and Butte Central Education Foundation co-founder and president. Judge Purcell is survived by his wife Mary and two daughters. Beth Lynn Swan, 53, a former employee of Milodragovich, Dale, Steinbrenner & Nygren of Missoula who later established her own transcription business, Swan Secretarial Solutions, died at her home in Missoula on Nov. 20 of breast cancer.

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CLASSIFIEDS CLASSIFIEDS POLICY: Minimum charge of $60 for all ads. Ads over 50 words charged at $1.20 per word. Send classified ads to The Montana Lawyer magazine, PO Box 577, Helena MT 59624 or e-mail to cwood@montanabar.org. Include billing address. Deadline for the February issue is Jan. 17. There will be no separate January edition. Call (406) 447-2200 for information.

ATTORNEY POSITIONS ATTORNEY: Four-attorney law firm located in Kalispell seeks an attorney to replace a retiring partner. Firm emphasizes litigation but will consider all practices and backgrounds. Contact Todd Hammer or Angela Jacobs at (406) 755-2225 or send a resume and letter of interest to toddhammer@attorneysmontana.com or angelajacobs@ attorneysmontana.com. ASSOCIATE: Well-established Kalispell law firm seeks associate for membership and an office-sharing arrangement. Candidates should have 2 to 5 years litigation experience. The firm concentrates on plaintiff-oriented representation. Contract Alan J. Lerner at Lerner Law Firm, PO Box 1158, Kalispell MT 59903, or e-mail inquires to lerner@ lernerlawmt.com. STAFF ATTORNEY: Defense litigation firm seeks a part-time/flex-time project/research attorney. Compensation depends on eperience. Strong research and writing skills required. Applications kept confidential. Please respond to Nelson & Dahle, 2619 St. Johns Ave., Suite E, Billings MT 59102 or firm@nelson-dahle.com. DEPUTY DISCIPLINARY COUNSEL: Salary up to $80,000, depending on experience, plus benefits. Send resume to: Office of Disciplinary Counsel, PO Box 1099, Helena MT 59624-1099. Closes March 1, 2012.

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OIL & GAS ATTORNEY: Rapidly growing Houston, Texas-based oil and gas law firm is seeking Montana licensed attorneys willing to relocate to its Houston office. The ideal candidate will have experience with oil and gas title work. Candidates with experience in real estate or probate will also be considered. Attorneys with less than two years of desired experience must have graduated in the top 25 percent of their law school class. Sadler Law Firm, 1900 West Loop South, Suite 700, Houston TX 77027; aschuman@sadlerlaw.com; (713) 877-8254. PATENT ATTORNEY: The intellectualproperty law firm of Wells St. John PS in Spokane is seeking highly qualified candidates for a position that ultimately leads to ownership. Candidates having 4-plus years of experience in all aspects of IP practice including litigation, transactional, preparation and prosecution of applications, and all technical disciplines will be considered. Candidates with portables will be considered subject to conflict checks. Interested candidates may submit resumes to the attention of D. Brent Kenady at: bkenady@ wellsstjohn.com. ATTORNEY: Southwestern Montana practitioner seeking to hire attorney for general practice. 2-5 years experience preferred. New graduates may apply. Please send letter of application, references, resume, transcript, and writing sample to W.G. Gilbert III, PO Box 345, Dillon MT 59725. All applications confidential. Open until filled.

ATTORNEY POSITIONS SOUGHT CONSERVE YOUR ENERGY for your clients and opposing counsel. I draft concise, convincing trial or appellate briefs, or edit your work. Well-versed in Montana tort law; two decades of experience in bankruptcy matters; a quick study in other disciplines. UM Journalism School (honors); Boston

THE MONTANA LAWYER

College Law School (high honors). Negotiable hourly or flat rates. Excellent local references. mdenevi@ bresnan.net. (406) 541-0416 SPECIAL NEEDS TRUSTS: U.S. Census Bureau estimates more than 1 in 10 Americans between 16 and 64 is living with some form of physical, mental or emotional impairment. If you have clients who have a family member with these special needs, I would be interested in associating with local counsel or representing the client on this issue. Nationally, huge lawsuits have been successful against attorneys who failed to take the proper steps toward special needs protection. Contact me, Daniel Cahalan at Daniel@cahalanlegal.com or (406) 552-9129. WINNING APPEALS: Let me handle your criminal appeals. Harvard B.A., Hastings J.D. Thirty-six years experience. Contact me, Jon Ellingson at jonelling@gmail.com or (406) 5469084. THE BRIEF WRITER, ESQ.: University of Washington Law School graduate with seven years experience performing investigation, legal research, and writing. Available for court appearances and depositions. Pleadings experience in federal, state, and administrative courts. Access to Westlaw and state law library. For competitive rates, call Genet McCann, Esq. (406) 443-8107 or e-mail thebriefwriter@gmail.com. BUSY PRACTICE? I can help. Former MSC law clerk and UM Law honors graduate available for all types of contract work, including legal/factual research, brief writing, court/depo appearances, pre/post trial jury investigations, and document review. For more information, visit www.meguirelaw.com; e-mail robin@meguirelaw.com; or call (406) 442-8317.

DECEMBER 2011 / JANUARY 2012

LAW PRACTICE FOR SALE FOR SALE OR LEASE: Kalispell law office. Great location; established in 1977; turnkey. Suites of 2-3 professional offices, conference room and file storage. Deal includes furniture, fixtures, fax, copier, phone numbers, and transfer of safety deposit boxes. Contact: Pat or Steve at (406) 752-6500.

OFFICE SPACE / SHARE MISSOULA: Professional office for lease in historic building in downtown area. Share use of reception area; two conference rooms; copy and fax machines; library; secretarial space; basement storage; locker room with shower; and private yard. Call Mark Connell, Connell Law Firm at (406) 327-1517.

CONSULTANTS & EXPERTS BANKING EXPERT: 34 years banking experience. Expert banking services including documentation review, workout negotiation assistance, settlement assistance, credit restructure, expert witness, preparation and/or evaluation of borrowers' and lenders' positions. Expert testimony provided for depositions and trials. Attorney references provided upon request. Michael F. Richards, Bozeman MT (406) 5818797; mike@mrichardsconsulting.com. COMPUTER FORENSICS, DATA RECOVERY, E-DISCOVERY: Retrieval and examination of computer and electronically stored evidence by an internationally recognized computer forensics practitioner. Certified by the International Association of Computer Investigative Specialists (IACIS) as a Certified Forensic Computer Examiner. More than 15 years of experience. Qualified as an expert in Montana and United States District Courts. Practice limited to civil and administrative matters. Preliminary review, general advice, and technical questions are complimentary. Jimmy Weg, CFCE, Weg Computer Forensics LLC, 512 S. Roberts, Helena MT 59601; (406) 4490565 (evenings); jimmyweg@yahoo .com; www.wegcomputerforensics.com

DECEMBER 2011 / JANUARY 2012

FORENSIC ENGINEERING: Registered professional engineer with over 20 years experience specializing in construction dispute resolution, structural and road distress determination, ground settlement/groundwater, construction materials, and slope stability issues. Exceptional writing and oral skills. Contact Michael A. Dworsky, PE, MBA; Missoula, Mont.; (406) 5433100 x3 or (406) 544-3435. References available. Web site: www.orioneng.net FORENSIC DOCUMENT EXAMINER: Trained by the U.S. Secret Service and U.S. Postal Inspection Crime Lab. Retired from the Eugene, Ore., P.D. Qualified in state and federal courts. Certified by the American Board of forensic Document Examiners. Fullservice laboratory for handwriting, ink and paper comparisons. Contact Jim Green, Eugene, Ore.; (888) 485-0832. Web site at www.documentexaminer.info. BAD FAITH EXPERT WITNESS: David B. Huss, JD, CPCU & ARM. 30 years insurance claims and law experience. Former insurance adjuster and defense counsel. (425) 776-7386.

INVESTIGATORS INVESTIGATIONS & IMMIGRATION CONSULTING: 37 years investigative experience with U.S. Immigration Service, INTERPOL, and as private investigator. President of the MT PI Association. Criminal, fraud, background, loss prevention, domestic, workers’ compensation, discrimination and sexual harassment, asset location, real estate, surveillance, record searches, immigration consulting. Donald M. Whitney, Orion International Corp., PO Box 9658, Helena MT 59604. (406) 458-8796 / 7. INVESTIGATIONS, SURVEILLANCE & LOCATES: Professional and affordable, private investigations led by 29-year Great Falls Police Captain Bryan Lockerby. FBI National Academy graduate. Surveillance, statements, and more. Database for locating subjects. (No criminal defense work.) Cover entire state. Lighthouse Investigations LLC, PO Box 3443, Great Falls MT 59403; (406) 899-8782; www.lighthouseinvestigations.net.

EVICTIONS MEDIATION WILLIAM LEAPHART: 22 years of general private practice with extensive appellate experience; retired after 16 years on Montana Supreme Court; certificate of Mediation Training from Strauss Institute for Dispute Resolution. Available for appellate or trial mediation, or arbitration. William Leaphart, 1772 University, Helena MT 59601; 438-6219; wwleaphart@gmail.com.

EVICTIONS LAWYER: We do hundreds of evictions statewide. Send your landlord clients to us. We’ll respect your “ownership” of their other business. Call for price list. Hess-Homeier Law Firm, (406) 549-9611, thesshomeier@ msn.com. See website at www.montanaevictions.com.

FAMILY LAW MEDIATION: Experienced mediator will help your clients reach agreement on difficult issues at reasonable rates. Compassionate and focused on the best interests of the child in parenting arrangements, while respecting parents’ desire to do their best in a tough situation. Decades of experience in asset allocation, leading to equitable and creative solutions in property settlements. mdenevi@bresnan.net; (406) 541-0416.

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THE MONTANA

awyer

State Bar of Montana P.O. Box 577 Helena MT 59624

PRESORTED STANDARD US POSTAGE PAID PERMIT 1 BILLINGS MT