Montana Lawyer April/May 2024

APRIL/MAY 2024 VOL. 49 | ISS. 2

Hon. Anthony Johnstone Investiture

ALSO INSIDE THE STATE OF AFFAIRS OF THE CORPORATE TRANSPARENCY ACT REPRESENTING AN AGENT UNDER A FINANCIAL POWER OF ATTORNEY

APRIL/MAY 2024 VOL. 49 ISS. 2 FEATURE ARTICLES

The Montana Lawyer is published 6 times a year by the State Bar of Montana, 33 S. Last Chance Gulch, Suite 1B, P.O. Box 577, Helena, MT 59624 as its official publication for all members. email : montanalawyer@montanabar.org Montana Lawyer Subscriptions are a benefit of State Bar membership. Subscriptions for nonmembers are available for $50 per year. Ad rates and subscription information are available at www.montanabar.org/page/ MTLawyer. Statements and expressions of opinion appearing in the Montana Lawyer 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. Publisher | John Mudd Editor | Regina Mercado

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STATE BAR OFFICERS President J. Stuart Segrest, Helena President-Elect

JOHNSTONE INVESTITURE Hon. Anthony Johnstone’s swearing in ceremony on April 26th following the 9th Circuit’s Oral Argument ( Photo provided by Tommy Martino and the University of Montana)

Antoinette “Toni” Tease, Billings Secretary-Treasurer (Acting) Erica R. Grinde, Missoula Immediate Past President David Steele, Missoula Chair of the Board Antoinette “Toni” Tease, Billings BOARD OF TRUSTEES Area A Randy Snyder, Bigfork Area B Erica Grinde, Missoula Beth Hayes, Missoula Natasha Jones, Missoula Area C Saidee Johnston, Butte Area D Anthony Gallagher, Great Falls Claire Lettow, Great Falls Area E Rich Batterman, Baker Area F

National Native American Law Students Association Moot Court Competition 14 ALSO IN THIS ISSUE

The State of Affairs of the Corporate Transparency Act

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Aislinn Brown, Helena Anna Kecskes, Helena Lindsey Simon, Helena Area G Sherine Blackford, Bozeman Matthew Haus, Bozeman Area H Shane P. Coleman, Billings Eli Patten, Billings Michelle Sulivan, Billings ABA DELEGATES Position Vacant, ABA Delegate ( Young Lawyers’ Division ) Matt Thiel, Missoula (Statewide Delegate) Tucker Gannett, Billings (State Bar Delegate)

4 PRESIDENT’S MESSAGE 6 MEMBER NEWS 9 LAWYER WELL-BEING 12 POWER OF ATTORNEY 17 FEDERAL COURT

20 PRACTICING WELL 22 HIGH SCHOOL MOCK TRIAL 23 NEXGEN BAR EXAM 25 TECH TIPS 30 JOBS/CLASSIFIED

PRESIDENT’S MESSAGE A.I. and the Montana Lawyer

Recently I had the chance to listen to two different presenters on the use of generative A.I. by lawyers (also referred to as large language models, or LLMs). The first presenter, who is working with the University of Hawaii on innova tion and technological issues, suggested what I would call a cautious approach. A lawyer should be aware of the chang ing landscape surrounding A.I. and its potential for use in legal practice, but should be an educated consumer. A lawyer, or law firm, should test drive A.I. products before commitment, pay ing particular attention to the underly ing source of data and what guardrails are in place to prevent, or lessen the chance of, “hallucinations” (where an A.I. program makes up cases or legal principles in its attempt to answer the question or prompt). Whether or how much a lawyer should be using genera tive A.I. is unclear at this point. The second presenter works for a legal research and technology com pany. He suggested that lawyers should already be using A.I. tools to generate work product, that this technology is only going to get better over time, and that clients will, sooner than later, expect lawyers to use generative A.I. to save time and reduce costs. As to the “hallucination” issue, this presenter suggested that while these issues may still occur at times, the filing lawyer just needs to check the work of the A.I. program, just as one would the work of an associate or paralegal. So, what should a lawyer or law firm do? As this technology seems too new to have official “best practices,” I turned to generative A.I. for ideas. I used Microsoft Copilot (which I understand is based on GPT-4). Here is its take on best practices for a Montana lawyer, with an expected focus on double checking the law and ethical require ments (interestingly the font used by Copilot was “Roboto,” which I have

never heard of but seems perfect for A.I. use): Generative AI can be a powerful tool for a small law firm, offering several benefits. Here are some best practices for its use: 1. Automated Document Drafting: Generative AI can help auto mate the drafting of routine legal docu ments, saving time and reducing errors. However, it’s crucial to review these documents for accuracy and compli ance with local Montana laws. 2. Legal Research: AI can assist in legal research by quickly scanning through vast amounts of legal texts and case law to find relevant information. Ensure the AI is trained on up-to-date and jurisdiction-specific databases. 3. Client Communication: AI can handle initial client inquiries, schedule appointments, and provide updates on cases. Always ensure that sensitive client communication is handled by hu man staff to maintain a personal touch and confidentiality. 4. Data Security: Given the sensi tive nature of legal work, robust data security measures are essential. Use AI solutions that prioritize data encryption and adhere to privacy regulations. 5. Continual Learning and Adaptation: Law is a dynamic field. Ensure your AI solution can learn and adapt to new laws, regulations, and case law precedents. 6. Ethical Considerations: Always consider the ethical implications of us ing AI in legal practice. Transparency with clients about the use of AI is key, and AI should not replace the critical thinking and judgement of a human lawyer.

7. Regulatory Compliance: Ensure your use of AI complies with all relevant professional and regulatory guidelines, including those set by the Montana State Bar. Remember, while AI can augment legal practice, it doesn’t replace the need for skilled human lawyers. The goal should be a harmonious blend of human expertise and AI efficiency. Generals. He served as Chief of the Civil Services Bureau, which represents the State of Montana in complex constitutional litigation and other cases of state-wide importance in both state and federal court. He is currently serving as the President of the State Bar of Montana. Stuart Segrest is a senior attor ney at Christensen & Prezeau, PLLP where he handles a wide range of litigation and appellate matters. Before joining the firm, he worked for the Montana Attorney General’s Office, where his career spanned the terms of four different Attorney

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MEMBER NEWS

GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer wel

CAREER MOVES Kassy J. Buss joins as Partner at Bjornson Jones Mungas PLLC Bjornson Jones Mungas PLLC

it to montanalawyer@mon tanabar.org. Please direct any questions to the same address. We will include firm name, location, the change that is being announced, attorney’s name, law school, practice areas, and a high-resolution photo. compliance with licensure requirements, or establish a strong defense against unwarranted disciplinary action. He also assists with a broad array of other matters including general litigation, estate plan ning, business law, labor and employ ment law, real estate law, and contract law. With branches in Helena and Bozeman, Silverman Law Office has pro vided legal services to more than 7,000 Montanans since it was founded in 2012 by attorney Joel Silverman. For more in formation, contact Silverman Law Office at 406-449-4829 or visit www.mttaxlaw. com. Western Roots Law is Pleased to announce the ad

comes news from members including announcements of new positions, advance ments, honors, appointments and publications. There is no charge for Member News submissions. If you have news you would like to submit to the Member News section, you can email

(“BJM”) is proud to announce that Kassy J. Buss is its newest part ner. Ms. Buss has worked at BJM in various capacities since 2008, including as a legal assis

a 5th generation Montanan, has been an associate with the firm since graduating from the Alexander Blewett III School of Law in 2018 after interning at the firm for two years prior to graduating. She has developed a robust civil litigation practice in a wide variety of practice areas, including insurance litigation, personal injury, construction law, real estate law, natural resource and energy law, water law, and administrative law. Alyssa is a member of the American Bar Association, State Bar of Montana, Western Montana Bar Association, and Montana Trial Lawyers Association. She is actively involved in the Missoula community, including serving as chair of a Missoula Chamber of Commerce Business Networking Group. Associate Attorney Dylan Gallagher joins Silverman Law Office Dylan Gallagher has joined Silverman

tant, paralegal, and associate attorney. Ms. Buss is known within the firm for being kind, a great friend and co-work er, and always willing to assist on any project. Ms. Buss is known to her clients as being conscientious, hard-working, dedicated, diligent, and intelligent. Ms. Buss received her undergraduate degree from the University of Montana in 2012 and her juris doctorate from the University of Colorado School of Law in 2015. In addition to focusing on general business commercial representation, Ms. Buss also represents clients in complex lending and real estate transactions. A substantial portion of Ms. Buss’s practice is concentrated on low-income housing tax credit apartment projects and mul tifamily housing finance matters. She is often the lead attorney for BJM with various nonprofit and for-profit project owners and developers, lenders, housing authorities, consultants, and other proj ect participants. In 2023, Buss received the GFDA Ally Award from Great Falls Development Alliance in connection with her activities supporting the devel opment of affordable housing projects in the Great Falls community. In her free time, Buss enjoys camping, hiking, and crafting with her family. kassy@bjorn sonlaw.com Milodragovich, Dale &

dition of Kirsa Shelkey to the firm Kirsa graduated from the University of Montana Alexander Blewett III School of Law with certificates in Federal Indian

Law Office as an as sociate attorney who specializes in helping anyone who practic es with a professional license in Montana. Born and raised in Helena, Gallagher obtained his under graduate and legal education from the

Law, Environmental Law, and Natural Resources Conflict Resolution. After law school, Kirsa clerked for the Honorable Justice Mike McGrath, Chief Justice of the Montana Supreme Court. Kirsa went on to work as a Water Master with the Montana Water Court and then worked with Trout Unlimited as a Staff Attorney and Instream Flow Specialist. Kirsa possesses a nuanced under standing of water law and its implica tions for agriculture, development, conservation, and tribal interests. This unique expertise allows her to effectively advocate for clients across a spectrum of legal arenas, from federal courtrooms to Montana’s own courtrooms, and in the water adjudication processes. You can reach Kirsa directly at (406)

University of Montana before clerk ing for the First Judicial District Court. He came to Silverman Law Office from the Montana Department of Labor and Industry, where he gained extensive expe rience working on professional licensing matters and navigating the regulatory framework that governs the practice of licensed professionals. He now helps nurses, therapists, physicians, engineers, cosmetologists, and other licensed professionals find ways to improve their practice, maintain

Steinbrenner, PC announces newest shareholder Milodragovich, Dale & Steinbrenner, PC is pleased to welcome Alyssa L. Campbell as the firm’s newest shareholder. Alyssa,

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Browning Kaleczyc Berry & Hoven is Proud to Announce the Election of Brian P. Thompson to Shareholder As a government affairs attorney, much of Brian’s practice is focused on government relations and lobbying on behalf of compa nies and associations to help facilitate their growth, and to help the government and busi nesses align their needs. Brian’s trusts, estates, and probate prac tice is focused on asset management, estate planning, wills and trusts, and estate administration. He helps families and indi viduals create estate plans for the tax-advantaged transfer of real property, cash, securities, and other assets in accordance with a client’s wishes, often through non-probate mechanisms (such as trusts and LLC’s). As a litigator, Brian frequently represents companies, munici palities, and individuals in a wide range of business, real estate, and personal injury matters. Blue Cross and Blue Shield of Montana is pleased to an

599-2087 or Shelkey@WestRootsLaw.com. We are excited to have Kirsa on our team and assisting clients! Ugrin Alexander Zadick, P.C. of Great Falls is

delighted to announce Grant Kelly has joined the firm and will be staffing a part-time satellite office in Fort Benton. Grant received his bachelor’s and mas ter’s degrees in philosophy from the Catholic University of America before attending the University of Montana, where he earned his J.D. in 2019. Grant began his career at Church, Harris, Johnson & Williams in Great Falls before opening a solo practice serving Fort Benton

and surrounding communities. Grant has a wide range of civil experience. His practice at Ugrin will focus on estate planning and administration, estate litigation, trust litigation, business transac tions, and real property transactions. Hughes opens firm in Missoula Jill Hughes an nounces her formation of a new Missoula-based firm, JLaw, PLLC

nounce that Ramon Mercado has joined BCBSMT’s legal division as Assistant General Counsel. Ramon most recently served as Legal Counsel, Compliance and Privacy Officer for Mountain-Pacific Quality Health, a quality innovation network-quality improvement organi

focused on family law, guardianships and estate administration. Jill has practiced law in Missoula County since 2015 in contested and uncontested areas of family law, estate planning, guardianships, conservatorships, and probate. Before forming JLaw, Jill was an of-counsel attorney with Matrium Law Group until 2023. Jill graduated with honors from the University of Montana with a B.A. in

zation, where he handled various regulatory and transactional matters. Prior to that, Ramon served as a transactional attorney for a biotechnology company that develops and manufactures regenerative medicine products and medical devices domestically and internationally. Ramon graduated from Pennsylvania State University with a Bachelor of Arts and from the University of Montana School of Law. He is located in BCBSMT’s Helena office. Morrison, Sherwood, Wilson & Deola, PLLP

English in 1997 and graduated from the Alexander Blewett III School of Law with a J.D. in 2015. Jill was an editor of the Public Land and Resources Law Review and was honored with a CALI Excellence Award. Jill is from Missoula and attended Hellgate High School. Go Knights! Jill can be reached at jill@jlawmt.com or 406-370-9252 Berg Lilly, PC is pleased to announce that Carrie Wasserburger joined the firm as a partner in January, 2024. Carrie graduated from Creighton

is pleased to announce that Anne E. Sherwood has become a partner in the firm. Anne has been an associate at the firm for the past six years. Anne’s practice focuses on civil litigation and trial work predominantly for plaintiffs, including employment, consumer protection, land use, and personal injury. Her transaction al practice aims to help individual Montanans and businesses in real estate matters, financial

University in 2004 and received her law degree from Creighton Law School in 2010. Carrie moved to Montana and began practic ing law in 2010. Prior to joining Berg Lilly, Carrie practiced as a solo practitioner from 2015-2023 and as an associate at a small private firm in Bozeman from 2010-2015. Carrie has served clients in a variety of areas

contracts, and business structuring. Anne obtained her J.D. from the Alexander Blewett III School of Law, and her undergraduate and Masters degrees from the University of Montana. She is pleased to be serving the legal needs of her hometown of Helena and follow in the footsteps of her father, Rick, a longtime partner in the firm. When she’s not working, Anne can be found spending quality time outside with her husband and their two young children.

including family law, civil litigation, guardianships, dependency and neglect, landlord-tenant disputes, criminal law, business and real estate transactions, and estate planning. Carrie’s practice at the firm will include family law, guardian ships, civil litigation, real estate and business transactions, and simple estate planning. Carrie also serves on the board of directors for the Gallatin County Bar Association and Monforton School District. Carrie enjoys the outdoors and spending time with her husband, two children and Golden Retriever.

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LAWYER WELL-BEING & ASSISTANCE

Substance Use Disorder as an Occupational Hazard LESLIE HAGIN

I am an attorney and an alcoholic/ad dict. It took me decades to admit the last two “As” in that description, or even consider that my drinking and drug “habits” might have had any sort of adverse consequences in my life or the lives of others. I am now in recovery and have been for some time. But my ignorance, fear, ego, and denial almost cost me everything I had ever worked for and held dear, including my career, personal relationships, and my own life. I am writing this article in the hope that my experience and what I have learned may help someone else. driven for as long as I can remember, the progressive and chronic nature of the disease of alcoholism (and other substance misuse) took me down a very slippery slope. My use went from being (what I could pass off as) a professional networking and social lubricant, with the occasional binge and hangover, to my go-to tool for “managing” depression, anxiety, stress, and any other emotions, the effects of legal wins and losses, and finally everything I encountered and tried to control in my life. Then (sud denly, it seemed) I became a daily and constant user, not caring whether I lost my career, law license, and everybody and everything else in my life—as long as I could escape from myself and into my substances. In short, when I tried to control my drinking and substance use, I could not enjoy it and when I enjoyed my drinking and substance use, I could not control it. MY STORY After being a go-getter and career

I had no shut-off valve or stop button, no matter my will power and problem solving skills. And I did not want to stop, even after waking up very sick in an emergency room with no idea how I got there. After decades of living like this, I finally had to admit that my way was not working in any aspect of my life or ca reer. I created an increasingly miserable series of humiliating and painful experi ences. And I finally hit a point of futility. I was hopeless and living, literally, only to drink and use. I was in enough pain and so out of ideas to help myself that I paused digging my own demise just long enough to make an initial ask for help, unsure that help might even exist for me. From that first inquiry, I began a journey of learning and healing. I learned that alcoholism and substance use disorder (unless treated) are without exception equal opportunity progressive, chronic, and fatal diseases affecting every sort of person and profession. I learned

the challenges I faced were neither unique nor unconquerable. More specifically, I learned that alco holism and substance use disorder are diseases that are related to a number of risk factors such as depression, anxiety, and stress, and the diseases and the risk factors are especially prevalent among lawyers. But most importantly, I learned there is hope and a way out of the addic tion abyss. THE BROADER PROBLEM One of the first comprehensive studies of substance use disorder and related risk factors in the legal pro fession was published in 2016 in the Journal of Addiction Medicine, entitled “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” (“2016 Krill Study”).1 It surveyed 12,825 licensed attorneys and found that 20.6 percent of those self-reported hazardous, harmful, and potential alcohol-dependent drink ing (also called problematic drinking).

MORE WELL-BEING, PAGE 26

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Described as a beloved professor, brilliant scholar, and fun and funny col league, Anthony Johnstone was sworn in Friday at the University of Montana as judge for the U.S. Court of Appeals for the Ninth Circuit. Chief Judge Emeritus of the Ninth Circuit Sidney Thomas, of Billings, administered the oath of office to Johnstone, a law school faculty member, former solicitor general for Montana, and former clerk for Thomas. JOHNSTONE INVESTITURE KEILA SZPALLER

Johnstone’s swearing in ceremony (Photo provided by Tommy Martino and the University of Montana)

“You will be a terrific member of our court,” Thomas said. The ceremony took place in the Jane and George Dennison Theatre at UM, and members of the legal community from Montana and across the country attended and gave Johnstone a standing ovation and offered cheers for Thomas. Johnstone’s wife, Autumn DeVos Johnstone, and their three children participated in the ceremony, and the Bible he used to take his oath belonged to his grandfather’s grandfather. Seventeen of Johnstone’s colleagues on the Ninth Circuit, the largest of the federal circuit courts, also took the stage for the event. Chief Judge Mary Murguia said Montana is known for its natural beauty, but she saw beauty in the theater, too. The theater seats 1,100, and it was more than half filled for the event. Murguia said it isn’t often that so many state and federal officials gather together in one place, especially for a positive event, and she found the welcome from the audience heartwarming. “It also, in my view, reflects your support of our democracy,”

Murguia said. To laughter, she said she especially appreciated that the former chief judge on the Ninth Circuit received even more applause than former Gov. Steve Bullock or retiring Montana Supreme Court Chief Justice Mike McGrath. Both McGrath and Bullock offered remarks at the ceremony. In an introduction, U.S. District Court Chief Judge Brian Morris of Montana said McGrath and lawyer Jim Goetz of Bozeman were especially significant mentors to Johnstone. McGrath said he heard Johnstone used to sit around and read the encyclopedia as a young man, and he said he thinks it’s prob ably true. He hired Johnstone early on in his career because another colleague in the legal community, now federal Chief Judge Brian Morris of Great Falls, said it was a good idea, he said. “I hired him based on Brian’s recommendation, and much to (Johnstone’s) annoyance, I never bothered to look at his

Hon. Anthony Johnstone (bottom left in photo) of the University of Montana school of law is sworn in as judge to the U.S. Court of Appeals for the Ninth Circuit. (Provided by Tommy Martino and the University of Montana)

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transcript,” McGrath said. In his own remarks, or “rebuttal,” Johnstone joked that McGrath had stolen his punchline; he had planned to rib the chief for still not having read his resume. Johnstone received his Juris Doctor from the University of Chicago Law School in 1999 after earning his Bachelor of Arts from Yale University. His friend, the Honorable Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit, said “Tony” majored in “the most letters.” Rao, who also attended Yale and the University of Chicago Law School, said he studied ethics, politics, economics, geol ogy and geophysics, and she believes his broad learning brings him wisdom that’s helpful to judges, who must consider so many different experiences in their work. But Rao noted Johnstone is also a good sport with a sense of humor. When he was named “one of the 50 most beautiful” people by his college’s tabloid magazine, she said, he gamely posed in a kilt for the pictures. Bagpipers with the Celtic Dragon Pipe Band opened the ceremony, and Zach Rides at the Door, who is Blackfeet and with the Kyiyo Singers, sang an honor song. Dean Elaine Gagliardi of the Alexander III School of Law at UM shared quotes from students and colleagues about Johnstone, including a comment from Professor Jonathon Byington. “His mind is brilliant, his prose powerful, and his judgement sound,” Gagliardi said, quoting the professor. Nominated by U.S. President Joe Biden and supported by U.S. Sen. Jon Tester, Johnstone is the fourth professor or alum nus of Montana’s law school to sit on the Ninth Circuit Court of Appeals. Bullock, former attorney general who worked with Johnstone on a campaign finance fight that went all the way to the U.S. Supreme Court and back to Montana, said he has relied on Johnstone’s counsel. Bullock said Johnstone sought his advice too when Johnstone was hoping to make his way back to Montana and into public service after working at Cravath, Swaine and Moore in New York.

He said Johnstone once gave him a copy of the book “The War of the Copper Kings,” about the control Montana’s early copper barons held and “the corrupting influence of money.” At the ceremony, Bullock said it was time for it to sit on Johnstone’s bookshelf again, and he returned it. In his own remarks, Johnstone thanked his friends and fam ily, former and current colleagues, and the community. He said he will hold as his motto something U.S. District Court Judge Donald Molloy of Missoula said that stuck with him.

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. Daily Montanan is part of States Newsroom, the nation’s largest state-focused nonprofit news organization. but he had a different idea, one Johnstone shared Friday. “The rule of law is really what we do together,” Johnstone said. At a federal courtroom dedication to Molloy roughly a de cade ago, the judge said people think of the rule of law as a rule, Johnstone putting on his robe (Photo provided by Tommy Mart ino and the University of Montana)

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Representing an Agent Under a Financial Power of Attorney MOLLY CONSIDINE POWER OF ATTORNEY

There will come a time for most Montanans when they can no longer handle their finances, and they will need to rely on another to pay their bills and manage their affairs. We hope most Montanans will have the foresight to execute a financial power of attorney (“FPOA”) to cover this eventuality. An FPOA nominates an agent to manage the principal’s financial affairs. The agent is usually a family member who is well intentioned but uninformed about the fiduciary role he or she is being asked to assume. The purpose of this article is to provide a broad overview of Montana’s FPOA laws, as well as issue-spot some unexpected traps for the unwary. I. Show Me the FPOA, Please. In order to advise the agent appro priately, we need to start by reviewing the terms of the FPOA. The FPOA will describe the scope of the agent’s author ity. The following list is intended to be a guideline of what to look for in an FPOA: (1) Whether the agent’s authority is effective immediately or upon a triggering event (i.e., a springing FPOA); (2) Whether the proposed agent is the same person nominated to serve in the FPOA; (3) Whether the proposed agent is expected to serve alone or with another, and if with another, whether the co-agent wishes to serve and if this is a joint repre sentation requiring written consent in an engagement letter; (4) Whether the agent is entitled to compensation, reimbursement for expenses, or both; and (5) The specific powers the principal vested in the agent. Once we get answers to these ques tions, we can move on to a more substan tive discussion with the agent. II. Why Is the Agent Stepping in to Manage the Principal’s Assets? We need to know why the agent believes he or she should begin managing the principal’s assets. There are many rea sons why an agent might step in to serve, such as the principal’s incapacitation, preventing financial exploitation of the principal, or the principal’s loss of execu tive functioning. The “why” is critical to

understanding whether (1) the triggering provisions have been satisfied in a spring ing FPOA; and/or (2) the agent has the authority to take the necessary actions on behalf of the principal. In the most extreme cases, the “why” may reveal an improper purpose on the part of the agent. For example, an agent may wish to use the principal’s assets for agent’s benefit or the agent may disagree with how the principal is using his or her funds. In the latter example, we may need to advise the agent that the principal can make “bad” decisions regarding the prin cipal’s assets so long as the principal has capacity, understands the risks, and it’s not illegal or a transaction(s) that harm the principal. In these situations, regard less of what the FPOA says, the agent’s exercise of authority is unnecessary and unwarranted. III. The Agent’s Authority Under the FPOA . Assuming the agent is named in the document and has a proper basis for serv ing, we need to advise the agent on where the guardrails are located. The FPOA will identify what the agent can and cannot do on behalf of the principal. Montana provides a statutory FPOA at § 72-31-353, MCA, that is much like a check-the-box form. Any selections made by the princi pal on that form correspond to a specific statutory provision detailing the agent’s authority with respect to that power. § 72 31-339 – 72-31-351, MCA. For example, if the FPOA authorizes the agent to have general authority over real property, then we should look to § 72-31-339, MCA, because it enumerates all of the agent’s authority with respect to real property under Montana law. A principal must act expressly and deliberately in granting an agent certain powers under Montana law in order for the agent’s authority to be effective. § 72-31-352, MCA, provides that gift ing must be specifically identified in the FPOA to permit an agent to give away the principal’s property. Even if the FPOA includes a gifting power, and unless the FPOA says otherwise, § 72-31-352, MCA, limits the type of gifting the agent can do on behalf of the principal. The agent may

gift the annual exclusion amount set by the Internal Revenue Service or consent to gift-splitting with the principal’s spouse not to exceed the aggregate annual gift tax exclusions for both spouses. Unless the FPOA says otherwise, and assuming the gift was in 2024, a gifting provision in an FPOA would allow an agent to gift $18,000 to an individual or split the gift with the principal’s spouse and gift $36,000 to an individual. Notwithstanding these provisions, subparagraph (3) of § 72-31-352, MCA, puts further restrictions on the agent when making the gift. Specifically, the agent must actually know that the gift is consistent with the principal’s objectives, and if the agent does not have that knowl edge, then the agent needs to demonstrate that the gift is consistent with the princi pal’s best interests based on “all relevant factors.” The statute then provides a non-exhaustive list of relevant factors to consider, as more fully described below: (1) The value and nature of the prin cipal’s property; (2) The principal’s foreseeable obli gations and need for maintenance; (3) Minimization of taxes, including income, estate, inheritance, generation skipping transfer, and gift taxes; (4) Eligibility for a benefit, a pro gram, or assistance under a statute or regulation; and (5) The principal’s personal history of making or joining in making gifts. The agent should include some docu mentation, such as a note or explanation, showing the relevant factors the agent considered at the time the gift was made. If anyone challenged the gift, the agent could rely on the notes to support the agent’s decision to make the gift. If an agent is concerned about whether the FPOA grants him or her authority for a specific action, or wishes to have a gift approved, § 72-31-321, MCA, authorizes an agent to petition a court to construe an FPOA or review the agent’s conduct and grant appropriate relief. Obtaining court approval may also serve as a belt-and-sus penders approach to limiting the agent’s liability in the event the gift or transaction is later challenged by either the principal

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or other interested third parties, such as a guardian, conservator, spouse, parent, or descendant. While not stated in the stat ute, it may be useful to have an attorney represent the principal or the principal’s interests in the transaction. The belt-and-suspenders approach may appear overkill. However, the Montana slayer statute was amended in 2019 to include new provisions to disinherit individuals who financially exploit a vulnerable adult. § 72-2-813, MCA. Financial exploitation is defined as follows: The act of purposefully or know ingly standing in a position of trust and confidence with a vulnerable adult and obtaining, using, or attempting to obtain or use at least $1,000, whether in one or more acts, of a vulnerable person’s money, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the money, assets, or prop erty or to benefit someone other than the vulnerable adult. § 72-2-813(1)(c), MCA, goes on to provide a non-exhaustive list of examples of financial exploitation that includes “acting or failing to act, including the use of a power of attorney, in order to… convert money, assets, or property of a vulnerable adult to deprive the vulner able adult of the ownership, use, benefit, or possession of the money, assets, or property.” § 72-2-813(1)(c)(i)(B), MCA. A vulnerable adult is defined as, among other things, a person who is 60 years or older; functionally, mentally, or physically unable to provide self-care; or incapaci tated. § 72-2-813(1)(f), MCA. This broad language creates a risk for the agent in his or her individual capacity if the agent is also an heir or devisee under the princi pal’s estate plan. The other heirs or devi sees may seek to use these provisions to disinherit the agent for actions he or she took using the FPOA. Thus, it seems pru dent to advise the agent that this statute exists, and to the extent the agent desires to minimize some of this risk during the principal’s lifetime, to seek court approval when it’s appropriate. In addition to gifting, there are other actions that require a specific grant of authority in the FPOA. Unless the FPOA expressly provides otherwise, an agent

cannot do any of the following: (1) Create, amend, revoke, or termi nate a revocable living trust; (2) Create or change rights or survivorship; (3) Create or change a beneficiary designation; (4) Waive the principal’s right to be a beneficiary of a joint or survivor annu ity; including a survivor benefit under a retirement plan; or (5) Disclaim property. § 72-31-336, MCA. § 72-31-336(2), MCA, provides that the agent cannot use the power to create a benefit for the agent or a person the agent owes a “legal obliga tion of support” unless the FPOA pro vides otherwise. In other words, the agent should not use these powers to benefit himself or herself, or the individuals the agent is obligated to support, unless the principal authorized such a self-interested transaction in the FPOA. If the agent wishes to exercise one of these enhanced powers, it is important that we analyze and advise the agent on any impact the changes may have on the principal’s estate planning and taxes. Unless the FPOA provides otherwise, § 72-31-319(2)(f), MCA, imposes a duty upon an agent under a FPOA to attempt to preserve the principal’s estate plan, to the extent it’s known to the agent and is in the principal’s best interests. This applies even if the principal has not executed a will, trust, or other testamen tary instrument! The principal’s failure to make an estate plan still results in an es tate plan under Montana’s intestacy laws. As a result, we should advise the agent that the intestacy laws count as an estate plan that requires preservation. The preservation of the estate plan includes, but is not limited to, preserv ing the value and extent of the principal’s property and the minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes. The agent must also evaluate the principal’s foreseeable obligations and needs for maintenance. The agent should maintain sufficient records to justify any actions taken by the agent that may trig ger a change in an estate plan. The agent should also be leery of using their author ity to make changes that benefit the agent personally, either directly or indirectly,

because (1) they risk triggering a claim under the revised slayer statute; and (2) because it may be a breach of the agent’s other duties to the principal, as more fully explained below. However, if the agent can prove that he or she acted in good faith, then the agent may avoid liability to the beneficiary for failing to preserve the estate plan. § 72-31-319(3), MCA. IV. Agent’s Fiduciary Obligations to the Principal. § 72-31-319(1)(a)-(c), MCA, provides three core duties that an agent owes a principal. The agent can only act within the scope of the authority granted under the FPOA. The agent must either act according to the principal’s reasonable expectations (if the agent has knowledge of those expectations), but if not, then in the principal’s best interests. The agent must act in good faith. These three duties cannot be waived under the terms of an FPOA. § 72-31-319(1)(a)-(c), MCA, goes on to specify other duties that the agent may assume unless the FPOA provides other wise. These duties include acting loyally for the principal’s benefit; avoiding con flicts of interest that impair the agent’s ability to act impartially for the benefit of the principal; duty to keep a record of receipts, disbursements, and transactions on behalf of the principal; acting with care, competence, and diligence; cooper ating with the agent appointed to make health care decisions on the principal; and attempting to preserve the principal’s estate plan. At its core, the purpose of these statutes is to ensure that the assets of the principal are used in the same or similar manner as the principal would have used them but for the principal’s incapacity or other triggering event. The agent’s role is to ensure the principal receives the ben efit of his or her assets, the assets are used to care for the principal, and the assets are managed responsibly. If the agent violates these duties, then the agent is liable to the principal or the principal’s successors in interest to restore the property to the value it would have been without the violation; and to reimburse the principal or the principal’s successors in interest for the attorney fees and costs paid on the agent’s behalf. § 72 31-322, MCA. The risk to the agent is in

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National Native American Law Students Association Moot Court Competition

BY: LILLIAN ALVERNAZ The bench was hot! The all-Indige nous final judge panel at the National Native American Law Students Association (NNALSA) Moot Court were relentless in their questioning of the two last standing teams in the competition. The Tribal Law and Federal Indian Law students from across the country were ready and provided the back and forth with the judges that is readily present in our country’s appellate system. These students demonstrated that they are ready to pick up the baton and be the legal warriors that tribes, firms, and government need as they move into the future. Thanks to the UM law students’

2007 UM JD alumna) was a prelimi nary judge through the Sweet 16 round. She said she “was impressed by the law students’ expertise on the substan tive law as well as their oral argument presentation skills. It was fun to be able to learn more about the issues from the students and to hear some of the innova tive arguments they made in response to the complicated case. Most of all, I was delighted to meet so many future Native lawyers who will no doubt be passionate advocates for Tribes across the nation.” Kristina Lucero (Coast Salish, Tseycum 1st Nations, 2009 UM JD aluma), another preliminary judge, stated that “the energy moot court brought to the law school and campus

efforts to bid on hosting, planning, and organizing the national moot court, this was the first time that the NNALSA Moot Court had been hosted in Montana. The moot court problem, Dakota Farm Bureau v. Northern Tribe, was written by UM Professors Kekek Stark (Turtle Mountain Ojibwe) and Michelle Bryan. The 51 teams from 26 schools submitted briefs on the problem and engaged in oral arguments dur ing the two-day competition. The oral arguments were presented before judge panels consisting of nearly 80 volunteer attorneys, judges, and professors from Indian Country, well-versed in Federal Indian Law and Tribal Law cases. Erin Shanley (Cheyenne River Sioux,

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revived my faith in the future of Indian law practitioners. Indian law is such a terribly racist and complicated subject, but to see the conviction and passion with which each student navigated their arguments made me proud - not only as an advo cate for Tribal sovereignty, but also as an Indigenous person who has been impacted by federal policies. Our future is bright, and we need more Indian law students!” The real stars, however, were the UM law students who organized the event. The two primary student leaders were Sapphire Carter (Chippewa Cree, 1L) and Monte Cole (3L). They were supported by Holly Old Crow (Crow, 3L), Raven Rattler (Eastern Band of Cherokee Indians, 2L), Ericka Camposan (Crow, 2L), and David Ricci (Turtle Mountain Band of Chippewa

Indians, 2L). Sapphire expressed that these leaders “felt an incredibly supportive atmosphere among the competitors, judges, and vol unteers throughout the competition, and that can be attributed to all the smiling and excited alumni and Montana law commu nity who came out in full force to help put on a successful moot court.” Raven stated that the moot court “was an exciting experience; and to know that so many law students across the country are heading into Native American law, in all of its different formats, is inspiring. Thank you to all the attorneys, judges, professors, and students who worked to make this NNALSA Moot Court one of the best!” Usually, the NNALSA Moot Court

concludes with an awards banquet where the winners are announced. Of course, our Montana students had to do things bigger and better. In addition to including an honoring ceremony in memory of Nicole “Nikki” Ducheneaux, the concluding event focused on making the competition “Indigenous” by organizing a round dance and offering a traditional meal. Everyone joined in the round dancing as singers and drummers filled the venue with song and culture. The final judges were given cultur al gifts of wool blankets to show apprecia tion. The winners were announced. Kansas University topped in the Best Oralist and Best Overall Advocates categories. Seattle University won the best brief.

CLE on Your Schedule Our selection of on-demand cle courses puts you in control of your annual requirements. https://montana.inreachce.com/

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FEDERAL COURT

Jackson Nomined to the Federal Court

$280/hr. First 4 hours of travel time free “Gregg is an excellent mediator. He is well prepared and he has the experience to give you an accurate analysis of your case. Like any good mediator, he does a good job of listening to the parties and making sure each side understands the strengths and weaknesses of their positions. I wholeheartedly recommend Gregg Smith as a mediator on any civil litigation matter.” —Steve Fitzpatrick, Montana State Senator and trial attorney “An effective mediator must be empathetic, experienced, and persistent. A mediator needs insight to identify a position both parties can live with, persuasive credibility, and determination to see the matter through. Gregg Smith embodies these strengths as a mediator. A seasoned litigator, he understands that although parties need to be heard and validated in their grievances as a prerequisite to resolution, trial is rarely their best alternative. And he is tireless to the point of doggedness in his commitment to achieving compromise. Gregg's dedication to finding clients a reasonable solution is compelling. I could not recommend him more highly.” —Quentin Rhoades, Missoula trial attorney Looking for someone with a proven track record? Looking for a mediator who’s tried some cases? Caught behind your Scheduling Order? I will work hard to accommodate short notice settlement conferences RESULTS MATTER!

On April 23rd, President Biden nomi nated Danna Jackson, Tribal Attorney for the Confederated Salish and Kootenai Tribes in Pablo, Montana to serve on the United States District Court for the District of Montana. If confirmed, Jackson will replace Judge Dana Christensen and will be the first American Indian to serve as a federal judge in Montana.

According to the White House, Jackson’s nomination, one of several nationwide, “continue(s) to fulfill the President’s promise to ensure that the nation’s courts reflect the diversity that is one of our greatest assets of our country - both in terms of personal and professional backgrounds.” Jackson previously served at the U.S. Department of the Interior as Senior Counselor to the Director of the Bureau of Land Management and then Senior Counselor to the Assistant Secretary for Water and Science from 2021 to 2023. Before that, Ms. Jackson served as Chief Legal Counsel at the Department of Natural Resources and Conservation in Helena, Montana, from 2016 to 2021 and as an Assistant U.S. Attorney and Tribal Liaison in the U.S. Attorney’s Office for the District of Montana from 2010 to 2016. Senator Jon Tester praised Jackson having “a proven track record of ap plying the law with fairness and integrity throughout her legal career.” Tester added, “…her extensive experience at every level of Montana’s legal system makes her well qualified to serve our state…” Senator Steve Daines, more guarded in his comments, took aim at the White House: “Unfortunately, President Biden failed to seriously consult with me prior to making this nomination,” but added “I look forward to reviewing Ms. Jackson’s background and record to evaluate if this nomination is the right fit for Montana.”

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The State of Affairs of the Corporate Transparency Act

JESSICA OSTERLOH

The Corporate Transparency Act (“CTA”) , enacted as part of the National Defense Authorization Act on January 1, 2021, was intended to expose what Congress described as “malign actors” who seek to conceal illicit financial activities by increasing corporate accountability. Specifically, the CTA allows the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) to require “report ing companies” (as defined in the CTA) to report all their individual beneficial owners. The term “benefi cial owner” is broadly defined in the CTA as referring to those individuals meeting either a specific owner ship test or a substantial control test, as those tests are further defined in the CTA. The birth of the CTA inspired states such as New York to enact their own similar State-level filing regime such as the New York LLC Transparency Act. Since the inception of the Act, the CTA has received a plethora of complaints and formal comments regarding its vague guidelines and complicated reporting, plus harsh penalties for inaccurate reporting. In November 2022, the National Small Business Association (“NSBA”) filed a suit in the U.S. District Court for the Northern District of Alabama versus the Secretary of the Treasury stat ing the CTA is unconstitutional. On March 1, 2024, Federal Judge Liles Burke ruled in favor of the NSBA. The recent success of the NSBA has flooded the legal headlines and may cause a domino effect of litiga tion. Following the unconstitutional verdict, the Small Business Association of Michigan (“SBAM”), an affili ate group of the NSBA, filed suit on March 26, 2024. There are four other affiliate groups that the NSBA lists on their website, and it will be interesting to see if any of those organizations follow suit. Here is a brief timeline of the CTA and corresponding events:

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