Montana Lawyer April/May 2025

APRIL/MAY 2025 VOL. 50 | ISS. 2

Clean Slate Clinic Gives Montanans a Fresh Start

Also Inside: News and Notes from the State Law Library What is Post-Truth Jury Decision-Making?

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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. Publisher | John Mudd Editor | Regina Mercado email : montanalawyer@montanabar.org Montana Lawyer Subscriptions are a benefit of State Bar membership. Subscriptions for non members are available for $50 per year. Ad rates and subscription information are avail able by emailing montanalawyer@montanabar. org. Statements and expressions of opinion appear ing in the Montana Lawyer are those of the advertisers or authors. Unless specifically stated, they are not the official position or view of the State Bar of Montana, its officers or trustees, and they do not necessarily represent the views of all members of the State Bar of Montana. Postmaster: Send address changes to mon tanalawyer@montanabar.org.

STATE BAR OFFICERS President Antoinette “Toni” Tease, Billings President-Elect Aislinn W. Brown, Helena Secretary-Treasurer Erica R. Grinde, Missoula Immediate Past President J. Stuart Segrest, Helena Chair of the Board Albert “Rich” Batterman, Baker BOARD OF TRUSTEES Area A Ryan G. Hennen, Whitefish Area B Beth Hayes, Missoula Dana L. Hupp, Missoula Natasha P. Jones, Missoula Area C Kaylan A. Minor, Dillon Area D Anthony Gallagher, Great Falls Claire Lettow, Great Falls Area E Albert “Rich” Batterman, Baker Area F

Clean Slate Clinic Gives Montanans a Fresh Start More than 60 Montanans got a fresh start this March through the Clean Slate Clinic, the state’s first expungement clinic. Organized by Montana Legal Services Association with volunteer attorneys and law students, the clinic helped participants clear old misdemeanor convictions and move forward with new opportunities. 10

News and Notes from the State Law Library

What is Post-Truth Jury Decision Making?

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MISCELLANY 4 PRESIDENT’S MESSAGE 6 MEMBER NEWS 8 STATE BAR NEWS 15 ETHICS OPINION 17 LEGISLATIVE NEWS

Craig D. Charlton, Helena Anna M. Kecskes, Helena Lindsey R. Simon, Helena Area G Sherine D. Blackford, Bozeman Matthew A. Haus, Bozeman Area H Shane P. Coleman, Billings Eli J. Patten, Billings Michelle Sullivan, Billings ABA DELEGATES Michael Klepperich, ABA Delegate ( Young Law yers’ Division ) Matt Thiel, Missoula (Statewide Delegate) Tucker Gannett, Billings (State Bar Delegate)

23 TECH TIPS 24 RISK MANAGEMENT 25 COURT NEWS 27 IN MEMORIAM 28 JOBS/CLASSIFIEDS

PRESIDENT’S MESSAGE Leading on Her Own Terms: Women, Leadership, and the Legal Profession

1. 2.

The rule of law is good for business.

“Does a Woman Have to Become a Man to Become President?” This was the title of my fifth grade social studies paper. Based on studies ana lyzing the character traits of successful leaders, my conclusion then was a resounding no. Years later, leadership research continues to support that con clusion. A recent article in the Harvard Business Review identifies eight qualities of effective leaders: authenticity, curiosity, analytical prowess, adapt ability, creativity, comfort with ambiguity, resil ience, and empathy. 1 As President of the State Bar of Montana dur ing a tumultuous legislative term, I have striven to embody these characteristics to the best of my ability. My approach has always been to seek un derstanding first and argue later. As one leadership principle states: “If someone strikes you as illogi cal, it’s likely you don’t understand what matters most to that person.” 2 In my experience, if you peel back the layers far enough, you will often find common ground—even in the most contentious debates. Take Montana, for example. Montanans are fiercely independent and want a say in their gov ernment. They believe in economic opportunity while also valuing the breathtaking natural beauty of our state. They are resourceful and innovative— traits reflected in the earliest inhabitants of our land and in the inventors I represent as a patent attorney today. These shared values form the foun dation upon which we can build agreements, even when perspectives on governance differ. In my January 6 letter to the Chair of the Senate Judiciary Committee, I highlighted three key prin ciples upon which I believed we could all agree:

The State Bar does (and should continue to) take diversity of viewpoints into account in its CLE programs. 3. Maintaining the separation of powers, as set forth in the U.S. and Montana Constitutions, is vital. The most contentious issues during this past legislative session stemmed not necessarily from opposing values but from differing views on how best to govern in alignment with those values. Nearly every Montanan agrees that judges should be fair and unbiased, and that lawyers should be able to represent their clients without govern ment interference. The question we faced repeat edly was whether these ideals were best protected by preserving an independent judiciary and a self-regulating legal profession. Our answer was, unequivocally, yes. Leadership in these moments required disci pline, patience, and a steady hand. Napoleon is famously quoted: “Never interrupt your enemy when they are making a mistake.” 3 That wisdom applies far beyond the battlefield. In leadership, it is often more effective to stay the course rather than react impulsively. Good leaders do not allow distractions or political noise to pull them away from their core mission. Instead, they remain focused, ensuring that when they do act, it is with intention and clarity. This leadership style aligns closely with the strengths that women bring to leadership roles. Historically, leadership has been defined in traditionally masculine terms—assertiveness,

Toni Tease is a registered patent attorney and a solo practitioner who special izes in intellectual property law. Her office is located in Billings, Montana, and her website is at www.tease law.com.

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emotional intelligence. 9 In this evolving landscape, leadership is no longer about fitting into a traditional mold. It is about bringing one’s whole self to the role, with authenticity and conviction. That is the kind of leadership I aspire to embody, and it is the kind of lead ership Montana—and the legal profession—needs. Endnotes 1 Knight, Rebecca, 8 Essential Qualities of Successful Leaders , Harvard Business Review (Dec. 13, 2023), accessed at https://hbr. org/2023/12/8-essential-qualities-of-successful-leaders. 2 Id. 3 Id. 4 Profile of the Legal Profession 2024 : Women in the Legal Profession , American Bar Association, accessed at https:// www.americanbar.org/news/profile-legal-profession/women/. 5 Id. 6 Id. 7 Women as Lawyers and Leaders, Harvard Law School Center on the Legal Profession (May/June 2015), accessed at https://clp.law.harvard.edu/knowledge hub/magazine/issues/women-as-lawyers-and-leaders/ women-as-lawyers-and-leaders/. 8 Chamorro-Premuzic, Tomas, As Long as We Associate Leadership With Masculinity, Women Will Be Overlooked , Harvard Business Review (March 8, 2019), accessed at https:// hbr.org/2019/03/as-long-as-we-associate-leadership-with-mas culinity-women-will-be-overlooked. 9 Id. The views expressed in this President’s Message are those of the State Bar President. They do not necessarily reflect the views of all State Bar members and are not an official position of the State Bar itself.

dominance, and decisiveness. But today, the conversation is evolving. Qualities such as emotional intelligence, collabora tion, and resilience are recognized as equally—if not more— critical to success. As President of the State Bar, I have aimed to lead with a thoughtful and mindful approach, maintaining a steady hand in times of chaos. According to an ABA Profile of Women in the Legal Profession (2024), “When the history of the legal profession is written, 2016 to 2026 may become known as the Decade of the Female Lawyer—a time when the profession started to noticeably shift from a male majority to a female majority.” 4 Women now make up the majority of law school students, fed eral government lawyers, and law firm associates, and they are nearing parity among full-time law school faculty members. 5 In Montana, 40% of all lawyers are women. As of May 2024, 43% of all justices on the states’ highest courts were women. 6 These numbers reflect a broader shift in leadership demo graphics. Women were first admitted to the American Bar Association in 1918—two years before they were granted the right to vote. 7 Since then, they have made extraordinary prog ress. As more women enter the legal profession, the opportuni ties for them to assume leadership roles expand. Returning to my original question—does a woman have to become a man to become president? Research suggests otherwise. Scholars have concluded that overall gender dif ferences in leadership effectiveness do not exist. 8 Leadership today is increasingly defined not by gendered traits but by skills that foster connection, problem-solving, and adaptabil ity. With artificial intelligence taking over many task-based functions, leadership is shifting even further toward people management—requiring greater empathy, collaboration, and

WWW.MONTANABAR.ORG This CLE program has not been approved by the Montana Commission of Continuing Legal Education. Attorneys are responsible for submitting ap plications for credit and determining whether the content meets the requirements for CLE credit in Montana. APRIL-MAY 2025

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MEMBER NEWS

free time, Aimee enjoys being active in Montana’s outdoors and is a coach at Seven Devils CrossFit. She has had her work in the field of oceans law and regulation published. McFarland Molloy & Duerk announces New Partner and Name Change. McFarland Molloy & Duerk announces that Peter F. Lacny has joined the firm as a partner. Reflecting this addition, the firm will now practice under the name McFarland Molloy Lacny & Duerk. Peter brings a wealth of experience and a strong track record GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer welcomes news from mem bers including announcements of new positions, ad vancements, 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 it to montanala wyer@montanabar.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.

CAREER MOVES Jackson, Murdo & Grant, P.C., based in Helena,

welcomes Kris Goss as Of Counsel. Kris focuses on ac countable and transparent govern ment through compliance with open meetings and public records laws. In addition to his work with JMG, he is the Director of Library Learning Hub at Helena College.

Kris has also served as a law clerk in the chambers of the Honorable Sam E. Haddon in the United States District Court for the District of Montana. Prior to law school, Kris worked as the Governor’s K-12 Education Policy Advisor and Deputy Communications Director in the administra tion of Governor Judy Martz. He serves on the Board of Directors of the Trust for Montana Libraries. Kris was raised in Richland County and graduated from Sidney High School. Jackson, Murdo & Grant, P.C., based in Helena, welcomes Brittney Kuntz as an associate. Brittney

was born and raised in Great Falls, Montana. After high school, Brittney attended the University of Montana where she received her Bachelor’s in Communication Studies and Political Science. Prior to attending law school, Brittney gained valuable

to the team. His broad litigation practice includes high-stakes criminal defense in both federal and state courts, plain tiff’s personal injury cases, and com mercial litigation. Peter has obtained acquittals for clients in federal and state courts and handles appeals before the

public policy experience working for the State of Montana in the Governor’s Office and Department of Public Health and Human Services. In 2022, Brittney earned her Master’s in Public Administration and Juris Doctor from the University of Montana. Brittney is admitted to practice law in Montana state court and the United States District Court of the District of Montana. Jackson, Murdo & Grant, P.C., based in Helena, welcomes Aimee Hawkaluk also as an associate.

Montana Supreme Court and the U.S. Court of Appeals for the Ninth Circuit. He is also a proud member of the District of Montana’s Criminal Justice Act Panel, a Lawyer Representative to the Ninth Circuit Judicial Conference (2023-2026), and a member of the Ninth Circuit’s Standing Committee on Federal Public Defenders. (2024-2026). For more information, please visit: www.MissoulaLawyers.com. O’Brien Hatfield, PA announces Montana office location. O’Brien Hatfield, PA announces a new office location in Missoula, Montana. Attorney Mark J. O’Brien,

After earning her undergraduate degree in International Studies from Virginia Tech in 2009, Aimee earned her Juris Doctor from the University of Virginia in 2012. Aimee is admitted to practice in the United States District Court for the District of Montana, all State of Montana courts, and the U.S.

managing partner, previously opened an office in Whitefish, Montana in 2023 and also has offices in Florida, Massachusetts, and California. O’Brien Hatfield, PA prac tices criminal defense in state court, federal court, and appellate court. A member of the Montana Bar, the Florida Bar, and the Massachusetts Bar, Mark has nearly 30

Ninth Circuit Court of Appeals. Prior to joining JMG, Aimee practiced law at the Montana Department of Fish, Wildlife & Parks, the Montana Public Service Commission, and the Helena City Attorney’s office. She has experience in diverse areas of civil, criminal, and administrative law. These include practicing before administrative boards, prosecuting cases, advising governmental entities, land and water use, property law, employment law, business regulation, and utility law. In addition to practicing law, Aimee serves on the Board of Directors for Exploration Works and is a Board Member of the Helena Society of Human Resource Management. In her

years experience with criminal matters. After starting his ca reer as a prosecutor in Miami, Florida, Mark has become one of the most sought after federal criminal practitioners in the country. Mark welcomes attorney referrals and will compen sate in accordance with the rules of the bar of the attorney’s home state.

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MONTANA LAWYER

Parsons Behle & Latimer’s legal perspective is simple – we know our clients, understand their businesses and provide unsurpassed legal services from local attorneys. Our Missoula- and Helena-based attorneys understand Montana clients from family-owned farms and ranches to the largest corporations. We provide value-focused representation in water and environmental law; corporate, employment, real estate and tax law; complex commercial litigation; and can leverage firmwide resources to meet your legal needs. How can we assist you? parsonsbehle.com .

HELENA

John E. Bloomquist Of Counsel Water

Tara Rice Shareholder Real Estate

Abigail R. Brown Office Managing Shareholder Water

Betsy Story Associate Environmental

Ross P. Keogh Office Managing Shareholder Corporate & Tax

Jesse C. Kodadek Shareholder Litigation

Diana J. Abbott Associate Environmental

Liz M. Mellem Director and V.P. Employment & Labor

Jeffrey R. Kuchel Shareholder Litigation

MISSOULA

William T. Casey III Associate Litigation

Leah Trahan Associate Employment & Labor

Emma B. Dugenske Associate Corporate & Tax

Mathew T. Bain Associate Environmental

McKenna R. Ford Associate Intellectual Property

Elliott D. McGill Associate Litigation

201 East Broadway Street | Helena, Montana 59601 | 406.410.5050 127 East Main Street, Suite 301 | Missoula, Montana 59802 | 406.317.7220

WWW.MONTANABAR.ORG APRIL-MAY 2025 I DAHO • MONTANA • NEVADA • UTAH • WYOM I NG • PARSONSBEHLE.COM

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STATE BAR NEWS

Montana High School Mock Trial Champions Headed to Nationals

"It's a part of the mission of the State Bar to improve the relationship between the legal profes sion and the public, and educational programs like high school Mock Trial do just that by helping the public understand the role of the courts and how attorneys interact with them." —Ann Goldes-Sheehan, Associate General Counsel, State Bar of Montana The State Bar of Montana’s High School Mock Trial competition, held March 21–22 at the Lewis & Clark District Courthouse in Helena, brought together some of the state’s most promising young legal minds for two days of spirited courtroom competition. The event opened with a warm welcome from former State Bar President Stuart Segrest, who set the tone with a few thoughtful words on the importance of civic engagement and the value of legal education for youth. After several rounds of persuasive advocacy and razor sharp cross-examinations, the Helena High “Copper” team earned first place and will represent Montana at the National High School Mock Trial Championship, scheduled for May 7–10, 2025, at the Maricopa County Superior Court in Phoenix, Arizona. The national stage will give these students the chance to compete against top teams from around the country and deepen their understanding of trial procedure, case theory, and professionalism in the courtroom. During the competition, students were treated to a special lunchtime address from Montana Supreme Court Chief Justice Cory Swanson, who was recently elected to the state’s highest judicial office. Chief Justice Swanson shared insights into his personal journey to the bench, candidly answering students’ questions like “When did you know you wanted to be an attorney?” and “What was your most interesting case?” The students clearly enjoyed the opportunity to hear from him, and many expressed appreciation for the time he took to offer tips, reflections, and encouragement. Mock Trial is more than just a contest—it’s a hands-on civics lesson that equips students with skills in critical think ing, public speaking, and collaboration while deepening their appreciation for the judicial system. Congratulations to all of this year’s teams—and a big cheer for the Helena High “Copper” team as they prepare to take the national stage in Phoenix!

State Champions Helena High “Copper” Team

Court Room Artist Winner

Award winners for best attorney and best witness

Volunteers Needed: The State Bar is looking for attorney volunteers to coach teams in communities across Montana. No prior coaching experience is required—just a passion for mentoring and a willingness to guide students through the fundamentals of trial advocacy. Interested? Email mocktrial@montanabar.org to get started.

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PRO BONO CHRONICLES

Clean Slate Clinic Gives Montanans a Fresh Start SUBMITTED BY: JOEY FLATLEY AND EMILY ROBERTS (JUSTICE FOR MONTANANS AMERICORPS MEMBERS); FRANKIE GARNER AND AMY REAVIS (MLSA STAFF)

Over 60 Montanans got a fresh start this March through the Clean Slate Clinic, an expungement project piloted by Montana Legal Services Association, a team of volunteer law students from the University of California, Berkeley, and a dozen volunteer Montana attorneys. The weeklong criminal record expungement clinic was the first of its kind in Montana. Volunteers assisted low income participants in drafting petitions asking courts to remove old misdemeanor convictions from their records. Clinic locations included Helena, Bozeman, and Billings. In 2019, the Montana Legislature passed the Misdemeanor Expungement Clarification Act, allowing for expungement of misdemeanor convictions–more minor offenses for which the sentence imposed is time in the local jail or simply a fine. Codified under Title 46, Chapter 18, part 11, MCA, the Act allows anyone with misdemeanor convic tions from a Montana court to petition for expungement. There is a presumption in favor of expungement for most misdemeanors when at least five years have passed since sentence completion. For certain misdemeanors, such as as sault and DUI, expungement is not presumed and the court will consider various individualized factors before granting expungement. Amy Reavis, who directed the clinic, is an attorney with MLSA working under a two-year Skadden Fellowship. The fellowship supports recent law school graduates committed to addressing civil legal issues faced by people in poverty. Reavis’s fellowship project focuses on representing survi vors of domestic violence with criminal records in various civil matters. After successfully securing expungement for

several clients, she began looking for ways to make expunge ment more accessible to the general public. Around the same time, a group of Berkeley Law students reached out to see if MLSA was interested in hosting them for a weeklong alternative spring break service trip through their school’s pro bono program. With support from MLSA staff, Justice for Montanans AmeriCorps members, and licensed pro bono Montana attorneys, the Clean Slate Clinic started to take shape. “This clinic was a laboratory,” Reavis explained, “to see how we might be able to scale expungement assistance for more Montanans and to test out new pro se expungement forms that will soon be available on MLSA’s and the Judicial Branch’s public websites. It was fortunate timing to have the help of eight talented Berkeley Law students for the entire week.” Previously, Montanans who could not afford an attorney navigated an opaque and daunting legal process on their own or simply continued to live with a criminal record. Reavis recognized that low-income Montanans who could not af ford representation were the very people who could benefit most from a clear criminal record. “Creating a process that was free, clear, and positive was paramount,” Reavis reflected. A criminal record can affect someone’s stability and well being long past the completion of a sentence. Participants in the Clean Slate Clinic cited difficulties in obtaining stable housing and employment, along with the social stigma as sociated with having a record. One individual described their convictions as “hanging over my head for more than two

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decades,” denying them “housing, employment opportuni ties, the ability to volunteer in my child’s school, and more.” Another participant shared, “I was unable to get a career in the field I went to school for and for what I am certified to do.” When asked about how a clear record would benefit them, clinic participants listed the ability to seek better opportuni ties, being more confident in themselves, and moving on from their convictions. “I will feel free of labels, chains, and embarrassment and regret when applying for jobs,” one participant said. Another shared, “It represents a major mile stone and serves as one of the major processes of one chapter ending and another chapter beginning. It will definitely open up new doors for me.” Many participants also highlighted that they had made significant positive changes in their lives since their conviction and that expungement represented an affirmation that they are not the person they used to be. As one participant stated, “I feel I am a normal citizen but my records are over my head every day, reminding me of the bad decisions I made in my past and how it was going to affect me later in life.” Volunteers from Berkeley Law and the Montana bar donated a total of 300 hours to the clinic. Reflecting on the week, Berkeley Law student leader Anisa Ricci said, “Assisting participants with expungement petitions was in spiring. It was an honor to hear their stories, craft their narra tive, and help them take the first step toward a clear record." Pro bono attorney Carol Grell Morris called the

experience, “an excellent opportunity to complete pro bono work even in an area of law which was not well-known to me. MLSA provided useful and timely training to orient the volunteer attorneys to the 2019 Act, and also provided all necessary conviction files ahead of the clinic dates. This al lowed the volunteer attorneys to focus on actual participant meetings to draft expungement petitions. I would volunteer again without hesitation if a second Clean Slate Clinic oppor tunity is offered in the future.” Looking ahead, Reavis shared, “I’m excited about the future of criminal record relief in our courts and at the Legislature. Right now, felony expungement remains un available under Montana law, and the processes we have for clearing misdemeanors, marijuana offenses, and deferred sentences could benefit from streamlining and automation. Although there’s still work to be done, the participants in this clinic are paving the way–advocating for the importance of second chances and demonstrating what’s possible with a clean slate. People are so much more than what comes up on their background checks.” The misdemeanor expungement packet for self-represent ed litigants will soon be publicly available on MLSA’s website, MontanaLawHelp.org, and the Montana Judicial Branch’s forms website, https://courts.mt.gov/forms/. You can learn more about MLSA’s pro bono opportuni ties by contacting MLSA’s Pro Bono Program at probono@ mtlsa.org..

Jesse C. Kodadek Elected Shareholder

Parsons Behle & Latimer congratulates Jesse C. Kodadek on becoming one of its newest shareholders. Jesse is a litigator in the firm’s Missoula office who focuses his practice on real estate-related litigation and commercial litigation, including consumer-side class actions and complex insurance issues. Jesse is also a recognized authority on public road, easement and access issues throughout Montana. Learn more about Jesse at parsonsbehle.com .

127 E. Main Street, Suite 301 | Missoula, Montana 59802 | 406.317.7220 A Different LEGAL PERSPECTIVE

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News and Notes from the State Law Library FRANKLIN RUNGE FOR YOUR REFERENCE

Library is lucky to have two reference librarians who are bright, hardworking, and kind. If you need assistance finding resources, an obscure citation, or a legislative history, please do not hesitate to contact our team at mtlawlibrary@ mt.gov. Continuing Legal Education. The Law Library provides CLE materials that you can check out or free online streaming options. If you watch one of our online CLEs, our website allows you to generate a Certificate of Completion, which you can then upload to the State Bar of Montana’s website. The materials that are not streaming online, but are physical materials we circulate, are CLEs from the National Business Institute (NBI). Our website will tell you what titles are available, and we will mail them to your office. As you can imagine, this is a popu lar service, so please be prompt in returning materials by the due date. Montana Legislative Histories. For decades, the State Law Library has compiled, archived, and digitized legislative histories. Our collec tion is generated by patron requests; therefore, it is not comprehensive. That said, we have thousands of legislative histories from the 1950s to present, with the bulk of the collection reflecting the period from 1974 to 2003. We have started a project to make all these materi als freely available on the Internet Archive. The project has begun with the earliest legislative histories, and we are posting the collection in chronological order (at the time of this article’s publication, we are up to 1981). Please visit our website for access and additional information. Do not hesitate to contact the Law Library with your reference questions or suggestions. We look forward to assisting in your research journey and hopefully generating some happi ness along the way.

I believe in the adage that if you want to be happy, you should start by making someone else happy. This explains why our library does a lot of laughing around the office. We assist the bench, bar, and citizens with their legal infor mation needs, which are a fantastic mix of the mundane to the arcane. The following are some initiatives that the Law Library is working on to make the life of a Montana lawyer a little easier, and I dare say that some of these efforts might even make you happy. Digital Library. We provide a digital library for individuals who possess one of our library cards. A link to the Digital Library can be found on our homepage. This resource contains 120 titles (and counting) covering topics from em ployment discrimination, mining law, agricul tural law, workers’ compensation, real property, defending traffic violations, civil procedure, and more. We are happy to spend significant resources on making you more confident in your research, pleadings, and practice. Many of these titles are published by LexisNexis, but the platform allows us to host additional titles from other publishers. If you do not have a Lexis+ account, it seems shortsighted to not take ad vantage of this resource. Even if you do have an online Lexis+ account, the Law Library’s collec tion of treatises might be more comprehensive than your plan. When you go to the Digital Library, you will be prompted to sign-in using your Law Library card number. If you do not have a Law Library card, you can receive one by contacting us at: lawlibcirc@mt.gov or (406) 444-3660. As I type this article, our country is going through a period of financial uncertainty, let me suggest to you that it is hard to beat the Law Library’s price of zero dollars and zero cents. Reference Assistance. When it comes to legal research, your suffering is optional. Our Law

Since 2023, F ranklin L. Runge has served as the State Law Librarian of Montana. He is a graduate of Northeastern University School of Law and has a master’s degree in library science from Indiana University. Before join ing Montana’s Judicial Branch, Franklin practiced law in Massachusetts and then worked for eleven years in higher education .

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AMENDED ETHICS OPINION 080711 (2025) ETHICS Ethics Opinion 080711 noted that Montana Rule of

legal services or confers benefits on the client as provided for in the written statement of the basis of the fee, if a writ ten statement is required by Rule l.5(b). See also Restatement (Third) of the Law Governing Lawyers §§ 34, 38 (1998). Rule l.5 does not prevent a lawyer from entering into these types of arrangements. 4. To determine when an advance “fixed” or “flat” fee is earned, the written statement of the basis or rate of the fee should include a description of the benefit or service that justi fies the lawyer’s earning the fee, the amount of the advance unearned fee, as well as a statement describing when the fee is earned. Whether a lawyer has conferred a sufficient benefit to earn a portion of the advance fee will depend on the cir cumstances. Rule 1.5(b). The circumstances under which a fee is earned should be evaluated under an objective standard of reasonableness. Rule l.5(a). 5. A lawyer and client may agree that a “flat” or “fixed” fee or a portion of a “flat” or “fixed” fee is earned in various ways. See, e.g ., New Hampshire Bar Assoc. Ethics Committee Practical Ethics Article, Practical Suggestions for Flat Fees or Minimum Fees in Criminal Cases (Jan. 17, 2008). See also I n re Mance , 980 A.2d 1196, 1202, 1204-1205 (D.C. 2009), cit ing Alec Rothrock, T he Forgotten Flat Fee; Whose Money is it and Where Should it be Deposited? , 1 FLA. COSTAL L.J. 293, 323 (1999) for the proposition that some opinions “allow the lawyer to withdraw fees according to milestones ‘based upon passage of time, the completion of certain tasks, or any other basis mutually agreed upon between the lawyer and client.’” For example, the lawyer and client may agree to an advance flat fee that will be earned in whole or in part based upon the law yer’s completion of specific tasks or the occurrence of specific events, regardless of the precise amount of the lawyer’s time involved. For instance, in a criminal defense matter, a lawyer and client may agree that the lawyer earns portions of the flat fee upon client consultation, the lawyer’s entry of appearance, review of discovery, preliminary hearing, pretrial conference, disposition hearing, motions hearing, trial, and sentencing. Similarly, in trusts and estates matters, a lawyer and client may agree that the lawyer earns portions of the flat fee upon client consultation, legal research, completing the initial draft of testamentary documents, further client consultation, and completing the final documents. A sample fee agreement based upon a Colorado model form is attached for further guidance. See, e.g., Colo. Rules of Prof’l Conduct R. 1.5(h) (defining a flat fee, explaining proper handling, setting forth required contents of the agreement, and appending an authorized form agreement). 6. The portions of the advance “flat” or “fixed” fee earned as each such event occurs need not be in equal amounts. However, the fees attributed to each event should reflect a rea sonable estimate of the proportionate value of the legal services the lawyer provides in completing each designated event to the

Professional Conduct (MRPC) 1.5 permits a lawyer to charge a fixed or flat fee, provided that the agreement meets other obligations of professional conduct, including full disclosure to the client, reasonableness of fees, refund obligations, and de positing funds. The original Opinion 080711 indicated that the use of the terms “nonrefundable” and “earned on receipt” are “discouraged.” In 2023, the American Bar Association (ABA) issued Formal Opinion 505, indicating that a fee paid to a law yer in advance for services to be rendered in the future must be placed in a client trust account and may be withdrawn only as earned by the performance of the contemplated services. The Committee has reconsidered the original Opinion 080711 in light of this and other recent guidance, and now clarifies the following three points: 1) a fee paid to a lawyer in advance for services to be rendered in the future must be placed in a Rule 1.15-compliant trust account and may be withdrawn only as earned by the performance of the contemplated services; 2) it is not accurate to label a fee “nonrefundable” or “earned on receipt” before it actually has been earned, and labels do not dictate whether a fee has been earned; and 3) it is not possible for a lawyer to contract around the requirements that all fees must be reasonable and unearned fees must be returned to the client or the inherent unreasonableness of retaining a fee that has not been earned yet. These points are derived from the ap plication of MRPC 1.5(a), 1.5(b), 1.15(a), 1.15(c), 1.15(d), and 1.16(d). 1. Under the general anti-commingling rule, MRPC 1.15(a), client property, which includes unearned fees paid in advance, must be held in an account separate from the lawyer’s own property. Rule 1.15 was amended to address specifically the issue of advance fees in a new paragraph (c): “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.” Therefore, advances must be placed into a client trust account until those fees are earned. 2. If a “flat” or “fixed fee” is paid by the client in advance of the lawyer performing the legal work, the fees are an advance. Use of the term “flat fee” or “fixed fee” does not transform the arrangement into a fee that is “earned on receipt.” Lawyers may want to ensure payment and may, therefore, ask for a fee to be paid in advance before committing to the representation. If they do, then that fee must be placed in a Rule 1.15-compli ant trust account, to be disbursed to the lawyer only after the fee has been earned. 3. Advances of unearned fees, including advances of all or a portion of a “fixed” or “flat” fee, are funds the client pays for specified legal services that the lawyer has agreed to perform in the future. Pursuant to 1.15(c), the lawyer must deposit an ad vance of unearned fees in a Rule 1.15-compliant trust account. The funds may be earned only as the lawyer performs specified

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anticipated legal services to be provided on the entire matter. See Rule l.5(a). 7. The Rules do not allow a lawyer to sidestep the ethi cal obligation to safeguard client funds by characterizing an advance as “nonrefundable” and/or “earned upon receipt.” A lawyer may not charge an unreasonable fee. See Rule 1.5(a) (“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”). A lawyer may require advance payment of a fee but is obliged to return any unearned portion. See Rule 1.16(d). See also, Rule 1.15(c). Therefore, under the Rules, an advance fee paid by a client to a lawyer for legal services to be provided in the future cannot be nonrefundable. Any unearned portion must be returned to the client. Labeling a fee paid in advance for work to be done in the future as “earned upon receipt” or “nonrefundable” does not make it so. See , e.g., In re O’Farrell , 942 N.E.2d 799, 803 (Ind. 2011) (“Regardless of the term used to describe a client’s initial payment, its type is determined by its purpose, i.e., what it is intended to purchase.”); Mo. Sup. Ct. Advisory Comm. Formal Op. 128 (Amended 2018) (labels not conclusive); In re Wintroub , 277 Neb. 787, 801; 765 N.W.2d 482 (2009) (citing cases from several jurisdictions for the proposition that “a lawyer may not retain an unearned fee, even if the fee agreement clearly provides that the fee is nonrefundable”); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Turner , 918 N.W.2d

130, 147 (Iowa 2018) (simply labeling payment of advance fees as “nonrefundable” does not relieve attorney from obli gation to deposit them into trust accounts). 8. As noted in the original Opinion, an “engagement retainer fee” or “general retainer” is a “fee paid, apart from any other compensation, to ensure that a lawyer will be available for the client if required. Such a retainer must be distinguished from a lump-sum fee [i.e., a “flat” or “fixed fee”] constituting the entire payment for a lawyer’s service in a matter and from an advance payment from which fees will be subtracted ( see Restatement (Third) of the Law Governing Lawyers § 34, Comment e and § 38, Comment g). An en gagement or general retainer fee agreement must comply with Rule l.5 and should expressly include the amount of the retainer fee, describe the service or benefit that justifies the lawyer’s earning the retainer fee, and state that the retainer fee is earned upon receipt. As defined above, an engagement or general retainer fee will be earned upon receipt because the lawyer provides an immediate benefit to the client, such as foregoing other business opportunities by making the law yer’s services available for a given period to the exclusion of other clients or potential clients, or by giving priority to the client’s work over other matters. A sample form is available on the State Bar’s website at https://www.montanabar.org/ News/View/ArticleID/12105

The Humane Society of Western Montana is proud to host the Mountain Animal Welfare Summit June 11-13th at the University of Montana. This conference includes a dedicated track for law enforcement professionals who are faced with navigating animal cruelty cases. Whether you’re a county attorney, animal control officer, sheriff or member of the Animal Law Section (or just interested!), this session offers valuable insight and a platform to share the unique challenges facing your community. This specialized course will cover the full scope of animal cruelty issues, from understanding applicable laws to navi gating the complexities of building a case and taking it to trial. A key feature of the training includes a simulated crime scene modeled after recent Montana cases, offering a hands on, real-world experience.

We developed this track because we recognize that ani mal cruelty cases are often complex, especially in rural areas like Montana. Many incidents go unseen, and often, when discovered are so large or costly to prosecute that coun ties are left without clear solutions. Our goal is to equip law enforcement across the state with practical tools and knowl edge to address these cases effectively. We are confident that every county in Montana is likely facing—either now or in the near future—an animal cruelty or hoarding situation. The team of experts we have assembled for this track are here to help you be ready. 5.25 hours of general Continuing Legal Education has been approved. Scholarships are available in the law enforcement track. To register to to https://myh swm.org/summit/ For more information on individual ses sions and speakers https://myhswm.aflip.in/summitguide.

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LEGISLATIVE UPDATE 2025 Legislative Session Lobbying Efforts

The 2025 Montana Legislature consid ered a number of bills affecting the regula tion of the legal profession and adminis tration of justice in Montana. The State Bar of Montana once again took an active role at the Capitol, providing testimony and advocacy on a number of measures. Pursuant to Board Policy 3-102, as well as the State Bar Bylaws and control ling authority from Reynolds v. State Bar of Montana, the State Bar may lobby and take positions on various legislative mat ters including: “A. Issues relating to the regulation and discipline of attorneys; B. Issues relating to the functioning of the court, and to judicial efficiency and efficacy; C. Issues relating to the availability of legal services; D. Issues relating to attorney trust ac counts; E. Issues relating to the education, ethics, integrity and regulation of the legal profession; F. Issues relating to law reform, adoption of uniform laws and statutory improvement.” The Bar reviewed a number of bills relating to the regulation of attorneys and the administration of the legal profession. The Bar opposed SB 92 (failed) , which proposed revisions to the eligibil ity requirements for practicing law in Montana and sought to legislatively undo the Montana Supreme Court’s Unification Order creating the State Bar, in violation of its constitutional role regulating in the legal profession. The State Bar opposed HB 65 (failed) which proposed a legislative performance audit of the State Bar of Montana. The State Bar is not a component of the State of Montana and is not funded by leg islative appropriation. Regulation of a attorneys is the province of the Montana Supreme Court. SB 14 (failed) called for a perfor mance audit of the Office of Disciplinary Counsel. For the same reasons, the State Bar also opposed SB14. SB14 and HB65 also raised significant confidentiality is sues pertaining to members of the profes sion and their Bar records. SB 31 (failed) proposed altering IOLTA accounts. The Bar noted that such matters fall under the Montana Rules of

Professional Conduct, which are adopted and maintained by the Court. The State Bar opposed this legislation. S B 193 (passed as amended) as intro duced, attempted to shift to the execu tive branch control of the Montana bar exam. The bill was amended, but the State Bar opposed attempts by the Legislative Branch to regulate attorney admission. The State Bar opposed SB 49 (failed) which would have exempted attorneys serving in certain public offices from professional discipline for actions taken while in office, undermining uniform standards of accountability within the legal profession. On matters relating to the function ing of Montana’s courts, the State Bar supported HB 2 (passed) , the General Appropriations Act, which included the judicial budget in Section D. The Bar also supported HB 111 (passed) , which adopts the Uniform Electronic Legal Material Act to ensure access and authentication of digital legal publications. As in past sessions, the Bar opposed numerous bills that proposed structural or electoral changes to Montana’s judi ciary. These included HB 751 , and SB 42 (all failed) , which proposed partisan judicial elections — a stance long opposed by the by the organized bar in Montana, including the State Bar’s predecessor, the Montana Bar Association, which in 1935 helped pass legislation making judicial elections nonpartisan. The Bar also opposed HB 646 (failed) , which would have required election of Montana Supreme Court justices by district, and HB 322 (failed) , which pro posed reducing the number of associate justices. Other proposals that died in cluded HB 295 and HB 788 (both failed) , which would have required civil attor neys (but not parties) to disclose certain political contributions already disclosed by the recipients — measures the Bar viewed as chilling attorney participation in elections. Additionally, HB 39 (passed) pro posed repealing restrictions on political party contributions to judicial candidates. The Bar has consistently supported

maintaining a judiciary that is impartial and removed from direct political influ ence and, for this reason, opposed legisla tion supporting partisan judicial elections. The State Bar opposed a number of measures that sought to modify or limit the Montana Supreme Court’s constitu tional authority or redefine the traditional separation of powers. Among these was HB 30 (failed) , which would have required the Court to apply a heightened burden of proof when reviewing the constitutionality of legislative acts — which intruded into the court’s established jurisprudence. The Bar also opposed SB 13 and SB 21 (failed) , which would have removed the Court’s original jurisdiction over ballot issues and authorized legislative and ex ecutive leaders to vacate writs of manda mus. Both measures raised separation of powers concerns. Additional measures — SB 44 and SB 476 (failed) — attempted to legislate the definition of “separation of powers.” These bills, too, were viewed by the State Bar as problematic. The Bar opposed two joint resolutions as well: SJ 2 (failed) , which disapproved of recently adopted Montana Supreme Court rules, including rules concerning the regulation of attorneys, in contraven tion of long-standing precedent, and HJ 14 (failed) , which rejected the founda tional precedent of Marbury v. Madison , characterizing supreme court rulings as merely advisory. The Bar opposed several proposed constitutional amendments. HB 460 (failed) would have allowed a certain percentage of electors in a county to force the impaneling of a grand jury, bypassing judicial discretion. LOBBYING EXPENSES & REFUND PROVISIONS Please see page 18 for an expla nation of the State Bar’s expens es during the legislative session and information on requesting a pro rata dues refund if you object to the sepending.

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The State Bar opposed SB 15 (failed) which proposed to ex pand the grounds for impeachment, including for judicial officers, adding a negligence standard, in a broad departure from tradi tional impeachment grounds. Lastly, SB 66 (failed) proposed revisions to legal definitions affecting the judiciary, adding a new definition of bias to include even facial expressions of judges. The State Bar opposed this legislation. The State Bar’s preference list and additional information about legislation tracked during the session are available at: www. montanabar.org/News/Legislative-News Montana may not use funds derived from compulsory dues for lobbying purposes unless the State Bar makes provision to refund members dissenting to such lobbying an aliquot portion of com pulsory dues paid by said members, said refund to be based upon the proportion of the lobbying expenses incurred by the State Bar to the number of dues-paying members…” 2025 Session Lobbying Expenses and Refund The Bar’s lobbying expenditures for the 2025 Legislative Session are filed with the Montana Commissioner of Political Practices and are available online at www.montanabar.org/News/ Legislative-News. The calculated refund is $13.93. Dues Refund Policy In compliance with the Reynolds decision, the refund procedure is outlined in Policy 3-104. Members who object to the use of their dues for the State Bar’s legislative positions during the 2025 session may submit a pro rata refund request. Deadline: Requests must be submitted within 45 days of the publication of this notice. Decision: The State Bar Board of Trustees will consider the request and issue a decision within the timeframe set by policy. To Request a Refund: Send a signed written objection and

The State Bar opposed several measures that sought to al ter judicial conduct standards and discipline systems in ways that conflicted with existing judicial authority or constitutional principles. Among them was HB 169 (failed) , which attempted to effectively legislatively rewrite a portion of the Montana Code of Judicial Conduct. The Bar also opposed HB 224 (failed) , which would have statutorily prohibited judges from seeking or accepting political endorsements — a subject already addressed under the Montana Code of Judicial Conduct and therefore properly governed by the judiciary. The State Bar of Montana routinely supports or opposes leg islation during the Montana Legislative Session that aligns with the Bar’s established purposes, which include: Aid[ing] the courts in maintaining and improving the administration of justice,” and “Insur[ing] that the responsibilities of the legal profession to the public are more effectively discharged.” (Article III, Constitution of the State Bar of Montana) In addition to the Bar’s Constitution and Montana Supreme Court orders establishing the Bar’s purposes, the Bylaws of the State Bar of Montana (Article I, §4(b)) and Policy 3-102 guide the Executive Committee in making legislative decisions. Under these policies, the State Bar may take a position on is sues falling within the following categories: A. Regulation and discipline of attorneys B. Functioning of the courts, judicial efficiency, and efficacy C. Availability of legal services D. Attorney trust accounts E. Education, ethics, integrity, and regulation of the legal profession F. Law reform, adoption of uniform laws, and statutory improvement Policy 3-102 further provides that, even if an issue falls outside these categories, the Bar may still take a position if: The issue is of great public interest; Lawyers are especially suited to evaluate and explain the issue to the public; and The subject matter affects the rights of those likely to come into contact with the legal system. In Reynolds v. State Bar of Montana , 660 P.2d 581 (Mont. 1983), the Montana Supreme Court ruled that: “The State Bar of Indian Law Week In Review SUBMITTED BY SAPPHIRE CARTER & KRISTINA LUCERO The University of Montana Native American Law Student Association (“NALSA”) held its annual Indian Law Week from April 14 through 18. This year’s theme was The Future of Sovereignty: Building Resilience and Leadership in Indian Country. On the first day, NALSA, Baucus Institute, and the University of Montana Alexander Blewett III School of Law Admissions hosted a group of aspiring attorneys from students and pro fessionals across the state of Montana for our third annual American Indian Law Preview Day. The group learned strategies for taking the LSAT, enjoyed a tour of the law school, and sat in

Dues Refund Notice – 2025 Montana Legislative Session

request for refund to: State Bar of Montana P.O. Box 577 Helena, MT 59624

The request must include the challenger’s name, mailing ad dress, phone number, Bar number, and any other information required by Policy 3-104. The full Bylaws and Policies of the State Bar of Montana are available at: https://www.montanabar.org.

on Professor Kekek Stark’s American Indian Diplomacy: Tribal State Relations course. The day ended with a panel where current Native American law students shared about their experiences while attending law school. The group also heard from power house tribal advocate Frank Ducheneaux (Cheyenne River Sioux) about his long career serving Indian Country in the federal gov ernment and at the National Congress of American Indians. In the evening, NALSA screened the film Demon Mineral . The film documents the history of uranium mining on the Navajo Nation. The next day NALSA held a panel on Indigenous

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