Montana Lawyer June/July 2024

JUNE/JULY 2024 VOL. 49 | ISS. 3

Pro Bono Policies and Best Practices

Also Inside: You Might Be Secretly Lonely If... The Ins and Outs of IRS Form 1099s

JUNE/JULY 2024 VOL. 49 ISS. 3 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

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

12

Antoinette “Toni” Tease, Billings Secretary-Treasurer (Acting) Erica R. Grinde, Missoula Immediate Past President David Steele, Missoula Chair of the Board Aislinn Brown, Helena 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

Pro Bono Policies and Best Practices MORGAN DAKE

You Might Be Secretly Lonely If...

The Ins and Outs of IRS Form 1099s

23

14

ALSO IN THIS ISSUE

Position Vacant, 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 JURY ECONOMICS 17 LEGISLATIVE UPDATE 18 RISK MANAGEMENT

22 STATE BAR NEWS 25 TECH TIPS 26 COURT NEWS 27 IN MEMORIUM 28 JOB/CLASSIFIEDS

PRESIDENT’S MESSAGE

Embracing Change As the axiom goes, the only con stant in life is change. When it comes to the legal profession and the delivery of legal services, change is indeed the operative word. Professionalism, training, and ethical conduct remain hallmarks of our work as counselors and attorneys at law. In my view, we must never lose sight of that. But the limited num ber of attorneys and the cost of legal services is pushing access to justice out of reach for far too many Americans. That hard reality is bringing about important conversations on the future of the legal profession in states across the country. Despite the overwhelming generos ity of many of you through pro bono work, the unserved population re mains staggering. Indeed, as I under stand the data, even if each licensed attorney performed all required pro bono hours, this would still not meet the estimated need for services. This justice gap is only heightened in Montana’s rural areas, in so-called legal deserts, where there are few, if any, attorneys. Our experience in Montana is not unique. In states across the American west, courts and bar organizations are working to close the gap through innovative programs such as Alaska’s Civil Justice Worker model, which partners that state’s rural healthcare network with legal services organi zations, under the authority of the Alaska Supreme Court, to allow some non-lawyer civil justice workers to assist citizens with limited legal is sues. That program is being studied throughout the country, including here in Montana. Other paraprofes sional models are gaining steam in Arizona and Texas. Likewise, legal education and the way we study law is changing. The ABA Section of Legal Education and Admission to the Bar recently ap proved moving forward with ac crediting online-only law schools (a proposal the State Bar of Montana supported), to bring legal education to those who cannot relocate for law

school, while keeping strong national accreditation standards. The bar exam is changing as well with the rollout of the NextGen Bar Exam, including additional focus on experiential learning (an area the University of Montana, Blewett School of Law already excels in) and assessment of readiness to enter the profession. The Montana Board of Bar Examiners is considering adopting the new exam in 2027. The changes and others (generative AI, e.g.) are coming as the State Bar of Montana celebrates fifty years this year. The Montana Supreme Court, when unifying the State Bar, explained that the controlling interest under consid eration was: “How is the public best served.” As we address these changes facing the profession, it behooves us to again consider that important question. In my view, we must examine these changes, and how we will respond to them, as we look to the future of our profession and our service to the public. That’s why we are putting together a Task Force on the Future of the Profession. The Task Force will exam topics like legal education and admis sion to the bar, legal delivery models being developed elsewhere, access to justice in rural and underserved areas, and sweeping technological changes like generative AI. We also plan to sur vey the bar, asking for your invaluable input on these various matters. The Task Force hopes to issue an interim report by late 2024 and a final report a year from now. As we rollout out the Task Force, and topic subcom mittees, in the coming weeks, I hope that you will take time to engage with its members and the State Bar in this important endeavor. This is our chance to help shape the legal profession in Montana for the next fifty years.

Stuart Segrest is a senior at torney at Christensen & Prezeau, PLLP where he handles a wide range of litigation and appel late matters. Before joining the firm, he worked for the Montana Attorney General’s Office, where his career spanned the terms of four different Attorney Generals. He served as Chief of the Civil Services Bureau, which repre sents 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.

4

WWW.MONTANABAR.ORG

MONTANA LAWYER

Trusted by 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. I love LawPay! I’m not sure why I waited so long to get it set up. – Law Firm in Ohio

+

Member Benefit Provider

22% increase in cash flow with online payments

Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA

62% of bills sent online are paid in 24 hours

YOUR FIRM LOGO HERE

Trust Payment IOLTA Deposit

New Case Reference

***

**** **** **** 9995

TOTAL: $1,500.00

POWERED BY

PAY ATTORNEY

Get started at lawpay.com/montanabar 877-245-4845

Data based on an average of firm accounts receivables increases using online billing solutions.

LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA, Synovus Bank, Columbus, GA., and Fifth Third Bank, N.A., Cincinnati, OH.

JUNE-JULY 2024

5

WWW.MONTANABAR.ORG

MEMBER AND SECTION NEWS

CAREER MOVES McFarland Molloy & Duerk Dylan McFarland, Seamus opening of their office in Missoula on March 1, 2024. McFarland Molloy & Duerk will primarily focus their prac tice on the Plaintiff’s side of personal injury, wrongful death, product liability, medical and professional malpractice, construction defects, and insurance coverage issues. With the opening of their office, McFarland Molloy & Duerk will not only litigate cases, but will also focus on mediation work. Adam Duerk has been certified by the National Association of Certified Mediators. After having tried dozens of cases to jury verdict over the last 20 years from a wide variety of case types on behalf of a diverse array of parties, Adam plans to bring his litigation experience to bear as a mediator for all case types. Find McFarland Molloy & Duerk at www. MissoulaLawyers.com. A&M Law announces new Missoula firm. Attorneys Misty D. Gaubatz and Ashley Hurbert are proud to announce the open ing of A&M Law in Molloy, and Adam Duerk announce the

GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer wel

to montanalawyer@montana bar.org. Please direct any ques tions to the same address. We will include firm name, lo cation, the change that is being announced, attorney’s name, law school, practice areas, and a high-resolution photo.

comes news from members including announcements of new positions, advancements, honors, appointments and pub lications. 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 Misty received her J.D. from the Alexander Blewett III School of Law. Prior to practicing law, she was the clinical law clerk for the Honorable Donald W. Molloy in the United States District Court for the District of Montana. Misty takes an individual ized, client-centered approach to the law, and she has an affinity for ap pellate cases. You can contact her at Misty@MyMontanaLawyer.com Ashley hails from Butte and received her J.D. from the University of North Dakota School of Law; she Montana’s Premier Divorce Podcast! Be a guest on cialty in complex cross-jurisdictional cases. You can contact her at Ashley@ MyMontanaLawyer.com. A&M Law can be reached at 406 830-3060, or at MyMontanaLawyer. com. Judnich Law Office is pleased to announce the addition of Kimberly Durham Esq., to the Missoula Office. has been practic ing law for more than 15 years. While she handles a vari ety of cases, Ashley has a unique spe

Kimberly joins the office as an experi enced criminal defense

attorney that will be focusing her practice on DUI defense as well as family law matters. Kimberly graduated from the University of Montana School of

law and is also a small business owner with multiple businesses in the state of Montana.

SECTION NEWS The Bankruptcy Section is hosting its annual two-day CLE at the Heritage Inn in Great Falls on July 25-26, and attendees can join us for some or all of the seminar. Don’t miss the Thursday evening reception and dinner, which is always one of the best parts of the event for networking and socializing with Court members, Trustees, practitioners, professors and others from around the state and sometimes farther. And, Friday the 26th is the starting date of the Montana

the heart of Missoula. A&M Law’s practice areas include Criminal Defense and Family Law. They also handle

Eviction and Personal Injury cases.

Gift your clients a

resource!

Hear Stories & Advice from:

CO-PARENTS

DIVORCED COUPLES

FINANCIAL EXPERTS FAMILY LAWYERS

BEHAVIORAL, MENTAL HEALTH, REAL ESTATE, & OTHER PROFESSIONALS

KARENMCNENNY.COM/GOOD-DIVORCE-SHOW/

LISTEN NOW

6

WWW.MONTANABAR.ORG

MONTANA LAWYER

State Fair at the ExpoPark in case you want to stay over for that event. Because newer attorneys entering the bankruptcy practice have told us that a need exists for a “Nuts & Bolts” element, this year’s two-day seminar is devoting the entire Thursday half-day session to beginner bankruptcy topics. Friday’s full-day schedule is set up like our typical presentations have been in the past. Judge Benjamin P. Hursh will wel come Thursday’s afternoon attendees before Billings bankruptcy guru Andy Patten and his veteran paralegal, April Boucher launch our Nuts & Bolts event with their presentation on representing Debtors. From the creditor’s perspec tive, Lewis Stoddard will present next on general topics and practice pointers for creditors and their counsel. After that, Chapter 13 Trustee Robert Drummond, will deliver a primer on Chapter 13, followed by Jason Naess from the U.S. Trustee’s Office in Boise with a perspective on the bankruptcy practice from the Department of Justice’s viewpoint. The Section then hosts a lively reception before our annual dinner on-site. On Friday, we have a full day planned starting off with Judge Hursh and his former law clerk, Elliot McGill, plus his current law clerk, Seamus McCulloch, highlighting Evidence issues. After that, Jonathan Seymour, a nationally recognized law professor and scholar from the Duke University School of Law, will speak about the Termination of a Bankruptcy Estate. The rest of Friday’s program is filled with these speakers and topics: Dylan Crouse (considerations for lenders before making a loan), Professor Jon Byington with Robert Drummond and Burt Ward (Lien Perfection problems), a report from the Local Rules Committee, and advice on Effective and Persuasive Legal Writing and Oral Argument from Tim Tatarka, the U.S. Attorney’s Office Appellate Chief in Montana. Our extensive program will conclude with Judge Hursh, who always offers an nual remarks and his useful observations on the Bankruptcy Practice in Montana. Please join us for one or both days - we would love to see you in the Electric City! Daniel S. Morgan, a partner in Morgan

Law Offices (Missoula), is the 2023-24 Bankruptcy Section Chair .

Kekek Startk, Turtle Mountain Ojibwe and Bizhiw (Lynx) member and Co-Director of the UM Indian Law Program; the Margery Hunter Brown Indian Law Clinic; and the American Indian Governance and Policy Institute. He’ll address tribal co-management and co-stewardship of public lands and explore real-life examples to resource stewardship and tribal sovereignty. Is the fishpond Waters of the United States? After decades of uncertainty, “waters of the United States” under the Clean Water Act are defined by Sacket v. EPA (2023). We’ll discuss the deci sion’s impact nationally and applica tion of the Court’s 2020 Maui deci sion in National Pollution Discharge Elimination System cases in Montana. You’ll hear about the latest Constitutional developments relating to Montanans’ right to a clean and health ful environment, from updates on the youth constitutional climate case, Held v. Montana, currently on appeal before the Montana Supreme Court, to a chal lenge to the Yellowstone Generating Station, also pending before the Court. The Natural Resource Section will hold its annual meeting and election of officers. Positions are open, so you can join the leadership and direction of this critical group, watching over laws and policy of Montana’s environment. R andall A. Snyder, the founder of Snyder, Beaudry & Cook (Bigfork), is the Liason for the Natural Resources Law Section.

The NREEL Section

The Preamble to the Montana Constitution acknowledges the grandeur of our mountains, the vastness of our rolling plains, and the desire to improve the quality of our lives. Montana un doubtedly owes much of its title as “the last best place” to its people and natural resources. From the world-famous Held trial to joint tribal-federal management of public lands to energy policy, to Clean Water Act litigation, Montana truly is the epicenter of tradition and change. Join the Natural Resources, Energy, and Environmental Law section of the state bar for its annual CLE to discuss these topics and more this September 27, 2024 at the Alexander Blewett III School of Law. This year’s presentation offers broad topics and updates for all practitioners. Supreme Court Justice Laurie McKinnon (or another justice) begins with an update on state and federal legislation and litigation. She may be joined by Al Blewitt Law Professor Michelle Bryan, who grew up farming and ranching, as a UM Law student, edited the Montana Law Review and was a policy special ist for the Montana Water Center in Bozeman. Curious about how Tribal and Montana environment intersect? We welcome Al Blewitt law professor

2024

JUNE-JULY 2024

7

WWW.MONTANABAR.ORG

8

WWW.MONTANABAR.ORG

MONTANA LAWYER

JURY ECONOMICS

Escaping “Lawyer Brain” in Jury Presentations THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D

We all know law school, the prerequisite for becoming a trial lawyer, is a consider able commitment of time and money. It is also a commitment to see and think about the world in a different way. Law students commit to learning an entirely new frame work for evaluating things that happen in the world as well as unique ways to write and talk about that framework, adopting unusual terms such as “opine,” “exculpa tory,” and “malfeasance,” words the average person may never hear in their lifetime. Indeed, to go to law school to become a lawyer is to embark on a journey to a new world. It is not unlike moving to a new country to learn a new language, culture, and rules of society. This training serves lawyers well. It gives them the tools to manage the litigation process for their clients, arming them with all the right words and phrases to effec tively argue at a hearing before the court or in a written filing. It gives them what we call “lawyer brain,” which is essential for the job. But then there is that 5%-10% of the time that lawsuits make it all the way to trial. There, everyday people who know little to nothing about law school, who do not understand “lawyer brain,” become the critical audience lawyers must communicate with and persuade to vote in favor of their client in the deliberation room. Suddenly, what has worked for lawyers all their profes sional lives becomes a barrier to achieving what their client needs because they are stuck speaking a language that few if any jurors understand or can relate to. In this month’s column, we want to talk about breaking out of “lawyer brain” and developing a communication style that resonates with jurors, one that is both

persuasive and engaging. It is often referred to as a “folksy” style, but in our combined 40+ years studying juries, the most effective communication style that we have seen and studied relies on a particular set of skills. As with any skillset, it takes time and practice to hone. Here are the common habits of the best and most effective folksy attorneys we have come across. 1. They speak in stories and have a conversation with the jury rather than lec ture them or tell them what to think. Jurors don’t want to be lectured or told what to think. The best courtroom litigators we have seen feel like they are talking with you, not at you. Their style is conversational, like a neighbor or friend telling you about something interesting going on at work, and like that neighbor or friend, they mostly tell stories. One common example relates to is sues where lawyers have to address errone ous but common beliefs that jurors might hold. Many attorneys might be tempted to tell jurors why their beliefs might be wrong and educate them, which creates a hierar chy of the “smart lawyer” above the “dumb jurors.” Folksy litigators tell their own story

of discovery, revealing how they learned the key issues in the case and how what they had assumed or initially believed turned out to be wrong. This fundamentally changes the dynamic. The folksy attorney is not tell ing jurors they are wrong. Instead, they are acknowledging that they got it wrong and telling the story of how they learned from their misbeliefs, educating jurors along the way. 2 . They speak in understandable language and relate to jurors. Many attor neys might describe their expert by saying something like, “We retained Dr. Smith in this case, and he has opined that…” Folksy litigators avoid this kind of technical speak, instead saying something like, “We sat down and talked to Dr. Smith and here’s what he thinks.” This might seem like a silly distinction but when lawyers speak in language that is uncommon or abstract to jurors, it widens the gap between speaker and audience. It makes it difficult for jurors to identify with the attorney which decreas es credibility, likability, relatability, and consequently, persuasiveness. 3 . They give jurors personal tidbits

JUNE-JULY 2024

9

WWW.MONTANABAR.ORG

about themselves that establish char acter. Whether they like it or not, law yers are characters in the story of their trials. The only question is whether they are likable or unlikeable charac ters. As part of their storytelling style, folksy litigators reveal tidbits about themselves here and there. In voir dire, they might quickly reference how they have two daughters and how they are always disagreeing on some basic issue. In direct examination of an expert, they might quickly reference some common experience they have had to help the expert build on that anecdote in their efforts to explain a complex subject. The key to this strategy is whether its goal is genuine or artificial. If the goal is an artificial attempt to make yourself a three dimensional human, it often feels disingenuous and falls flat. As soon as you make it a genuine disclosure to encourage interest and reciprocation among your juror audience, you in crease your chances jurors will see you as a three-dimensional human being 4 . They throw in random details that are memorable but not essential to the legal issue. The best stories are the ones that incorporate interesting and memorable details, even though those details may not be essential to the overall storyline. Instead, these details help the audience better visual ize the story being told. Folksy lawyers do the same. They throw in random details that improve the story even though they may have no effect on the legal argument. We once watched an attorney, who was trying to shift the critical focus to a particular individual in the case, repetitively refer to the blue suit this individual was wearing at a key moment in the case. The fact that the individual was wearing a blue suit had no bearing on the legal issue, but it made it a lot easier for jurors to visualize that moment, which in turn, made that key moment a lot more memorable for jurors. Folksy lawyers grab onto these random details and repeat them over and over again. They help put jurors in the place where the action takes place, and that helps them experience the story and engage

with it more directly, breaking down the barrier of lawyer and audience and creating a common experience. 5 . They focus jurors on what does and does not make sense in the big picture. Folksy litigators tend to care more about “what makes sense” than what the evidence actually proves. They know what makes sense is more compelling to jurors than what the evi dence shows if the two are in conflict. Even more important, the “what makes sense” framework simplifies issues by giving jurors an easy way to evaluate them by applying their own common sense and experiences. It also helps to bridge evidentiary gaps and encour age jurors to fill incomplete stories with common sense narratives that can help them see the case from your perspective. 6 . They tell jurors what they are doing. Folksy lawyers are fantastic at providing jurors constant roadmaps for what they are doing, which ensures jurors are always on the same page. They do not leave jurors behind. They take them by the hand and walk them through the boring and the complex. They take jurors on a journey telling them along the way why they’re turn ing here and there. Specific examples include a preview of the main points at the top of the opening statement, and questions in direct and cross examina tion that are more intended to guide jurors than they are to elicit answers from the witnesses. In opening state ments and even in closing arguments, it can mean very literally telling the jurors, “Now I’ve been thinking about this issue and how to better explain what happened, and here’s where I ended up…” 7 . They acknowledge the weak nesses of their case. Research has repeatedly shown that acknowledging weaknesses in arguments (or strengths in the opponent’s arguments) en hances the speaker’s credibility as well as the persuasiveness of the message. Yet, we probably don’t even need to cite research here. Most people intui tively understand that the individual who can acknowledge weaknesses in their arguments (or strengths in the

arguments of their opponents) comes across as more reasonable, which ultimately makes them more influen tial. Folksy attorneys are not afraid to make these concessions because they are confident in the overall strength of their case theory. They understand that the goal is to win the war, not every individual battle. 8 . They are helpful and gracious. The world is full of jerks and perhaps even more important, the world is full of people who are fed up with jerks and ready to send them a message. The data is clear. Jurors are angry and dis trustful. They are tired of unwarranted rudeness and aggressiveness, and they will hold it against lawyers who engage in it. Too often, we take for granted the statement that “lawyers represent their clients.” In trial, they literally do. A lawyer’s personality or actions are symbolic of the character of their cli ent. A lawyer who is uncaring conveys to the jury that their client is uncaring. Folksy lawyers recognize this and work hard to be helpful and gracious. They avoid snark and are kind to others in the courtroom. When issues arise in the court, they offer to help. We recently watched an attorney on the other side of a case struggle with their projector during opening statement. When they paused to try to fix it, our attorney offered to let them use ours instead. This was just one example of the friendliness conveyed throughout trial and it makes a difference in how jurors evaluate the parties. Each and every one of these skills can be achieved without a genuine motive of connecting with jurors as human beings, but when you are genuinely motivated by curiosity, connection, and kindness, your folksy skills will develop and land much more easily, especially when you’re working hard to escape the “lawyer brain” your law school so effectively trained into you. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.

10 MONTANA LAWYER

WWW.MONTANABAR.ORG

NREEL CLE at the University of Montana School of Law

6 CLE Credits Pending

September 27, 2024

PANELS Federal/State Caselaw Updates Ethics: AI in Legal Practice Clean Water Act Updates Tribal Co-Management ofPublic Lands Energy Sector Updates Constitutional Litigation Updates Natural R esources, Energy, and Environmental Law

In-person and virtual attendance Open to the public Lunch Provided *Working Section Meeting During Lunch* Special thanks to the Environmental Law Group at the University ofMontana School ofLaw

h �UNIVERSITY OF ALEXANDERBLEWETIIII I MONTANA SCHOOLOFLAW

JUNE-JULY 2024

11

WWW.MONTANABAR.ORG

PRO BONO CHRONICLES Pro Bono Policies and Best Practices MORGAN DAKE

There is a long list of reasons that providing pro bono services is a chal lenge. Lawyers face constant demands from their billable practice, other demands in the professional context as well as in their personal lives, not to mention the ever-pressing debt associ ated with the cost of law school. It is sometimes hard to want to add pro bono matters to your case load. Experienced attorneys encourage pro bono any way, but why? Maybe it is as Joni Madraiwiwi has said: “This privileged position (lawyer) obliges you to remember that most of the popula tion cannot afford your services or fees. As a consequence they are denied access to justice. It therefore behooves the legal profession to consider practi cal ways of alleviating this unaccept able state of affairs.” But if Rule 6.1 and other ethical considerations are not your reason, consider business market ing, skill development, and goodwill with other practitioners, the courts, and the community. Whatever your reasons for doing pro bono, developing a pro bono policy is a great way to build pro bono into your practice in a sustainable way. Start with a Pro Bono Policy A policy promotes a common un derstanding of pro bono publico among lawyers and staff and demonstrates commitment and expectations. A policy establishes a clear understanding of the process for accepting and completing pro bono cases and it fulfills your abil ity to meet the provisions of Rule 6.1 of the Montana Rules of Professional Conduct. Most importantly, it is a form of risk management, as you may take on legal representation in areas outside of your general practice. Developing a pro bono policy should start with questions like: What is the firm’s commitment? How does the firm define pro bono? Who is eligible to receive pro bono services? What are the firm’s expectations regarding lawyers providing pro bono services? What will be the firm’s process for tak ing on a pro bono case? How will the

firm encourage and recognize pro bono service by its lawyers? Answering these questions will help you decide which pro bono cases to take and when. Start your Policy at the Intake Process Growing an effective intake process saves valuable time. Given the unique circumstances often associated with pro bono cases, focusing on an effective in take process minimizes the disclosure of private and even traumatic information, starts the process of developing profes sional rapport with prospective clients, and helps you to identify parties who are ready and able to navigate the process without the need for counsel. All of this helps to ensure your contributions are paired with the highest need situations. An intake process should allow easy and quick referrals for other resources like the State Law Library, Montana’s Judicial Branch Forms, the Court Help Program Self-Help Law Centers, lo cal legal clinics, and Montana Legal Services. You can save your time and capacity to allocate your own resources to those cases with the highest level of legal need by quickly and easily provid ing resources like these where the intake process indicates that would be effective for a particular case. Assess Client Readiness It is important to consider the prospective clients’ priorities as well as other practical remedies available to the prospective client. Do not be afraid to send the prospective client away with

Morgan Dake serves as Crowley Fleck PLLP’s Senior Pro Bono Counsel. In this role, Morgan leads the firm’s pro bono program across its 11 offices. She works closely with the firm’s pro bono practice group to encourage and facilitate pro bono participa tion throughout the firm and to manage the firm’s relationship with legal aid providers and non profit organizations. In addition, Morgan regularly represents individual pro bono clients on a wide variety of legal issues. Prior to assuming her current role, Morgan worked as a senior deputy county attorney for Montana’s most-populated county, where she prosecuted domestic violence and sex crimes. That work provided her valuable insight in serving survivors of family violence.

12 MONTANA LAWYER

WWW.MONTANABAR.ORG

Build a Support System

your file and close the case internally. You can always communicate to the cli ent to reach out again for consideration in the future, but to protect your own time and resources, and for risk man agement purposes, communicate the end of your engagement consistent with the terms of your engagement letter. There is extraordinary need for the provision of pro bono services in Montana. While there is no guarantee that any pro bono experience will have any specific impact on you, a good pro bono experience will sustain you for the next endeavor. A pro bono policy is a benefit in almost all practice envi ronments: small firms to large firms, corporate and in-house counsel, as well as the public sector. A clear pro bono policy will create a pathway to integrat ing a positive pro bono practice along your professional road.

tasks and gather as much informa tion about the parties and cases before engaging. Properly vetting prospective clients will help you provide realistic expectations of the process and fully vet your ability or inability to help the client pro bono. Define the Scope Early Defining the scope of services with a well-crafted engagement agreement and a clear statement about when the engagement will end starts the process of developing professional rapport with prospective clients and protects your time. This is an important part of risk management. Having a clear scope also assists in flagging for attorneys when a mentor might be needed to help with the representation or to share the work. A clear scope makes the expectations and commitment clear both to the attorney and to the client and can eliminate potential is sues down the road.

Accessing mentors when taking on pro bono matters will help you make the most of your time. Consider whether to bring on co-counsel to provide support when your billable practice demands interfere. Engage community partners to provide the client the community support needed to persevere through the process. The community partners will be there to take up the laboring oar well after your case is closed. In many situations, the resources the client needs are avail able through non-legal community partners, and helping to connect those resources may prevent the clients need for legal representation in the future. Be Prompt in Closing a Pro Bono Case Closing cases as soon as the scope of work has been completed is a very important step in the process. Communicate the completion of your representation with both the client and court. Make any final notes to

We give you the freedom to focus on practicing law. Why Mainstreet?

We Listen. We Care. We Act.

2212 Queen Anne Ave. N. #371 Seattle, WA 98109 Mainstreet Lawyers Insurance 206.583.0877 www.mainstreetlawyersinsurance.com.

In California: DBA Accretive Specialty Insurance Solutions, LLC - License #6010377

JUNE-JULY 2024

13

WWW.MONTANABAR.ORG

You Might Be Secretly Lonely if... MERI ALTHAUSER PRACTICING WELL

About a year ago I made the deci sion to leave law practice and join Montana’s law school as professional staff. For me, law school was a place where I really felt like I belonged, and I felt like my professors really cared about me. Even 10 years after I left these doors, some of my professors

never had before. I read the itemized and illustrative list of bad things dad had done to mom, then the itemized and even more vibrant list of complaints from dad about mom. From my perspective, I could see how many of these items were misunder standings read through the veil of mistrust old grudges. But what I realized in that

still checked up on me or offered me opportunities in practice. So, for sev eral years I toyed with the idea of returning to the school in some capacity and applied for the job of Director of Admissions. When I was offered a position, I was still truly on the fence about whether to wind down the practice

moment was not how sad this family’s situa tion was, but how alone I felt in being the only one trying to solve the Rubik’s cube of their issues with one another. For probably well over 100 families, the pressure was all on me to try to de-escalate the drama, set aside emotions, find

After over a decade of practicing family law and mediation in Missoula, Meri Althauser stepped into the role of Admissions Director with the Alexander Blewett III School of Law in June 2023. Her approach to law focuses on collabora tion and solution-finding for her clients and their families, and now for mentoring stu dents. She also offers consulting services in workplace well ness, with a certification as a Workplace Wellness Specialist through the National Wellness Institute and as a Resilience and Thriving Facilitator through Organizational Wellness and Learning Systems.

I worked so hard to create. Business was going well, I was proud of my reputation, I felt like I was making a difference for people, and I had total control over my schedule. This was a lot to give up! I took a day to decide and went back to business-as usual preparing for a parenting plan settlement conference that was set for the next day. As I started to read the materials given to me, the stories of this broken family started to sink in and the tears started to roll as they

the middle ground, brainstorm solutions, predict pitfalls, and puzzle things out. So, when I was faced with the option to join a team, where I wouldn’t be all alone, the reality of my lonely solo practice was illu minated. I never even realized how lonely I felt until alone was not the only option. How could I not know I was lonely? Well, I don’t really know actually. I even had daily meetups with friends in my building, talked to many attorneys to vent or ask questions, genuinely liked all of my clients, worked with a team at times, and

James Reavis is available for attorney referrals for appeals to the Montana Supreme Court to handle your client’s criminal or civil case. Reavis has resolved over 130 appeals. He is a respected and well-known advocate before the Court. Reavis is available to attorneys for consultation, brief writing assistance, or taking a lead role in your client’s appellate strategy. Attorneys are invited to call 406-433-5511 or email james@nkbattorneys.com . APPELLATE ADVOCACY

301 N. 27TH STREET, #100, BILLINGS, MT 59101 • 406-433-5511

14 MONTANA LAWYER

WWW.MONTANABAR.ORG

exceled at the problem-solving process. But I must have been coping with it somehow- because it surely became real, and I now realize there were some things I would have done differently if I was running a solo practice again. So, that leads me to this month’s exercise: You might be secretly lonely if: 1. You can’t answer the question “how are you doing?” You might be se cretly lonely if: when someone asks you how you’re doing, your brain says “well, it’s too complicated to tell you, you wouldn’t understand, I don’t even know where to start, I’m not allowed to tell you anyway, and you don’t really want to know what I’ve seen today” and your mouth says “Fine! How are you?” Relief hits when they talk about themselves so you don’t have to. You may also be secretly lonely if the answer is a flood gate of verbal diarrhea because there’s no simple way to answer the question. To me, both of these opposites are a sign that you feel like you have no one to talk to, so maybe it’s time to find someone! Consider a practicing friend who’s in the same boat or a counselor. 2. You carry too many people’s secrets and problems all alone. Even

having staff or other attorneys in the office who you can debrief with or talk about how it feels to hold other people’s stories is better than keeping them all to yourself. In the solo family law context, try working with a neutral financial professional, a co-parenting coach, divorce coach, or other profes sional who can help carry the prob lem-solving load. If you’re all alone in keeping this information, acknowledge what a big deal that is, and be sure to give yourself some sort of outlet for dealing with that pressure. Perhaps make a mental picture of your client’s stories getting neatly tucked away each night in a file drawer so they don’t bother you at night. Goodnight, files! 3. You feel as uncertain about your legal arguments as you did when you were just starting. You might be secretly lonely if you have no one to tell you you’re on the right track or to offer you pep talks when you need them! It’s unlikely the judge (or maybe even your client) is going to offer posi tive reinforcement that you’re doing good legal work. It can be isolating when you have to conjure all your own courage! Seek out attorneys who you

trust to bounce ideas off of and who you feel don’t judge you for checking in to make sure you’re on the right track. You can bet they might feel the same way and will reach out when they need a confidence boost for themselves! 4. Most all of your relation ships are one-way. You might be secretly lonely if everyone in your life comes to you for advice, and you are the responsible one. You might see nice people all day long in your prac tice, but clients aren’t in a two-way relationship with you. They’re not going to make you less lonely even if they’re around all the time! Make sure you have people in your life where support runs both directions. If I had to try a solo again, I think it would be possible to preserve the autonomy while chilling the isola tion. I would try co-mediating more regularly, office sharing, or even starting a small group of solos or managers in similar situations so we could support one another. Although it took me quitting to realize it, hopefully this will help someone in the same boat!

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

JUNE-JULY 2024

15

WWW.MONTANABAR.ORG

16 MONTANA LAWYER

WWW.MONTANABAR.ORG

Visit the updated home for Administrative Rules: rules.mt.gov!

The Montana Secretary of State is excited to announce a brand new rules website that will serve as the digital source of truth for regulations. Powered by Esper, this modern, user-friendly, mobile responsive interface to browse the Administrative Rules of Montana (ARM) and the Montana Administrative Register (MAR).

On the new and improved rules.mt.gov, all Montanans will have access to the ARM, MAR, Emergency Rules, Historical Information, and Rulemaking Resources. Montana Secretary of State’s powerful search platform will allow for the ability to quickly and efficiently search the ARM and MAR for regulations that pertain to you.

View references, download rules, and browse to improve your research!

Visit today: rules.mt.gov

JUNE-JULY 2024

17

WWW.MONTANABAR.ORG

RISK MANAGEMENT Why Solo Attorneys Should Never View Succession Planning as Optional

everyone was counting on it being. Second, Rule 1.3 of the ABA Model Rules of Professional Conduct address es diligence. The Rule reads, “ A lawyer shall act with reasonable diligence and promptness in representing a client .” This means attorneys are to act with commitment, dedication, and where appropriate even zealous advocacy, workloads are to be reasonable so that all matters can be resolved compe tently, and that procrastination is an enemy that is to be avoided at all costs. Yet an attorney’s obligations don’t end there. There is an obligation to prevent neglect of a client matter post attor ney death or disability. Comment 5 to this rule goes on to state “ To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine if there is a need for immedi ate protective action. ” Given all that I have seen and experienced as a risk manager over the years, I personally have trouble coming up with a set of circumstances where I would feel comfortable saying no such plan would be required for a solo. The only question for me is how to get there. Okay, so what do I need to do to cre ate a succession plan? The most important detail to take care of when planning for your death or disability is designating a successor. This attorney will need to agree to be responsible for administering the wind ing down of your practice. Again, it’s important to remember that the pur pose here is not to try to find someone who is willing to come in and take over your entire practice. It’s about finding someone willing to step in and take the lead in winding down your practice. Keep this distinction in mind because it can help when it comes to trying to find

MARK BASSINGTHWAIGHTE, ESQ. The two most common excuses I’ve heard over the years for not having a succession plan in place are these. It’s either “my plan is to die at my desk,” which isn’t a plan at all, or “I just haven’t been able to find the time,” which almost always means they know it should be done but it’s never going to happen. If either excuse rings true for you, now’s the time to start for two reasons. First, if you happen to be a solo, you really don’t want to leave the headache of having to wind up the practice and trying to figure out what to do with all your closed files to an unsuspecting non-lawyer spouse. In fact, to this day I still get the occa sional call from someone who finds themselves in this very situation. One commonality these callers all have is significant distress and anger over being left with a mess they are ill prepared to handle, and which unfortunately can all too easily lead to unintended consequences. Here's one example of how the failure to plan can end badly. Most at torneys know full well that client prop erty shouldn’t be destroyed prema turely or haphazardly; but of course, non-lawyer spouses often haven’t a clue. And also understand that even if they did, non-lawyer spouses aren’t bound by the rules of professional conduct. The end result is sometimes all closed files are promptly destroyed because the grieving spouse doesn’t know what else to do. Then, after do ing so, the spouse comes to learn that one of those destroyed files is needed to properly defend against a claim of malpractice. Making matters worse, the spouse also eventually learns there is no insurance coverage in place because she didn’t know that at the time of passing, she had to contact the malpractice carrier in order to pur chase tail coverage. The unintended consequence is the deceased attorney’s estate may end up not being what

Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits, pre sented over 400 continuing legal education seminars throughout the United States, and written ex tensively on risk manage ment, ethics, and technol ogy. He is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School

18 MONTANA LAWYER

WWW.MONTANABAR.ORG

someone willing to take on this impor tant responsibility. That said, should the unexpected ever happen, this person will need to be able to make rapid decisions and, for a brief period of time, take on some of the responsibilities of an additional practice. This means your designated attorney should be someone who is competent, experienced, and displays the utmost professionalism because this person must be able to be expeditious about notifying clients, conducting file review, taking any necessary protective actions, and transitioning files to other attorneys. Your designated attorney should also be someone who is quite familiar with your areas of practice and not likely to have a significant number of conflict concerns arise should they ever need to step in. An additional benefit of designating a successor attorney (and consider mak ing this a reciprocal designation if both of you are solos) is that this individual can also act as your backup attorney thereby allowing you to take extended absences from your office

designated attorney quickly come up to speed on how you run your practice. This is also just one of a number of reasons why it is so important to keep critical systems such as the calendar and conflict system current at all times. Your designated attorney will need to review all client files as quickly as possible in order to determine if any im mediate protective action is necessary. Given this, never get lackadaisical with your file documentation process. The documentation in all files should always be thorough and current. Missteps can all too easily occur as a result of poorly documented files. Finally, write a letter for the desig nated attorney that details duties for all employees; includes login instruc tions to all necessary computers and systems; provides financial details such as location and account numbers for all bank accounts, particularly client trust accounts; and contact information for all staff and principal vendors such as banks, insurance companies, utility companies, and the landlord. In short

think about what you would need to know if you were the person coming in to wind down your practice and capture that intellectual capital in a way that will be useful to the designated attorney. Additional assistance in developing a plan for your death or disability can be found in a handbook published by the Oregon State Bar Professional Liability Fund. This valuable free resource is available online and may also prove quite useful to your designated attorney should his or her services ever be need ed. In the handbook Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death you will find items such as a checklist for closing another attorney’s office, a sample notice of designated as sisting attorney, sample letters to clients, a sample authorization for the transfer of a client file, and much more. Also, be aware that a number of resources based upon the materials in this Oregon guide are also available on the websites of a number of other state bars.

for work, pleasure, or health reasons. Also, don’t forget to make sure appropriate employees are made aware of who your designated attorney is and how to contact this individual should this ever become necessary. Once the successor des ignation process is complete, there are a few other tasks worth doing. Consider pro viding notice of the existence of and reason for a designated attorney in your fee agree ments so clients are aware of the steps you have taken to protect their interests in the event of an emergency. Develop and maintain an office procedures manual that discusses your calendaring system, conflict system, active file list, open and closed file systems, accounting system, and any other key system. This resource will prove valuable in helping your

JUNE-JULY 2024

19

WWW.MONTANABAR.ORG