MontanaLawyer

September 2015 | Vol. 40, No. 10

State Bar of

Montana

Also in this edition:> Tribute to 20 Lawyers with 50 Years Practice

in the Montana Bar> Life-changing legislation for disabled people

> Special health care provisions for Indians in Obamacare need protection

> What you need to know about new reporting requirements for Affordable Care Act

Working for JusticeNeill wins Karla M. Gray Equal Justice AwardWandler wins Neil Haight Pro Bono Award

Page 2 September 2015

The official magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. (406) 442-7660; Fax (406) 442-7763.E-mail: jmenden@montanabar.org

State Bar Officers

President Mark D. Parker, Billings

President-Elect Matthew Thiel, Missoula

Secretary-Treasurer Bruce M. Spencer, Helena

Immediate Past President Randall Snyder, Bigfork

Chair of the Board Leslie Halligan, Missoula

Board of TrusteesMarybeth Sampsel, KalispellElizabeth Brennan, MissoulaLiesel Shoquist, MissoulaTammy Wyatt-Shaw, MissoulaEllen Donohue, AnacondaJason Holden, Great FallsShari Gianarelli, ConradKent Sipe, RoundupLuke Berger, HelenaKate Ellis, HelenaJ. Stuart Segrest, HelenaJane Mersen, BozemanLynda White, BozemanJuli Pierce, BillingsRoss McLinden, BillingsEric Nord, Billings

ABA DelegatesDamon L. Gannett, Billings Shane Vannatta, Missoula

Montana Lawyer StaffPublisher | Christopher L. Manos Editor | Joe Menden(406) 447-2200; fax: 442-7763 e-mail: jmenden@montanabar.org

Subscriptions are a benefit of State Bar membership.

Advertising rates are available upon request. Statements and expressions of opinion appearing herein are those of the advertisers or authors and do not neces-sarily reflect the views of the State Bar of Montana.

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

1Montana Lawyer

INDEX September 2015

Feature StoriesNeil Haight Pro Bono Award: Professor Hillary Wandler ............. 10

Karla M. Gray Equal Justice Award: Hon. Kenneth R. Neill .......... 12

Class of Distinction: 50-Year Pin Winners ......................................... 14

‘Obamacare’ provisions for Indians Need Protection .................. 18

ACA Reporting Rules: What You Need to Know ............................. 20

Montana’s Area Agencies on Aging ................................................... 21

Meeting Your Duty to Communicat ................................................... 22

Life-Changing Legislation for People with Disabilities ................ 23

Regular FeaturesMember News ...............................................................................................3

State Bar News ...............................................................................................6

CLE .....................................................................................................................8

Court orders ...................................................................................................9

Obituaries ..................................................................................................... 28

Job Postings/Classifieds .......................................................................... 30

Page 3www.montanabar.org

President’s Message | President Mark D. Parker

It’s a wrap on bar president’s term

“Montana is punching way

above its weight on the national

scene. ... Find a way to get

involved if you have any

inclination whatsoever.”

Mark D. Parker is the outgoing president of

the State Bar of Montana. He has practiced in

Billings for 34 years, the last 28 in a firm he

founded, Parker, Heitz & Cosgrove. He will pass

the gavel as bar president to Matt Thiel at

the Annual Meeting in Missoula Sept. 9-11

It’s a wrap. Time to roll the credits – which usually empties the theater. Time to thank everyone – which bores the audience to death until they strike up the band. Time to reflect and pontificate as if I am the only one who has ever served as president of the State Bar, and the only one to make global, sweeping and stunning observations. Those of you who have become barn sour listening to those who have elbowed their way on stage, or in print, and abused the privilege of being granted a few words, I can make only a single promise – you ain’t seen nothing yet. Here I go. I will be quick.

1. Thank YouAs every President before me, I am grateful

to my family, professional colleagues, the State Bar staff and fellow officers and trustees for their support. I cannot name them all.

However, a few incidental thank yous are in order. First, to Bill Lamdin. Throughout this year, Bill has made a point to thank ME for my Bar service, as have many others. I know he is sincere, because when he has in the past been not so thankful about my behavior, he has sincerely let me know that also. Thanks, Bob Carlson, for setting it up so I could meet ABA President Paulette Brown and persuade her to come to the State Bar Convention. Thanks to Paulette Brown for agreeing to come.

Mostly, thanks to the State Bar members for paying their dues so I could do my work with-out digging too deeply into my pocket.

2. What I learned, and need to pass onThe challenges facing the legal profession are

coming from every direction, and we will meet them all, but not without reflection, change and hard work. In the legislative session we had only a handful of complaints about our lobbying efforts, equally divided from what we traditionally consider as the right wing of the political spectrum and the left wing. Although a bit intemperate, they were sincere and worthy of digesting for next time. They all expressed real concern about the State Bar injecting itself in any political matter. We had a bigger number of members express frustration with our lack of involvement on some legislative matters. What one quickly learns is that there are no legal restraints on the punches we take, but many

restraints on the punches we can throw.Legal services for the vast middle economic

layer of Americans is going to be delivered, and is being delivered, electronically without regard to a wide variety of Rules of Professional Conduct limiting fee sharing with non-lawyers, confidentiality, proper licensing in the venue, checking for conflicts, etc. Given the market forces; the lack of money and political will to fight it; and quite possibly FTC protection, it cannot be stopped. It is going to arrive as UBER, Google, or Apple – “In Without Knockin.’”

3. Montanans have no natural enemies, so the State Bar

is a good place to get involvedIn law school at the University of San Diego,

there were a good deal of odd factions. The East Coast vs. the West Coast; Northern California v. Southern California; even Southern California had a discernable schism between the San Diego students and Los Angeles students. Some reli-gious groups would subdivide between degrees of orthodoxy. These petty factions still exist, I regret to say. Montanans are like the dingo dog, we have no natural enemies. Thus, the food chain is easier to climb.

Montana is punching way above its weight on the national scene. Jock Schulte is on the American Bar Association Board of Governors. Bob Carlson is, as we know, ascending in the ranks of the ABA. Greg Murphy is the chair elect of the Council of Section of Legal Education and Admissions to the Bar of the American Bar Association. Amy Sings in the Timber has been recently appointed to the Executive Director’s position at the Chicago Bar Foundation. Judge Sid Thomas is now the Chief Judge of the Ninth Circuit. Find a way to get involved if you have any inclination whatsoever.

The invitation to get involved is extended to the authors of the letters who criticized our lobbying efforts and all those along the various political axes. As the great Italian philosopher Gene Jarussi once said about getting people involved, “it does not matter if they think like me, it only matters that they think.”

Thanks again

— Mark D. Parker

Page 4 September 2015

Member and Montana News

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Warren joins Silverman Law Office in Helena

Silverman Law Office PLLC has announced that Kristina Warren has joined the firm as an associate attorney. Warren will practice in the areas of tax controversies, estate planning, busi-ness law, real estate transactions, and liquor/gambling law.

Warren graduated cum laude from Seattle University School of law in 2013 and earned her master’s in tax law from the University of Washington in 2014. During law school, she worked as a student attorney at the University of Washington Low Income Taxpayer Clinic and con-tinues to represent clients as a volunteer attorney through the clinic.

Warren has extensive business experience as a controller of several companies, as well as being an entrepreneur herself. She is a member of the State Bars of Washington, Montana and North Dakota and is admitted to practice before the U.S. Tax Court. She can be reached at 406-449-4829 or kristina@mt-taxlaw.com.

Brooke joins Smith & Stephens in Missoula

Smith & Stephens, PC. Law Offices in Missoula, announces that Nicholas Brooke has joined the firm as a new associate. Brooke graduated from University of Montana School of Law in 2013.

While in law school Brooke was a member of multiple moot court teams and helped coach the university’s debate team part

time. Nick knew he wanted to work in the criminal defense arena and tailored his law school education by completing a wide array of criminal law courses, including white-collar crime, domestic violence, advanced criminal procedure, and advanced constitutional law. He was also a member of the Federal Defenders Clinic during his third year. He spent his first year in practice clerking for Montana Supreme Court Justice Michael Wheat.

Brooke attended Carroll College, where he obtained a B.A. in international relations and political science, and minored in philosophy. While in college, he was president of the debate team, and he was selected as an intern for the Cato Institute, a libertarian think tank in Washington, D.C.

Snedigar joins Billings law firm

Patten, Peterman, Bekkedahl & Green PLLC has announced that Daniel L. Snedigar has joined the firm.

Snedigar grew up in Billings and graduated from Billings Senior High School in 1994. He re-ceived his Bachelor of Arts in political science from the University of Montana in 1999 and earned his Juris Doctorate from Chicago-Kent College of Law

Warren

Brooke

Snedigar

Page 5www.montanabar.org

Member and Montana Newsin 2007. He is admitted to practice in Montana and Illinois.

Prior to joining the firm, Snedigar worked as a staff attorney for the State of Montana Public Defender’s Office; as an associate attorney at Corrette, Black, Carlson & Mickelson in Butte; and as an attorney for various firms in Chicago. His areas of practice include civil litigation, construction law and commercial law.

You can reach Snedigar at Patten, Peterman, Bekkedahl and Green, PLLC, 2817 2nd Ave. North, Suite 300, Billings, MT 59101; dsnedigar@ppbglaw.com; or 406-252-8500.

Watson named to Best Lawyer’s in America list

Rebecca Watson of the Denver office of Welborn Sullivan Meck & Tooley was listed in the 2016 edition of The Best Lawyers in America. Watson was selected for inclusion in the fields of Energy Law and Natural Resources Law.

In all, seven lawyers from Welborn Sullivan Meck & Tooley made the list.

Sime to manage state sage grouse program

Carolyn Sime, a wildlife biologist who previously led the state’s wolf management program, has been hired as the Montana Sage Grouse Habitat Conservation Program manager.

According to an article in the Billings Gazette, Sime will start Sept. 8. She had a 20-year career with Montana Fish, Wildlife and Parks as a wildlife biologist where her work included devel-opment of Montana’s wolf management program.

Sime left FWP in 2011 to attend the University of Montana School of Law. She graduated in 2014 and is a law clerk for Sam Haddon, U.S. District Court Judge in Helena.

Hall & Evans promotes Hensel to special counsel

Hall & Evans, LLC has announced that Craig Hensel has recently been promoted to Special Counsel.

Hensel joined the firm in 2014 and his practice focuses on civil litigation with an emphasis on transportation defense.

Prior to joining Hall & Evans, Hensel was a deputy city attorney and practiced municipal law for 17 years. He received his JD from University of Montana School of Law and his BA from Montana State University where he majored in political science.

Hall & Evans is a Rocky Mountain regional law firm estab-lished in 1932 which focuses on tort and commercial litiga-tion. The firm has offices in Denver, Billings and Cheyenne, Wyoming.

WatsonHensel

Page 6 September 2015

State Bar News

Utah State Bar names Yengich Lawyer of Year

Ronald J. Yengich has been named Lawyer of the Year by the Utah State Bar.

Yengich is a member of the State Bar of Montana in addition to the Utah State Bar.

The award is the most prestigious award given to an attorney by the Utah State Bar. It is a lifetime achievement award that recogniz-

es one lawyer per year who has reached the epitome of excellence in the legal profession over his or her career.

According to Utah State Bar Commissioner Susanne Gustin, Yengich has practiced criminal defense in Utah for 40 years and has represented some of the most high-profile clients in Utah as well as the nation.Clients he has successfully represented include

the heavily reported murder cases of James Bottarini, Sam Kastanis, Mark Hoffman, Michael DeCorso, and Joseph Lovato.

He has also worked on many high-profile pro bono cases.In addition to his legal sense, Yengich is a prolific writer. He has

been a columnist for the Private Eye newspaper, The Salt Lake City Observer, The Catalyst, the Bench and Bar Journal and many oth-ers. He has written articles on legal matters in publications includ-ing the Journal of Contemporary Law, Criminal Defense Magazine, and Utah Beat.

Career honors he has received include: Best Columnist, Private Eye Newspaper (1992-93 and 1993-94); Gold Special Jury Award, Worldwide Film Festival in Houston (1999); and Best Criminal

Defense Lawyer from Utah Business (2003). He has served as President of the Utah Criminal Lawyers Association, two terms as President of the Utah Bar Association, and Board Member for the Utah Criminal Lawyers Association.

He also has had several teaching positions over the years, includ-ing being an adjunct professor at Westminster College teaching in the Paralegal Program, Criminal Law and Procedure and Legal Writing.

Gov names four to public defender task force

Gov. Steve Bullock in August announced four appointments to the Task Force on State Public Defender Operations. They are:n Mike Eakin, Billings. Eakin is an attorney experienced in the

federal Indian Child Welfare Act advocating on behalf of racial minorities in Montana. Eakin is an attorney with Montana Legal Services, and an Adjunct Professor at Chief Dull Knife College.n Jason Holden, Great Falls. Holden is an attorney with experi-

ence in the criminal defense of misdemeanor and felony offenses in Montana. He is a trial attorney and appellate advocate with experi-ence in criminal defense. He is also a member of the State Bar’s Board of Trustees.n Wendy Holton, Helena. Qualification: Group facilitator.

Holton is an attorney in private practice.n Juli Pierce, Billings. Pierce is an attorney with experience in

the prosecution of misdemeanor and felony offenses in Montana. Pierce is the Senior Deputy Yellowstone County Attorney. She is also a member of the State Bar’s Board of Trustees.

Yengich

Lawyer Assistance Program offers regular support group meetings across the state

The Lawyers Assistance Program has support groups that meet regularly in locations around the state.

The groups are open to all members of the legal profession, including lawyers, judges, paralegals, law students and faculty. They provide a safe space to share issues that affect or may af-fect our ability to fulfill our responsibilities to our clients, our colleagues and our profession.

The meetings are confidential and anonymous. Locations and times of meetings are as follows:n Billings: Third Thursday of each month in the conference

room of the GW Building, at the intersection of Third Avenue North and North Broadway. Social gathering is at noon,

followed by the meeting at 12:15 p.m.n Great Falls: Last Wednesday of each month, conference

room at 1314 Central Ave. Meeting begins at 5:30 p.m.n Helena: Last Wednesday of each month, Power Block, 7

W. Sixth Ave., fourth floor conference room. Social gathering is at noon, followed by the meeting at 12:15 p.m.n Kalispell: Last Thursday of each month, meeting room

in the basement of the Kalispell City Library, 247 1st Ave. East. Meeting begins at 5:30 p.m.n Missoula: First Wednesday of each month in the Pope

Room of the law school. Meeting begins at 6 p.m.Support groups in Bozeman, Butte and eastern Montana will

be determined at a future date.For additional information, call Mike Larson at

406-660-1181.

406-660-1181Montana’s Lawyers Assistance Program Hotline

Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction .

Page 7www.montanabar.org

MONTANA DEFENSE TRIAL LAWYERS

Annual CLE Seminar

On or Before Sep. 1  After Sep. 1 

 MDTL Member  $260  $325   Nonmember  $345  $410   Paralegal  $175  $215   Claims Personnel  $140  $160   Law School Students  $25  $25   Judiciary/Law Clerks  Complimentary  Complimentary  

Payment must accompany registration  Total Enclosed $________ 

Join now and save! www.mdtl.net Payment Information: “ Visa “ MasterCard  “ Check (made payable to MDTL) 

Cardholder’s Name (please print)_________________________________ 

Account # _________________________________  Exp. Date _________ 

Validation Code _____ Auth. Signature_____________________________ 

Cardholder’s Address __________________________________________ 

City/State/Zip  _______________________________________________  

Registration Policies: The registration fee includes all sessions and course material.  Payment must accompany registration form to receive early registration discount.  Can‐cellations received in writing by September 1 will be subject to a $25 service charge.  No refunds will be made after September 1.  Course materials will be mailed to pre‐paid registrants who were not able to attend the conference.  Registration substitutions may be made at any time without incurring a service charge. 

Fees

2. Registration Form

Two Ways to Register:

1. Easy online registration at www.mdtl.net

or

Name  ________________________________________________ 

Nickname for badge _____________________________________ 

Firm  _________________________________________________ 

Address  ______________________________________________ 

City/State/Zip  _________________________________________ 

Email  ________________________________________________ 

Phone_______________________Cell_______________________ 

 

Send registration form to: MONTANA DEFENSE TRIAL LAWYERS 36 South Last Chance Gulch, Suite A ● Helena, MT  59601 Phone 406.443.1160 ● Fax 406.443.4614 sweingartner@rmsmanagement.com ● www.mdtl.net 

September 25, 2015 | 7 CLE credits requested (INCLUDES 1 HOUR ETHICS) Doubletree by Hilton Missoula Edgewater, Missoula, Montana

A limited block of rooms has been reserved for MDTL program participants. Call 406.542.4611 and ask for the MDTL room block rate. For full schedule and additional information, visit www.mdtl.net. 

Powerful Witness Preparation Dan Small, Esq.

■ Learn the step‐by‐step method to teach your client the basic principles of testifying. ■ Give your client the confidence to exercise the right, the responsibility and the tools to take control of their testimony. ■ Level the playing field where the questioner usually has the advantage. ■ Alert your client to the most common witness mistakes and share practical tips to avoid them. ■ Increase your expertise as an advocate, and give yourself a winning edge in the litigation process. 

Dan Small’s expansive career provides the unique basis for his excellence as a teacher and author. His impressive body of work includes lawyering for the U.S. Department of Justice, work as corporate general counsel for a national healthcare management firm and private practice with both small and large firms.  

“Dan Small’s excellent Preparing Witnesses simplifies the task of convincing clients who are ‘too busy’ just how important preparation is and how it should be done.”   ‐Alan Dershowitz, Professor, Harvard Law School 

 

“Meek” Me at the Marketplace & Let’s Be Reasonable Nancy Fraser Michalski, RN, CPMA What evidence of ‘reasonable’ medical expenses is available in light of Meek v Eighth Judicial District Court, 2015 MT 130, 379 Mont. 150, 349 P.3d 493? Carriers and defense attorneys can more energetically challenge plaintiff’s claims for recovery of excessive medical charges.  Nancy is a nationally recognized expert in medical billing 

and bodily injury litigation support services. She testifies in state and federal court on issues involving the reasonable value of medical care.  As Vice President of Elevate Services, Inc. Nancy strategically leads a range of services that improve outcomes, reduce costs and expedite settlements in bodily injury claims and litigation.   

7:30 am-11:45 am Powerful Witness Preparation Dan Small, Esq.

11:45 am-1:15 pm MDTL Annual Membership Meeting Luncheon Lunch on your own if not attending

1:15-2:15 pm “Meek” Me at the Marketplace & Let’s Be Reasonable Nancy Fraser Michalski, RN,

CPMA

2:30-4:30 pm Powerful Witness Preparation Dan Small, Esq.

Seminar Schedule

Dan Small, Esq.

Nancy Fraser Michalski, RN

Page 8 September 2015

State Bar News

Montana Legal Services Association has proposed a resolu-tion to be voted on at the State Bar of Montana Annual Meeting in Missoula to call on Congress to increase federal funding for the legal services program nationwide. 

The resolution, if approved by the State Bar’s Past President’s Committee at its Resolution Meeting, will be voted on during the Bar’s business meeting from noon to 2 p.m. On Thursday, Sept. 10, at the Holiday Inn Missoula Downtown. 

The resolution meeting will be held on Wednesday, Sept. 9, from 1 to 1:30 p.m. in the Montana Boardroom of the Holiday Inn. 

The proposed resolution reads that the Bar should:“Strongly urge Congress to maintain a firm commitment to

providing equal acces to justice for the nation’s poor as called for under the Legal Srvices Corporation Act of 1974; and

“Strongly urge the United States Congress to increase federal funding for the legal services program nationwide; and

“Strongly urge all members of the State Bar of Montana to participate in pro bono programs established through the cooperation of the State Bar of Montana, local bar associations, MLSA and other entities to assist in providing legal services for those unable to pay.”

MLSA proposes resolution for Annual Meeting calling for increased funding for legal services

Seminar to highlight Montana Women in the LawMontana Women in the Law: Past, Present and Future, a

CLE seminar with 6.5 credits including 1 ethics, will be held at Chico Hot Springs Resort Oct. 1-2.

Attendees will learn about Montana’s proud history of women lawyers dating back to territorial days and about the inspiring women who forged the practice and opened doors for women practicing in Montana today. Current members of the Montana Supreme Court and Montana federal and district courts will share their insights about changes and challenges that impact all practitioners.

During afternoon break-out sessions, attendees can learn from colleagues practicing in their field.

The faculty includes three justices from the Montana Supreme Court — Justice Patricia Cotter, Justice Beth Baker and Justice Laurie McKinnon; U.S. District Court Judges Hon. Susan Watters and Hon. Carolyn Ostby; and state District Court Judges Hon. Mary Jane McCalla Knisely, Hon. Kathy Bidegaray, Hon Brenda Gilbert, Hon. Leslie Halligan. Also on the faculty.

The 11th Annual Construction Law Institute — 7.0 CLE credits — Oct. 9, Bozeman

Construction law practitioners and construction profession-als will gain insight into practical yet critical issues to consider before, during, and after a construction project.

Such issues include what type of insurances to have in place and in your contracts, what types of provisions are important to include in construction contracts, including alternative dispute resolution procedures, recent Montana law on the importance of following notice provisions in a construction contract, the standards of care which may govern a construction project, and

much more.The moderator is Bridget leFeber of Berg Lilly & Tollefsen,

Bozeman. Speakers are Justice James Jeremiah Shea of the Montana Supreme Court; Rich Deming, CIC and shareholder at First West Insurance; Eric Nord, Crist, Butler & Nord, Billings; Michael R. Powell, vice president, Construction Division, American Arbitration Association; Matt McLean, Crowley Fleck, Bozeman; Glenn Tremper, Great Falls; and Kellie G. Sironi, Billings.

Behind the Curtain: Deepening Our Understanding of Dispute Resolution — 7.0 CLE credits (2 ethics) — Oct. 9, Helena.

This CLE moves beyond mediation checklists and looks at the neuroscience of mediation, collaborative law, mediation and justice, pitfalls of mediation and ethical issues in dispute resolution.

Faculty are Montana Supreme Court Justice Laurie McKinnon; Francis (Hank) Raucci, Gough Shanahan, Johnson & Waterman, Helena; Tal Goldin, Disability Rights Montana, Helena; Alain B. Burrese, Missoula, Abigail R. Brown, Moore, O’Connell & Refling, Bozeman; Linda Gryczan, Montana Mediation Association President, Great Falls

Other Upcoming CLEn Road Show – Friday, Oct. 16 – Kalispell. Details and regis-

tration to follow. n Family Law Section CLE – Friday, Oct. 23 – Missoula.

Details and online registration to follow.n Tech Talk, Tech Talk, Time is Running Out – Friday, Oct.

30 – Missoula. Details and online registration to follow.

Continuing Legal EducationFor more information about upcoming State Bar CLEs, please call Tawna Meldrum at 406-447-2206. You can also find more info and register at www.montanabar.org. Just click in the Calendar on the upper left of the home page to find links to regis-tration for CLE events. We also mail out fliers for multi-credit CLE sessions, but not for one-hour CLE or webinars.

Page 9www.montanabar.org

Court News

Court Orders

Sherlock to retire as Helena District Court judge; commission seeking replacement

The Hon. Jeffrey Sherlock, district judge for the First Judicial District (Lewis and Clark and Broadwater counties) will retire effective Dec. 31, Chief Justice Mike McGrath has informed the Judicial Nomination Commission.

The Commission is now accepting applications from any law-yer in good standing who has the qualifications set forth by law for holding the position of district court judge. The application form is available electronically at the court website. Applications must be submitted electronically as well as in hard copy.

As of Aug. 25, two people had applied: Melissa Broch, Lewis and Clark County deputy county attorney; and Michael McMahon, managing member of McMahon, Wall & Hubley PLLC of Helena.

The deadline for submitting applications is 5 p.m., Sunday, Sept. 13. The Commission will announce the names of the candi-dates thereafter.

The public is encouraged to contact Commission members re-garding the applicants during the public comment period, which will begin Monday, Sept. 14, and close Wednesday, Oct. 14.

The Commission will forward the names of three to five nominees to the governor for appointment after reviewing the applications, receiving public comment, and interviewing the applicants if necessary. The person appointed by the governor is subject to election at the primary and general elections in 2016. The candidate elected in 2016 will serve for the remainder of Judge Sherlock’s term, which expires January 2019. The annual salary for the position is $126,132.

The Judicial Nomination Commission members are: District Judge Richard Simonton of Glendive; Elizabeth Halverson of Billings; Hal Harper of Helena; Mona Charles of Kalispell; Lane Larson of Billings, Ryan Rusche of Columbia Falls; and Nancy Zadick of Great Falls.

Laedeke denied additional time to file motion

Summarized from an Aug. 18 order in No. PR 14-0471The Supreme Court denied disbarred Montana attorney

Randy S. Laedeke’s third request for additional time to file a mo-tion to alter or amend the court’s June 30 order to disbar him.

The original deadline for filing such a motion was July 28. This Court, however, on July 28 allowed Laedeke an additional 10 days to file his motion. On Aug. 10, Laedeke filed a second motion for additional time requesting that he have until August 18 to file his motion. On August 18, 2015, prior to any order being entered by this Court, Laedeke filed his third motion for additional time, requesting that he have until Sept. 3 to file his

motion.The Office of Disciplinary Counsel objected to any addi-

tional time being granted to Laedeke for filing a motion to alter or amend, and the court agreed.

CORRECTION

Incomplete identification of disciplined attorney

An article in the June-July issue of Montana Lawyer con-tained incomplete identifying information on a lawyer who was ordered to receive a public censure. The article should have identified the disciplined attorney as Joseph C. Connors Jr.

Six apply for 11th Judicial District judge position

The Judicial Nomination Commission has received applica-tions from six attorneys for 11th Judicial District Court Judge and is seeking public comment on the applicants.

The six who have applied are :n James Cossitt. Cossitt has been a solo private practitioner

in Kalispell since 1999. He also has been a bankruptcy attorney for the FDIC’s consolidated office in Des Moines, Iowa.n Richard DeJana.DeJana has practiced in Kalispell since

1977. Since 2005 he has been a solo practitioner, and prior to that running a firm with 50 employees.n Amy Eddy. Eddy is a special assistant attorney general

with the Montana Department of Justice. Prior to that she was a solo practitioner and has also been a partner in law firms.n Kay Lynn Lee. Lee has been self-employed, of counsel

to Henning Keedy & Lee in Kalispell simce January 1. She was

a member of the firm from 2006 through 2014 and previously worked at firms in California.n John R. Quatman. Retired from the active practice of law

since June 30, 2015. Prior to that, he was a partner at Quatman & Quatman in Whitefish for 17 years and was senior trial dep-uty district attorney at the Alameda County District Attorney’s Office in Oakland, California,n Dan Wilson. Wilson has been justice of the peace in

Flathead County since 2011. Prior to that he was a shareholder in Measure & Wilson inKalispell.He also has been a county at-torney in Flathead, Blaine and Cascade counties.

The commission will take public comment on the appli-cants until 5 p.m. on Saturday, Sept. 12. Submit to Judicial Nomination Commission, c/o Lois Menzies, Office of Court Administrator, P.O. Box 203005, Helena, MT 59620-3005; or email to mtsupremecourt@mt.gov.

Page 10 September 2015

Feature Article | Neil Haight Pro Bono Award

Professor Hillary Wandler has been in the public eye in 2015 a little more than she is normally accustomed to.

Wandler isn’t a publicity seeker, but she is glad for the ex-posure nonetheless, because along with it has come some extra attention to an issue that is very important to her — helping Montana’s veterans get the benefits due to them for their service to their country.

Wandler, a professor at the University of Montana’s Alexander Blewett III School of Law, is the 2015 winner of the State Bar of Montana’s Neil Haight Pro Bono Award. She will receive the award at the bar’s Annual Meeting at the Holiday Inn Missoula Downtown Sept. 10.

Earlier this year, Wandler was cited in the Missoulian’s 20 Under 40 feature, which highlighted Missoula’s top 20 business professionals under 40 years of age. The Missoulian highlighted Wandler’s work on behalf of veterans even as she battled breast cancer, which she was diagnosed with in 2012.

“I’m excited that pro bono work for veterans is getting attention,” Wandler said. “The veterans community needs to navigate through the complexities of the Veterans Affairs system. Attorneys are well equipped for that.”

Wandler was nominated for the Pro Bono Award by Montana U.S. Sen. Jon Tester.

In his letter, Sen. Tester noted that Wandler developed the

Photo courtesy of the Missoulian/Michael GallacherProfessor Hillary Wandler is shown inside the University of Montana’s Alexander Blewett III School of Law. Wandler is the winner of the State Bar’s 2015 Neil Haight Pro Bono Award.

A warrior for veteransHillary Wandler cited for work helping those in need get benefits

Page 11www.montanabar.org

Sen. Jon Tester’s nomination letter

Following is Sen. Jon Tester’s letter nominating Professor Hillary Wandler for the State Bar’s 2015 Neil Haight Pro Bono Award:

I fully recommend Professor Hillary Wandler for the Neil Haight Pro Bono Award. Her passion for assisting veterans should be recognized. Professor Wandler teaches, among other courses, veteran disability law. Professor Wandler’s research interests include legal issues arising for veterans suffering from psychological disabilities. Professor Wandler is admitted to practice in Montana state and federal courts and the United States Court of Appeals for Veterans Claims and is accredited to practice before the Department of Veterans Affairs.

Professor Wandler developed the University of Montana Law School veteran’s law course and taught the inaugural class in 2009. In conjunction with this inaugural offering, Professor Wandler partnered with the Montana Supreme Court Pro Bono Program to develop Montana Attorneys for Montana Veterans (MAMV) designed as a pro bono program to assist Montana Veterans with claims for disabil-ity benefits. As part of the development of the program, in 2009 Professor Wandler created and delivered a substantive and intense attorney teaching module designed to provide attorneys the training required for accreditation to practice before the Board of Veterans Affairs. Since the initial 2009 training, Professor Wandler has developed and delivered three additional substantive attorney trainings to increase the number of attorneys willing to assist veterans with dis-ability claims before the BVA pro bono. Prior to the first training, there were three Montana attorneys accredited before the BVA. Subsequently and largely due to Professor Wandler’s efforts, almost 70 accredited lawyers are able to help our most in need veterans.

Perhaps most importantly, since her involvement in vet-eran issues, Professor Wandler has, over the last decade rep-resented many veterans pro bono before the U.S. Court of Appeals for Veterans Claims and appeals before the Board of Veterans Appeals as well as assistance with other veteran related legal issues, often having multiple pro bono cases open simultaneously. As anyone who is familiar with vet-eran’s claims, the process is painfully lengthy and requires an incredible amount of time to see to the conclusion. In addition to the countless pro bono hours contributed to the benefit of the veterans, Professor Wandler mentors other lawyers who are assisting veterans and serves as a touch-stone in recruiting volunteer attorneys to assist with veteran cases. Despite the already incredible contributions of time and effort to a full time teaching position and volunteer pro bono work, Professor Wandler is a regular volunteer at Veterans Stand Downs in Montana.

Without hesitation, I recommend Professor Hillary Wandler. Her work and commitment serves as a role model to many.

law school’s veterans law course and has partnered with the Montana Supreme Court Pro Bono Program to develop Montana Attorneys for Montana Veterans, a pro bono pro-gram to help veterans with claims for disability benefits.

Wandler was excited when informed she won the award — she had no idea she had even been nominated. When she found out Sen. Tester had been the one to nominate her, it was an even bigger thrill. She said she has never met the senator, although she has worked with people on his staff on veterans’ issues.

Even though Wandler’s father is a veteran, she wasn’t aware of veterans law issues until after she was out of law school. She got a stark lesson in how difficult it can be to navigate through the VA system when her father came to her for help with a denial letter he received on one of his claims.

“It was just Greek to me. I had absolutely no idea what it meant,” she said. If a lawyer can’t figure this stuff out, she thought, how can a veteran with no legal training be expected to?

She learned about a program in Washington, D.C., called the Veterans Pro Bono Consortium which is related to the Veterans Legal Services program. The consor-tium has training on DVD that anybody can get, but Wandler’s employer at the time, Garlington, Lohn & Robinson in Missoula, sent her to D.C. to get live training.

Wandler modeled Montana Attorneys for Montana Veterans after the program, which gives attorneys a client to handle and a mentor who walks them through the pro-cess with the client.

Wandler said the CLEs that she has put on have been well attended — an indication that a lot of attorneys in Montana are interested in veterans law.

Tester in his nomination letter also cited Wandler’s work as a mentor — noting that through her leadership the state has gone from having three attorneys accredited before the Bureau of Veterans Affairs to having 70.

“Mentor, that feels way too big for me,” she said. “I really like to troubleshoot with people who are having diffi-cult cases. More often than not, it’s just a one-time call. This year particularly it’s been getting more and more frequent. It doesn’t surprise me. A lot of people need help with the more complex cases than they can handle.

“Then we can try and feed them into places where they’ll actually find help. Referral is tough. It would be so great to have a team of people who just dig in on this.”

With Wandler’s help, we are getting closer all the time.

I’m excited that pro bono work for veterans is get-ting attention. The veterans com-munity needs to navigate through the complexities of the Veterans Affairs system. Attorneys are well equipped for that.

Professor Hillary Wandler

“

Page 12 September 2015

The Hon. Kenneth R. Neill spent nearly 20 years as a district court judge in Cascade County before retiring earlier this year. He presided over cases big and small, including ones that received na-tional attention and one that was broad-cast in its entirety by Court TV.

But the accomplishment that may be his most lasting legacy was done before he ever joined the bench.

Neill was instrumental in establish-ing the Cascade County Law Clinic, which was established in 1993 when he was president of the Cascade County Bar Association .

Neill is the winner of the State Bar of Montana’s 2015 Karla M. Gray Equal Justice Award. He will be presented with the award by Gov. Steve Bullock at the bar’s Annual Meeting in Missoula on Sept. 10.

Neill was nominated for the award by Jason Holden of Great Falls, who pointed out in his nomination letter that Neill’s efforts filled the void left when the Cascade County office of the Montana Legal Services Association closed due to lack of funding. (See the full text of Holden’s nomination letter on the facing page.)

Neill cites the clinic as one of his proudest accomplishments — though he is quick to point out that he didn’t do the job himself and that many others worked to make the clinic a reality and to keep it going in the 22 years since.

“The Law Clinic is still going strong,” Neill said in an interview on his last day on the job as District Court judge June 30. “There is great commitment by the attorneys here. I’m proud to have had something to do with getting that started.”

Neill also made a major contribution to equal justice by working with Janet Thayer of the United Way of Cascade County to initate the formation of a

Juvenile Drug Court. “Drug court was a new thing,” Neill

said. “We had to deal with a lot of skep-tics. It took a while for it to get estab-lished here, but our drug courts are really running well at the time.

“I think presiding over the Juvenile Drug Court for about eight years was probably about the best thing I did as a

lawyer or judge. It was just so rewarding to get these kids, getting them to exposed things they’ve never been exposed to before because of the culture they came from and seeing them turn their lives around and graduate. I run into these young adults from time to time. It’s so rewarding to see how some of them are doing.”

Feature Article | Karla M. Gray Equal Justice Award

A legacy of equal justiceNeill was driving force behind Cascade County Law Clinic

Hon. Kenneth R. Neill was Cascade County District Court judge from 1996 until his retirement on June 30. Neill will be honored with the State Bar’s Karla M. Gray Equal Justice Award on Sept. 10 at the bar’s Annual Meeting in Missoula.

Page 13www.montanabar.org

The Honorable Kenneth R. Neill has served the citizens of Cascade County since he was first appointed by Governor Marc Racicot in 1996. Born and raised in Helena, Judge Neill has made his life about serving Justice. Before he served as a District Court Judge for nineteen (19) years, he served in the United States Army, worked as a former law clerk to the Montana Supreme Court and represented victims as a Deputy County Attorney.

For over 22 years the citizens of Cascade County have had something special because of the vision and efforts of Judge Neill. That something special is the Cascade County Law Clinic (the Law Clinic). So many times lawyers and Judges speak of access to justice without taking the neces-sary steps to ensure that the fundamental right to a lawyer is provided to all, and not to just those who can afford it. Judge Neill saw a need in 1993 when legal services throughout the State of Montana, and in particular Cascade County, was under attack. Instead of allowing the needs of those who could not speak for themselves to be silenced, Judge Neill convinced the stakeholders of Cascade County to form the Law Clinic. His vision is still in force today as the Law Clinic celebrated its 22nd anniversary in 2015.

The Law Clinic was formed by Judge Neill in 1993 in response to the serious need for access to legal services for low-income individuals in Cascade County. Judge Neill has personally done noteworthy and considerable work with the Law Clinic since its creation. Judge Neill was the instrumen-tal force in ensuring local access to justice efforts in Cascade County. Since the mid-1980’s the legal services community has been under attack due to a lack of adequate funding. This was especially true in Cascade County when the local office of the Montana Legal Services Association closed. Judge Neill did all that he could at that time to ensure that the Law Clinic would be able to fill the void.

Judge Neill has always understood that even though the resources for legal aid were depleted, the demand for such services would continue to grow. He was right. In form-ing the Law Clinic Judge Neill relied on the entire Cascade County community to support the program. The local Eighth Judicial District Bar Association has been a strong supporter of the Bar since it helped form the Law Clinic under Judge Neill’s leadership. The United Way of Cascade County has supported the Law Clinic since its inception. Local citizens and lawyers have financially supported the Law Clinic in substantial amounts. Local attorneys have built the clinic based on their pro bono service and work yearly to make sure the Law Clinic continues to provide the services so many need. Judge Neill’s vision in regard to community sup-port has been tremendous as the community continues to support the program 22 years after its creation.

The Law Clinic primarily serves individuals below 125 percent of poverty level. The Law Clinic has, for years, relied upon Judge Neill and his staff to coordinate and recruit

private attorneys to represent the Law Clinic’s clients on a pro-bono basis. When an attorney receives a letter from Judge Neill, he is not only ensuring access to justice for that specific client, but encouraging all attorneys to volun-teer their services in support of the Rules of Professional Conduct. Judge Neill’s recruitment of volunteer attorneys is perhaps his greatest legacy in terms of access to justice. Without an attorney there is truly no access to justice.

Judge Neill’s commitment to recruiting volunteer attor-neys has provided thousands of individuals with an attorney — free of charge — since 1993. In 2014 alone, the Law Clinic received 587.45 hours of pro bono attorney services with an additional 192 hours of pro bono paralegal services. A con-servative estimate of the value of the hours donated equals $200,000.00. That value to the community — in 2014, much less since 1993 — would never have been realized without Judge Neill’s original vision, or continued commitment to the Law Clinic.

With the encouragement and support of Judge Neill, the Law Clinic has helped thousands of individuals with their legal needs since 1993. The Law Clinic has provided pro bona representation in all family law matters, has provided attorneys for victims of domestic violence and has assisted individuals in landlord-tenant disputes. When a father or mother is provided an attorney free of charge in a family law matter because of Judge Neill’s vision, that father or mother is able to bring stability to an otherwise unstable situation. When a victim of domestic violence is able to have an at-torney represent her at a contested hearing because of Judge Neill’s vision, that woman is provided security and assurance that the law will protect her. When someone has been kicked out of their home unlawfully because of Judge Neill’s vision, that person is provided a place to live.

It is not just Judge Neill’s work in creating the Law Clinic that is noteworthy. It is his daily and yearly commitment to the Law Clinic that makes his efforts remarkable.

He has worked tirelessly to improve the Law Clinic’s de-livery of legal services and has found ways to fund the Clinic when opportunities arise. He was instrumental in making sure the Law Clinic has survived several changes in leader-ship and bumps-in-the-road. No matter who is in charge, or what issues arise, anyone who deals with the Law Clinic can always call Judge Neill and the issue will be addressed.

The Law Clinic has also been used as an example around the State of Montana for its form and function. It is a model that has been used by other local bars throughout the State of Montana to define and model their delivery of legal services.

And so too is Judge Neill a model. He is a model of selflessness and dedication to providing access to justice. He is someone the former Chief Justice Karla M. Gray would be proud to have her name associated with for all that he has done, and all that he continues to do with the Law Clinic.

Below is the letter by Jason Holden nominating retired Cascade County District Court Judge Kenneth R. Neill for the Karla M. Gray Equal Justice Award.

Page 14 September 2015

Feature Article | 50-Year Pins

Diana Dowling, shown above in a 1987 photo and in a more recent picture, was one of Montana’s trail-blazing female lawyers. She worked for the Montana Legislative Council for 20 years, including serving as drector of legal services, code commissioner and executive director from 1978 to 1986. She was the exucutive director of the Montana Bar Association from 1972 to 1974. Other highlights include being the first director of the Montana Lottery, a commissioner on the National Conference of Commissioners on Uniform State Laws, a member of the Montana Board of Bar Examiners and serv ing as counsel to the Style and Drafting Committee for the 1972 Constitutional Convention. She was the first secretary-treasurer of the unified State Bar of Montana.

Twenty members of the State Bar of Montana are receiving 50-year pins this year — and what a group it is.

Most of the 50-year-pin recipients are plan-ning to be on hand for the banquet at the bar’s Annual Meeting in Missoula on Sept. 10 at the Holiday Inn Downtown, where they will receive their awards and be honored by a special program highlighting their remarkable careers.

Twelve of the 50-year-pin recipients were graduates of the University of Montana School of Law’s Class of 1965 (see photos on facing page). That class included a future United State District Court judge (Hon. Sam Haddon), two future state District Court judges (Hon. Kenneth R. Neill, Hon. John W. Whelan,), a future president of the State Bar of Montana (Doug Wold).

The 20 who are receiving 50-year this year are:

n L. Neil Axtell, Spokane, Wash.n Robert Baxter, Thompson Fallsn Donald Bjertness, Billingsn Thomas Boone, Missoulan J. Allen Bradshaw, Drummondn Floyd Brower, Roundupn Milton Datsopoulos, Missoulan Diana Dowling, Helenan Bradley Dugdale, Havren Hon. Sam Haddon, Helenan David Jackson, Helenan Horton Koessler, Billingsn Hon. Kenneth Neill, Great Fallsn David Niklas, Helenan Frederick C. Rathert, Williston, N.D.n Francis “Hank” Raucci, Helenan W. Gene Theroux, Grand Forks, N.D.n R. William Walsh, Great Fallsn Hon. John Whelan, Butten Douglas Wold, Polson

Over the next few pages, we pay tribute in pic-tures to many of this year’s 50-year pin recipients.

A class of distinction

Doug Wold was president of the State Bar of Montana for 1984-85. As bar president, Wold was instrumental in the formation of the IOLTA program, and in his term, the Supreme Court created the Commission on Uniform District Court Rules at his request. He has run his practice at Wold Law Firm since 1995.

20 State Bar of Montana members to get recognition

for 50 years of practice at Annual Meeting

Page 15www.montanabar.org

Shown is a recent class reunion photo from the University of Montana School of Law’s Class of 1965. They are, front row, from left, J. Allen Bradshaw, Bradley E. Dugdale, Joseph E. Reber; middle row, Hon. Kenneth R. Neill, Hon. Sam Haddon, Warren Gene Theroux, Fred C. Rathert; back row, Robert T. Baxter, Horton “Tony” Koessler, David K. Niklas, Douglas J. Wold, Milton Datsopoulos, and Hon. John W. Whelan. Of the 13 people pictured, 12 will receive ther 50-year pins at the State Bar of Montana’s Annual Meeting in Missoula Sept. 9-11. The other is Reber, who passed away earlier this year. See his obituary on page 28. Below is the class photo of the Class of 1965. Can you match the people in the reunion photo to the 1965 photo? (Hint: They are lined up in the same rows, and mostly in the same order in both pictures).

Page 16 September 2015

Milt Datsopoulos is senior partner at Datsopoulos, MacDonald & Lind in Missoula. His awards include Lifetime Trial Lawyers Achievement Award; selected as one of the nation’s top 100 trial lawyers; fellowship in the Litigation Counsel of America’s Trial Lawyer Honorary Society; chosen as a Mountain States Super Lawyer.

Hon. John W. Whelan retired in 2006 after 12 years as a state District Court judge in Butte. At the time he retired, he was the oldest district judge in Montana. Prior to becoming a judge, he was a private lawyer for 30 years and a part-time U.S. magistrate judge in Butte for 10 years.

Don Bjertness is shown in 1965 photo and in a 2010 photo. Bjert-ness served for 24 years as Billings Municipal Court judge. He received his JD from the University of North Dakota in Grand Forks in 1957.

50 years of practice in Montana

Page 17www.montanabar.org

50 years of practice in Montana

David L. Jackson, of Helena, passed the bar on April 15, 1965, and began practicing the next day. He has practiced with the firm that is now known as Jackson, Murdo & Grant since 1968. He attended Drake University Law School from 1962-64.

Thomas Boone graduated from Harvard Law School in 1965 and spent a year clerking for a federal judge. In 1968, he formed Boone Karlberg, from which he retired as of June 30, 2015.

Francis J. (Hank) Raucci received his law degree from Georgetown University in 1965. He has been a member of the Philadelphia Crime Com-mission, the Montana Labor Relations Board, and was appointed an early neutral evaluator by the U.S. District Court for Montana in 2002. In 2010, he was elected as a fellow of the Academy of Court Appointed Masters, one of 83 in the U.S.

Page 18 September 2015

Special health care provisions for Indians in ‘Obamacare’ in need of protection

By Andrew W. Baldwin, Kelly A. Rudd and M.J. Vuinovich

Congress exempted American Indians from payment of health insurance deductibles and co-payments under the Patient Protection and Affordable Care Act (ACA) (“Obamacare”) as a progressive way to help fulfill federal trust and treaty obligations in Indian Country.

However, recent IRS regulations prevent tribal members from obtaining this exemption if they work for a “large em-ployer,” even when that employer is an Indian tribe. The regu-lations push tribal members, who are exempt from the ACA individual mandate, away from the health insurance market and back toward the historically underfunded Indian Health Services (IHS) system.

At the same time, fewer insurance policies for tribal mem-bers reduce reimbursements for IHS, which, in turn, further reduce IHS funding and services. Indian Country is beginning to take a closer look at the problems created by these new IRS regulations and to lobby Congress and the Administration for a solution. In fact, Sen. Steve Daines, R-Mont., and others, are now sponsoring a bill to make it clear that Congress does not intend for tribes to be treated as large employers under the ACA.

The Affordable Care ActIn 2010, Congress enacted special provisions for the health

care of Indian people and permanently re-authorized the Indian Health Care Improvement Act (IHCIA) as part of the ACA. The intent of these provisions was to improve uncon-scionably poor health conditions among Native Americans and to help fulfill unique treaty and federal trust obligations to tribes and tribal members.

Special health care provisions for IndiansThe ACA includes two important provisions that facili-

tate cost-effective health care for Native Americans: (1) ACA §1401, which provides Premium Tax Credits to low-income and working-class Americans1 (people in the income range of 100-400 percent of the poverty line);2 and (2) ACA §1402(d)(1), which provides for a Cost-Sharing Exemption that Congress created for the specific purpose of funding out-of-pocket insurance co-payments for Native American house-holds with incomes that do not exceed 300 percent of the poverty line.3

The federal government has trust and treaty obligations to Native Americans and the need for improved health care services in Indian Country is extraordinary. As a result, Congress went to significant lengths to create legislation that

dealt uniquely with the provision of health care for Native Americans under the ACA. Congress intended to treat Indian individuals, Tribes, and tribal entities separately and distinctly from non-Indians within the Act.4 The act includes permanent reauthorization for the IHCIA.5 It exempts Native Americans from the individual mandate on the basis of the trust rela-tionship.6 It creates special cost-share benefits for Native Americans.7 It allows IHS to receive reimbursement for Part B Medicare services.8 It adjusts the valuation of out-of-pocket costs for Part D Medicare provided through IHS.9 It creates special monthly enrollment periods for Native Americans de-signed to promote and protect the rights of Native Americans to make choices about health care insurance.10 It provides special grant funding opportunities to Tribes and tribal or-ganizations.11 The law gives special emphasis to promoting health among Native communities and involves tribes in that process.12 Further, it preserves a tax immunity for insurance or other health care assistance provided by tribes for tribal members.13

Two key mandates of the ACAWithin the ACA, Congress created a new system for

health care aimed at providing insurance coverage for most

Feature Article | Affordable Care Act

More on Affordable Care Act

Turn to page 20 for an article on the brand-new ACA reporting requirements. The primary message to your clients should be, Do not delay!

Page 19www.montanabar.org

Americans. Generally, the law is structured around two key mandates which require most Americans to have health insur-ance: (1) the individual mandate; and (2) the Large Employer mandate. Nevertheless, Congress approached health care for Native Americans in a way that departs from this overarching structure and is not driven by the application of individual or Large Employer mandates.

The individual mandate obligates most people to pur-chase insurance or face tax penalties.14 Congress made Native Americans exempt from the individual mandate.15 This ex-emption is in recognition of treaty and trust obligations which require the federal government to provide health care to Native Americans, and builds on an established system of regulations and services provided through the IHS that pre-dates the ACA.

The large employer mandate16 obligates certain employ-ers with more than 50 employees to provide a qualified health insurance plan or face tax penalties. Indian Tribes are not specified in the statutory definition of a large employer that is subject to the mandate.17 However, the IRS and U.S. Health and Human Services (HHS) now include Indian tribes in a regulatory definition of “large employer.”

The IRS promulgated three final regulations – 26 C.F.R. §54.4980H-1,18 26 C.F.R. §301.6056-1,19 and 26 C.F.R. §1.6055-120 – that deem Indian governments to be “large employers” for purposes of the ACA. The IRS asserts that the large employer mandate applies to “government entities,” including “Indian tribal government employers” and promulgated regulations to that effect. See IRS Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act.21 One regulation includes tribal agencies and instrumen-talities22 and another regulation reserves the issue for another day.23

How do new rules block benefits for Indians?The ACA mandates that a large employer offer policies

for their employees and their dependents on certain terms. Generally, the cost of such policies cannot exceed 9.5 percent of the employee’s household income.24 A large employer that does not offer qualified policies faces fines and penalties for failing to do so.25 Policies available through a large employer offer neither the §1401 Premium Tax Credits nor the §1402(d)(1) Cost Sharing Exemption for Indians. As a result, the new regulations block the benefits Congress intended for Native employees of large tribal employers.

The Obama Administration has begun to implement the regulations which include Indian tribes in the definition of Large Employer. People who are employed by a large employer that offers qualified plans may choose to purchase insurance on the exchange instead of through their large employer, but in that event, those individuals are still not eligible for §1401 Premium Tax Credits to subsidize their health care costs. Moreover, under the new regulations, tribal members living below 300 percent of poverty will also be blocked from the §1402(d)(1) Cost Sharing Exemption if they are employed by a large employer.

In fashioning regulations expanding the large employer provision of the ACA to include Indian tribes, the Obama Administration has, perhaps inadvertently, created barriers

that block Native Americans from accessing important benefits that Congress provided. These regulations create a circum-stance where a Native American who is employed by a tribe (with over 50 employees) is only eligible for large employer group coverage. This large employer coverage does not provide either the Cost-Sharing Exemption or Premium Tax Credits. Simultaneously, the regulations disqualify the Native American employee from obtaining a policy on the exchange that would otherwise provide the Cost-Sharing Exemption and Premium Tax Credits, based (evidently) on the mistaken presumption that the Native American employee will have access to equivalent benefits and coverage on a large employer plan. Many tribal members cannot afford to purchase policies offered by a large employer, especially when doing so means they must also pay expensive deductibles and co-payments. Instead, members may decline to purchase health insurance and turn back toward reliance on the limited services provided by IHS. Tribes could face substantial financial penalties if they choose not to comply with the large employer mandate.

The regulations implementing the large employer mandate fail to recognize the unique status of tribes and tribal members under the ACA. The agency regulations relegate tribal-member employees of tribal organizations to a generic category of large employers, erasing the distinction recognized by Congress.

Does King v. Burwell impact Indian Country?The recent Supreme Court ruling in King v. Burwell means

that tribal members with health insurance in states that use the federal “exchange” can continue to obtain their policies there, which is good news. But the IRS and HHS continue to block tribal members who work for a tribe with over 50 employees from the exemption from payment of deductibles and copay-ments, which are available to other tribal members who do not work for a large employer.

CONCLUSIONApplication of the large employer mandate to tribes by

regulation is contrary to the intent of Congress because it con-flicts with treaty obligations and the federal system of health care incentives for Indians. It blocks Native Americans from the Cost-Sharing Exemption (and the Premium Tax Credit), exposes Tribes to penalties if they choose not to comply with the large employer mandate, increases financial pressure on efforts by tribes to help provide affordable health care, reduces IHS budgets and services by eliminating insurance policies as third-party billing sources, increases insurance costs and reduces coverage for Indian people, and drives tribal members back toward reliance on the underfunded IHS system. Health care providers will be burdened by greater numbers of unin-sured patients.

Consistent with its separate obligations to Indians and its special treatment of Indian health care issues, Congress intended Native Americans to obtain insurance policies and benefits available to them through the exchange. Coordinated lobbying efforts by Indian Country are needed to help resolve these problems.

Tribes, page 29

Page 20 September 2015

New ACA informational reporting requirements: What you need to know

This article is part of the continual effort by the State Bar of Montana Health Law Section to keep lawyers informed of cur-rent events with respect to the health care industry.

By Kristy Buckley

Do not delay. That should be your primary message to business clients who

are trying to decipher the brand new Affordable Care Act (ACA) reporting requirements. The new reporting requirements are due to each employee1 by Jan. 31, 2016, and to the Internal Revenue Service on Feb. 29, 2016, if paper filed or March 31, 2016, if e-filed.

The new IRS forms are informational2 only and are meant to provide the IRS with a tracking system for individuals covered and offers of coverage on employer group health plans. Certain small employers will report using the ‘B-Series’ [Forms 1094-B and 1095-B] of forms and large employers will report using the ‘C-Series’ [Forms 1094-C and 1095-C] of forms. Even though the deadlines seem reasonably far in advance, employers should not delay in gathering relevant data and tracking employee health coverage. Final data will not be complete until Dec. 31, which will not leave much time for an employer’s learning curve in order to meet its January deadline.

A general practitioner can take a simplified approach to these new forms by roughly dividing your business clients into three major categories: (1) small employers that sponsor a fully in-sured group health plan; (2) small employers that sponsor a self-funded group health plan, even partially; and (3) large employers. Some of you may recall that a small employer is one that employs fewer than 50 full-time equivalent employees, as that concept is defined under the ACA.

A. Small employers with a fully insured group health plan: Easy Street, mostly

Small-employer clients that offer an insurance product for medical benefits to employees will likely enjoy limited exposure to the new ACA reporting requirements. Small fully insured plans are reported by the insurance company, not the employer. Insurance companies may turn back to small employers if the in-surance company is missing information, but most insurers have

1 The forms are technically due to as follows: (1) for small employers reporting on the B-Series, forms are due to “responsible individuals” and (2) for large employers reporting on the C-Series, forms are due to (i) full-time employees; (ii) covered part-time employees; and (iii) covered non-employees (such as directors). The term “responsible individual” includes each person who is a primary insured person on the policy, which is typically an employee.2 Examples of other types of informational forms include the Form W-2 (uses Form W-3 for transmission) and most Forms 1099.

already gathered everything that they need to report.

B. Small employers with a self-funded group health plan: Not too hard, B-Series forms

Small employers will sometimes be part of an association group health plan that pays benefits out of a trust (self-funded) or will sometimes cover employees’ medical costs out of employer general assets (also self-funded). Small self-funded plans have a reporting obligation at the employer level and will be required to use the “B-Series” forms. The forms are not too burdensome in terms of information gathering, but small employers should be prepared to have Social Security numbers on every person who is covered under the health plan (employees, covered spouses and covered dependents). Some of the more challenging questions involve determining whether the plan is self-funded and carefully following the instructions despite some misleading headings on the forms.

Large Employers: Complicated and data-intensive, C-Series forms

Large employers should have started collecting the neces-sary records, data and tracking already. The C-Series forms will require monthly tracking for all (1) full-time employees, (2) covered non-employees, and (3) covered part-time employees. Monthly information will include dates when health coverage is offered, dates when a person enrolls in health coverage, and several different codes to indicate the levels of coverage and offers made. Large employers must collect Social Security numbers for all employees, dependents and spouses that are covered (includ-ing covered non-employees, such as directors). The C-Series forms are meant to provide the IRS with additional ACA com-pliance tracking to determine whether any penalties might be required under the ACA employer mandate. Finally, the C-Series forms will cross-reference against any employees who were

Feature Article | Affordable Care Act

More on Affordable Care Act

Congress exempted American Indians from payment of health insurance deductibles and copays under the Patient Protection and Affordable Care Act, but recent IRS rules prevent tribal members from using this exemption if they work for a “large employer. Tribes are beginning to take a closer look at problems created by these new rules. See page 18 for more.

Reporting, page 26

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Montana’s Area Agencies on Aging support older adults to live and thrive at home

This article is part of the State Bar of Montana Elder Assistance Committee’s efforts to keep lawyers informed of current events with respect to elder.

By Lisa Sheppard Flathead County Agency on Aging

The country’s aging population is exploding, as more than 10,000 people turn 65 each day. Montana is aging more rapidly than most and is poised to be-come fourth in the nation in the number of older adults per capita. In 2013, 16 percent of all Montanans were age 65 or older and 25 percent were age 60 or older. By 2020, adults 60 plus will represent 28 percent of the state’s population, growing to 31 percent by 2030. For some rural and frontier communities, older adults will represent 40-70 percent of their population. This demographic shift is un-precedented and likely to be far-reaching in its social and economic implications.

The overwhelming majority of Americans want to age in place in their homes and communities, but current and emerging challenges make this far from a given. While Americans are living longer, the increase in older adults pro-portional to the population as a whole, the increase in the number of people living long-term with chronic condi-tions, the rise in Alzheimer’s disease and other forms of dementia, the high costs of long-term care services, the shortage of informal and paid caregivers and the prevalence of economic insecurity among older adults combine to make the future uncertain.

Fifty years ago on July 14, 1965, President Lyndon Johnson signed into law Medicare, Medicaid and the Older Americans Act (OAA), creating the foun-dation of the system that today supports older adults to maintain their health and remain in their homes and communi-ties. Now more than ever this system is critical to enabling older adults to age

in place, honoring their choices and preventing costly institutionalization.

The passage of the OAA set in motion the development of a vast national net-work of providers charged with offering a wide range of supports to those 60 and older, and in recent years to adults of all ages with disabilities. In Montana, the Department of Public Health and Human Services contracts with10 Area Agencies on Aging and Aging and Disability Resource Centers to provide services at the local level. Funding consists of federal, state and local funds, client con-tributions, grants, contacts and private donations.OAA core services include:• Meals served at local sites, such as

senior or community centers• Home-delivered meals, better known

as Meals on Wheels• Preventive health services, such as fall-

prevention classes• In-home care, such as housekeeping

and personal care

• Respite, training and other support for informal caregivers (family and friends)

• Transportation• Elder abuse prevention• Information and referral to a wide

range of services and benefitsAlthough all of Montana’s agen-

cies on aging and aging and disability resource centers provide core services, the OAA allows for a flexible, locally driven, person-centered approach to service delivery. Within certain param-eters, providers can be creative in their response to community and individual needs. Additionally, many offer non-OAA services as well, such as veterans services, Medicaid-funded home and community-based services and national service programs like the Retired and Senior Volunteer Program and foster grandparents. As a result, service avail-ability may differ from area to area.

Eligibility for services is simple. OAA services are for adults age 60 or older, their spouses and caregivers. Aging and Disability Resource Centers also serve in-dividuals with disabilities age 18 or older and their families or caregivers. Unlike Medicaid and many other services, eligi-bility is not based on income, but agen-cies on aging and aging and disability resource centers do focus on those with the most economic or social need. Meals and information and assistance services are provided on a donation basis. Other OAA services may be offered on a sliding fee scale or other fee-for-service basis. Non-OAA services have varying costs and eligibility criteria.

To contact your local agency on aging, call 1-800-551-3191. To learn more about aging issues and services in Montana, visit the DPHHS website at http://dphhs.mt.gov/sltc/services/communityservices/cswaiver.

Lisa Sheppard, MSSW, MPAff, is direc-tor of Area IX/Flathead County Agency on Aging

Feature Article | Elder Assistance

Page 22 September 2015

By Mark Bassingthwaighte ALPS

MRPC Rule 1.4 Communication is one of those rules that seems clear on its face. We all know that as lawyers we are to keep our clients reasonably informed about the status of their matters as well as to promptly comply with reasonable requests for information. There’s nothing unexpected there. Most also know that the rule further states that a lawyer shall explain a matter to the extent reasonably necessary to permit the cli-ent to make informed decisions regarding the representation. Maybe I’m just not seeing it, but all this seems rather straight forward to me. If it were that simple, however, why do attorneys continue to face disciplinary complaints and malpractice claims in the numbers that they do for simply failing to communi-cate? Perhaps there’s more to the rule than what is generally remembered.

As I consider the implications of this rule, I have found it helpful to analyze the rule from a slightly different perspec-tive than what’s commonly done. So often, what we remember the rule as saying is taken at face value and discussed from the perspective of what needs to be communicated and when. One often hears of the importance of returning phone calls in a timely fashion, forwarding to the client copies of all relevant documents, providing regular and detailed billing, and person-ally visiting with the client to explain the status of a matter sufficient to allow the client to make informed decisions when deemed necessary. While all of this is quite important, I would like to come at the rule from the perspective of who gets to de-cide what. This helps me keep roles straight and remember who has employed whom, which is key given other language in the rule which isn’t as often recalled.

Beyond what is set forth above, Rule 1.4 also states that a lawyer shall inform the client of any decision or circumstance that requires the client’s informed consent under the Rules. Now, Rule 1.2 Scope of Representation comes into play as do several conflict rules at a minimum. In addition, the Rule tells us that a lawyer is to reasonably consult with the client about the means by which the client’s objectives are to be accom-plished. For me, this language shifts the emphasis of the rule. The rule is no longer about sharing what you think the client needs to know; but rather it is really about what does your client reasonably expect to be told throughout the course of representation. I believe there is real value in shifting the focus away from what you, as the attorney, thinks should be shared and moving it toward what any client would reasonably expect their attorney to share.

With all this in mind, what are the ramifications of this rule day to day for the practicing attorney? Certainly promptly returning phones calls, timely responding to client requests for information, forwarding copies of documents, and the regular sending of detailed bills are a given. But there is more. An at-torney should keep clients informed of all court dates, all filings, and all offers to settle or mediate. Also, don’t overlook telling clients about any changes to your contact information such as a change in your address, phone number, or email. Yes, perhaps a shift in perspective wasn’t necessary to develop this list thus far; but I will share that many attorneys regularly struggle with following through on just these basics. Typical rationalizations or excuses include the client doesn’t really need to be bothered with this, I know what my client will say or decide anyway, I don’t have the time to tell them, the client doesn’t want to be billed for the time it will take, etc. In short, attorneys start to run with assumptions and rationalizations when it comes to the basics of effective communication, and this can be a dangerous play.

However, with the shift in focus in mind, how might this list of suggested practices expand? Consider scope of repre-sentation. As an attorney being hired to handle litigation for a financial institution, it is easy to understand how one might focus solely on the litigation. On the other hand, the client who

Meeting a client’s expectations for communication is all in the details

Feature Article | Duty to Communicate

Meeting an attorney’s duties under MRPC Rule 1.4 go beyond return-ing phone calls and forwarding copies of documents. Attorneys should talk with their clients and try to determine their expectations from the outset.

Page 23www.montanabar.org

has hired the attorney may be expecting their attorney to see the “big picture” and keep them informed about everything in play to include issue spotting. What if there is a regulatory report-ing and/or compliance issue peripheral to the litigation? If the attorney is not up to handling the related issue she must say so because the client will often reasonably expect their attorney to not only issue spot but to take care of the related matter or at least inform them of anything that the attorney is not competent to or perhaps prepared to handle so that appropri-ate attention can be given to that peripheral issue. This is one reason why documenting scope of representation is critically important with all clients. Again, it is all about considering what clients would reasonably expect to be told.

So now we can expand our list of ramifications to include the following. Clients should be told what the scope of repre-sentation is and also what it isn’t; they should be informed of their rights, especially in criminal matters; the ramifications of any actual or potential conflict issues should be fully explained to clients prior to their agreeing to representation; and client permission should be obtained for granting extensions of time to adverse parties, stipulating to evidence or testimony, agree-ing to continuances, and for making and/or rejecting settlement offers. Clients expect to be told when their matter has concluded and what, if anything, they must yet do. Whether through inability or oversight, clients must also be in-formed of a failure to take action on the client’s matter or that their case has been dismissed. Clients do reasonably expect to be informed about any and all of the above whether it’s good news or bad.

When thinking about communication, this shift in perspective helps to keep the empha-sis on the client and the fact that we, as the attorney, are in the client’s employ. Many decisions are for the client to make. This reality does not in any way, shape or form minimize your role as the attorney. In fact, I believe this perspective helps to elevate an attorney’s role. Consider the word “counselor” in light of Rule 1.4 and ask yourself what might that word mean in daily practice? For me it means that a lawyer is to advise the client about the legal and practical aspects of any given matter. The lawyer is to identify and evaluate alternative solutions pointing out the positives and negatives of each. The goal is to enable the client “…to partici-pate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.” (See Comment 5 to Rule 1.4 of the ABA Model Rules.) This intended outcome does require that we approach communica-tion from the client’s perspective. With all clients, ask yourself just what does the client need to know to be able to make intel-ligent decisions? As the attorney, if this question is never asked and answered with every client, you are taking an unnecessary risk that can and will at times lead to disastrous outcomes in the malpractice and disciplinary arenas.

Let’s take this point one step further. Assume that you have taken on a regular run-of-the- mill divorce client. Should you discuss the option of conducting electronic data discovery? A

number of attorneys simply never raise the issue. Some don’t see the need. Some see it as cost prohibitive, and some simply have no idea how to do it and/or no intention of ever going there in their own practice. Now focus on the client, haven’t these attorneys actually made a decision that properly belongs to the client? I would argue that indeed they have. In fact we have reached a time where a follow-up attorney, who was hired to review a file of one of these attorneys after their client did experience an eventual unintended consequence from their attorney’s failure to discuss let alone conduct electronic data discovery, may actually tell the client that not only does he view the situation as a failure to communicate but there may also be a viable malpractice claim here.

I can’t create a list of everything that an attorney should tell a client. I can only give examples of things to think about and a perspective from which to begin to address the issue. What clients expect to be told will vary with every client and on every matter. Talk with your clients and try to determine their expectations from the outset. The bottom line is this: Clients do expect to be fully informed and attorneys have an ethical obligation to meet that expectation. Here’s the kicker, however.

Your communication efforts must be handled in a way that seeks to assure that the client understands and comprehends all that is being communicated about all that must be decided. Forwarding copies isn’t enough. This is how a jury is going to see it so once again, it’s all in the details.

Mark Bassingthwaighte, Esq., is the Risk Manager for ALPS Property & Casualty Insurance Company. He is available to answer risk manage-ment questions and can be reached at 1-800-367-2577 or mbass@alpsnet.com.

DISCLAIMER: ALPS presents this article as general informa-tion only. While ALPS strives to provide accurate information, ALPS expressly disclaims any guarantee or assurance that this publication or document is complete or accurate. Therefore, in providing this publication or document, ALPS expressly disclaims any warranty of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

Further, by making this publication or document avail-able, ALPS is not rendering legal or other professional advice or services and this publication or document should not be relied upon as a substitute for such legal or other professional advice or services. ALPS warns that this publication or document should not be used or relied upon as a basis for any decision or action that may affect your professional practice, business or personal affairs. Instead, ALPS highly recommends that you consult an attorney or other professional before making any decisions regarding the subject matter of this publication or document. ALPS Corporation and its subsidiaries, affiliates and related enti-ties shall not be responsible for any loss or damage sustained by any person who uses or relies upon the publication or document presented herein.

The bottom line is this: Clients do expect to be fully informed and attorneys have an ethical obligation to meet that expectation.

“”

Page 24 September 2015

Life-changing legislation passed in Montana for citizens with disabilities

By Jon Bennion, Aimee Grmoljez and Mike Green

The Montana Legislature often gets a bad rap for conten-tious, partisan battles on a handful of high-profile issues, but many success stories go untold. The 2015 legislative session had many bills with supermajority support in votes by both houses. Surprised? Don’t be. Legislators work hard out of sense of duty and commitment to the public good and not for money and glory. In this case we want to share the glory of one story and how you can be a part of the story now that the bill has become law. This story can truly be a life-changer for one of your cli-ents, or friends or family members with disabilities. It involves the enactment of Senate Bill 399, Montana’s Achieving a Better Life Experience (ABLE) Act, sponsored by Sen. Fred Thomas, R-Stevensville, and co-sponsored by Sens. Mary Caferro, D–Helena) and Cynthia Wolken, D–Missoula.

The new law allows eligible individuals with disabilities the ability to establish “ABLE accounts’’ (also known as 529A accounts) that resemble the 529 qualified tuition programs that have existed under the tax code since 1996. The new ABLE accounts will allow more individual choice and control over spending on qualified disability expenses and limited invest-ment decisions, while protecting eligibility for Medicaid, Supplemental Security Income, and other important benefits for people with disabilities.

Why does an individual need an ABLE Account? Without these accounts, many people with disabilities have very limited avenues to save and allow for further independence. Assets in an ABLE account and distributions from the account for qualifying expenses would be disregarded or receive special treatment when determining the beneficiary’s eligibility for most public-means-tested benefits. In short, the law recognizes the obvious — people with disabilities face added costs and

burdens that aren’t covered by government poverty programs, and the state should not stand in the way of these individu-als saving their own money to be used for disability-related expenses.

The federal ABLE Act was passed by Congress with sup-port from the entire Montana delegation and signed into law in December of 2014. The new law required states to enact enabling legislation at the state level in order for their citizens to take advantage of these provisions. That left supporters in Montana, one of only five states with biennial sessions, little time to craft state legislation, educate lawmakers and build a bi-partisan coalition.

Despite our timing challenges, four legislative hearings and little guidance from the federal government on implementa-tion, a diverse group of advocates were able to pass the bill, the tenth ABLE Act in the country, with near-unanimous legislative support and have Governor Bullock to sign the bill. To date __ states have passed ABLE Acts and we applaud these efforts to allow for individuals with disabilities the same ability to save for their specific future needs as those individuals with education funds in 529 plans can currently save for their future needs.

Key Elements of the Montana ABLE Act Include: n Once implemented, the program will be run very similarly

to Montana’s Family Education Savings Program as established in Montana Code Annotated 15-62-101. One or more private financial institutions will be selected to house the accounts. Montana will be able to team with other states to offer ABLE Accounts as widely and efficiently as possible.n Any person, such as a family member, friend or the per-

son with a disability, may contribute to an ABLE account for an eligible beneficiary. n An ABLE account may not receive annual contributions

exceeding the annual federal gift-tax exemption ($14,000 in 2015).n Unlike some states with government-run ABLE pro-

grams, the Montana ABLE Act will be carried out through a public-private partnership using selected financial institutions to serve as depositories for individuals’ savings accounts estab-lished pursuant to the Act. The Department of Public Health and Human Services will act as the government partner, with input from a committee, to help select the financial institutions that could act as depositories and recommend policies. n An eligible individual is a person (1) who is entitled

to benefits on the basis of disability or blindness under the Supplemental Security Income (SSI) program or under the Social Security disability, retirement and survivors program OR (2) who submits certification that meets the criteria for a

Feature Article | Montana’s ABLE Act

Senate Bill 399 allows more choice, control over spending on qualified disability expenses

Page 25www.montanabar.org

disability certification. An eligible individual’s disability must have occurred before the age 26. n Qualified disability expenses are any expenses paid for the

benefit of the designated beneficiary and related to his/her dis-ability, including: education, housing, transportation, employ-ment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and other expenses, which are approved by the Secretary of the Treasury under regulations. n Earnings on an ABLE account and distributions from

the account for qualified disability expenses do not count as taxable income of the contributor or the eligible beneficiary. Contributions to an ABLE account must be made in cash. n The Act provides a Montana income tax deduction of up

to $3,000 per year for contributions, which is identical to the treatment for 529 accounts. n Assets in an ABLE account may be rolled over without

penalty into another ABLE account for either the designated beneficiary (for instance, if moving to another state) or any of the beneficiary’s qualifying family members. n Supplemental Security Income (SSI): For SSI, only the

first $100,000 in an ABLE account will be disregarded. Assets above $100,000 will count as resources under SSI. In addition, if the designated beneficiary’s ABLE account balance exceeds

$100,000, the individual’s SSI benefits will not be terminated, but instead will be suspended until such time as the individual’s resources fall below $100,000. Further, it is intended that distributions expended for housing purposes will receive the same treatment which all housing costs paid by outside sources receive. n Medicaid Eligibility: A beneficiary will not lose eligibility

for Medicaid based on the assets held in their ABLE account, even during the time that SSI benefits are suspended (as de-scribed above for an account with over $100,000).

How can you be part of the story? Once fully implemented, this bill can improve the lives of hundreds, if not thousands, of Montanans with disabilities. This new opportunity opens doors previously closed, and gives attorneys one more tool as they help clients with disabilities navigate through the com-plex world of law, tax and government programs. Please be sure you seek more information on ABLE accounts (which the Department of Health and Human Services is drafting rules now to implement) to ensure you can fully inform the people who rely on you for advice on these matters. Thank your legisla-tor for passing this new law and thank you for being part of this continued success story of the 2015 Legislature.

Jon Bennion is Deputy Attorney General in the Montana Department of Justice. Aimee Grmoljez and Mike Green are part-ners at Crowley Fleck.

Page 26 September 2015

given tax credits (also called subsidies) for health coverage obtained on the marketplace. If a large employer has so many employees that supplying the forms in hardcopy would be unduly burdensome, then the employer should begin its ap-plication and testing process to enable its use of the IRS e-filing portal and should evaluate the requirements necessary for pro-viding the forms in electronic version to each individual.

Even though there are no specific ACA penalties that apply to these informational returns, the general IRS penal-ties associated with informa-tional returns will still apply. For example, a penalty for failure to file with the IRS can be assessed at $100 per return, up to $1,500,000. In addition, a penalty for failure to furnish statements to individuals can be assessed at $100 per return,

up to $1,500,000. Bottom line, encourage your employer clients to begin evaluating their circumstances to plan ahead for new ACA reporting requirements.

Kristy Buckley is a part-ner in the Bozeman office of Crowley Fleck PLLP, practicing in employee benefits law. The Affordable Care Act compli-ance team at Crowley includes Buckley and her partner, Sarah

Loble. If you have questions about Affordable Care Act com-pliance, you can contact Buckley at 406-522-4522 or kbuckley@crowleyfleck.com or Loble at 406-457-2033 or sloble@ crowleyfleck.com.

Reporting, from page 20

Mark your calendars!

The Alexander Blewett III School of Law at the University of Montana invites you to participate in the

On-Campus Interview Weekend

Interview 2nd and 3rd year students

for intern, law clerk, and associate positions during our semi-annual

on-campusinterview program.

Career ServicesTo advertise a position and set up an interview schedule:

VISIT: http://www.umt.edu/law/careerservices/employers/default.phpLOG ONTO SYMPLICITY: https://law-umt-csm.symplicity.com

EMAIL: jennifer.ford@umontana.eduorCALL:406.243.5598

Fall 2015

Page 27www.montanabar.org

What are the benefits of joining Modest Means?While you are not required to accept a particular case, there are certainly benefits! You are covered by the Montana Legal Services malpractice insurance, when you spend 50 hours on Modest Means and / or Pro Bono work (you’ll need to track your time and let us know), you will receive a free CLE certificate to attend any State Bar sponsored CLE. State Bar Bookstore Law Manuals are available to you at a discount and attorney mentors can be provided. If you’re unfamiliar with a particular type of case, Modest Means can provide you with an experienced attorney mentor to help you expand your knowledge.

Would you like to boost your income while serving low- and moderate-income Montanans?We invite you to participate in the Modest Means program {which the State Bar sponsors}. If you aren’t familiar with Modest Means, it’s a reduced-fee civil representation program. When Montana Legal Services is unable to serve a client due to a conflict of interest, a lack of available assistance, or if client income is slightly above Montana Legal Services Association guidelines, they refer that person to the State Bar. We will then refer them to attorneys like you.

Questions?Please email: Kathie Lynch at klynch@montanabar.org or Erin Farris at erin@montanabar.orgYou can also call us at 442-7660.

#Are You Interested in Joining The Modest Means Program?To get started, please fill in your contact info and mail to: Modest Means, State Bar of Montana, PO Box 577, Helena, MT 59624.

You can also email your contact info to Kathie Lynch -- klynch@montanabar.org

Name:____________________________________________________________________

Address: __________________________________________________________________

City, State: _________________________________________________________________

Email: ____________________________________________________________________

Page 28 September 2015

Thomas Martin Ask was born July 19, 1925, in Forsyth and died July 18, 2015, in Polson, just short of his 90th birthday. He was raised on a ranch in eastern Montana, and from a very early age, helped his father with cattle and farm chores.

After graduating from high school, he enlisted in the Army and was sent to, what was known in World War II, as the Asian Theater of War. As the war ended, he was stationed in Japan for

two years returning to civilian life with the rank of master sergeant (at age 19!).

Tom then enrolled at the University of Montana, earned an undergraduate degree in business and graduated from law school in 1953. Tom began his law practice in Roundup and con-tinued it there for 40 years. He married Margaret Dean (Peg) and together they had four children who were his greatest joy.

In his professional life he considered his finest achieve-ment to be his contribution as a member of the Constitutional Convention. His service as a member of its committee on local government will affect the state of Montana for years to come. His time in Roundup included 12 years as county attorney and several as assistant county attorney, followed by years as a de-fense attorney. (He often found himself defending some of the same people he once prosecuted.)

He loved the game of golf and was instrumental in chang-ing Roundup’s old sand greens into a very nice nine hole, grass

greens course. His other hobby was fishing, and his once a year trip to Canada or Alaska with several friends was a special time for him.

When it was time to retire, Tom and Peg moved to Polson to a home on Flathead Lake where Tom enjoyed years of golfing and fishing. It was a place where he invited friends and family and especially grandchildren and great-grandchildren.

Tom was preceded in death by his parents, two sisters, two nephews, and a grand nephew.

He is survived by his wife Margaret, four children, Catherine Hasskamp (Charles), Thomas Dean Ask (Peggy), Richard Brearley Ask (Tanya), Carolyn Rohrer (Steven), 10 grand-children, Rebecca Thompson (Evan), Josh Hasskamp (Jenna), Adam Hasskamp, Kim Leiser (Jake), Kate Moffet (Ryan), James Ask (Mary Jane), Ben Ask (Aimee), Signe Ask (Dana Driggs), Megan Rohrer, Molly Rohrer, and 10 great-grandchildren, Mason and Tanner Leiser, Ali and Regan Moffet, Betsy and James Ask, Caleb and Liam Ask, Brearley and Torstein Driggs.

Memories and condolences may be sent to the family at www.thelakefuneralhomeandcrematory.com.

Memorials may be sent to St. Andrew’s Episcopal Church, 110 6th Avenue East, Polson, MT 59860; Partners in Home Care Hospice, #1 14th Avenue West, Polson, MT 59860 or American Cancer.org.

Arrangements are under the direction of The Lake Funeral Home and Crematory.

Obituaries

Ask was attorney for 40 years, Con-Con delegate

Joseph Reber

LOS ANGELES – Joseph Edward Reber was born Aug. 9, 1940, in Butte, the eldest son of Joe and Terry Reber. Joe was a joyful and enthusiastic lover of life who was taken way too soon by the ravages of Alzheimer’s disease.

Joe is survived by the love of his life, Nikki Harjo, whom he met in 2002. They married in 2008 and he adopt-ed her daughter Rebecca. Nikki lovingly cared for Joe in a very special way as his disease progressed. Even during those difficult years Nikki remained his most lovely wife and dancing partner. She was truly a gift to him from God.

Joe spent his early years at University of Montana where he became a member of the Sigma Nu Fraternity and then a graduate of the U

of M Law School. He practiced law in Helena where he became a member of the State Historical Society, interested in the pres-ervation of historical buildings, especially the Diamond Block.

Joe acquired the Broadwater Cupola from atop the fa-mous Hotel and in July of 2002, with his dad present, Reber Broadwater Cupola Park was dedicated to the city of Helena, preserving Helena history. Joe was also a member of the Montana National Guard. He later advanced his education with a Tax Law degree from New York University, and moved to Los

Angeles where he had a private law practice.Throughout his life Joe was a collector. As a child he

amassed a collection of stamps and later 78 RPM jazz records. In high school his love of history drew him to collecting antique guns of the Civil War and the Old West. As an adult his love and involvement with the arts led him to be a collector of art.

Joe was a member of many boards of director that were involved with his eclectic interests music, the arts and history.

He had a 1952 MG sports car that he loved and he gave thrilling rides to his nieces and nephews, through the years. His nieces and nephews called him “Uncle Gum,” for the sticks of gum he would hand out lovingly to them. He was a thoughtful uncle and cousin, and sent cards and letters of encouragement to them throughout his life.

He is survived by his loving wife Nikki; his daughter Rebecca and his siblings, Bobbie Corette of Bigfork, Susan Orr and Dianna Riley of Missoula, and Bryant Reber of Denver. He is also survived by many cousins, nieces and nephews and the many friends he made through the years. All will carry fond memories and he will be missed by all.

Nikki would like to thank Bentley Manor Dementia Care in Los Angeles for their attention to Joe and also Roze Room Hospice. Any memorials can be sent to Opica Adult Day Care, where Joe loved to paint. The Website address is opica.org/modx/.

Reber

Ask

Page 29www.montanabar.org

Support for the bill sponsored by Sen. Daines is a great place to start.

This article is not intended and should not be relied upon to provide legal advice. The authors represent the Tribe in Northern Arapaho Tribe v. Burwell, a challenge to these IRS regulations. They can be contacted through Baldwin, Crocker & Rudd, P.C. (bcrattor-neys.com), a firm emphasizing the practice of Indian law.

ENDNOTES:1 . ACA §1401 et seq., 26 U.S.C. 36B.2 . ACA §1402(b)(2), 42 U.S.C. §18071.3 . ACA §1402(d), 42 U.S.C. §18071.4 . See Committee Report, Indian Health Care Improvement Act (IHCIA) (Congress

expressly recognizes “the Federal Government’s long-standing obligations under law-ful treaties with the Indian nations for the provision to them of health care services”); 25 U.S.C. §1602 (Indian health care laws spring from the United States’ “special trust responsibilities and legal obligations to Indians”).

5 . ACA §10221; 25 U.S.C. §1601 et seq.6 . ACA §1501(b).7 . ACA §1402(d).8 . ACA §2902.9 . ACA §3314.10 . ACA §1311(D).11 . ACA §2951, §3505(a).12 . ACA §4001 et seq, §5101 et seq.13 . ACA §9021.14 . ACA §5000A, 26 U.S.C. §5000A15 . ACA §5000A, 26 U.S.C. §5000A.16 . ACA §1513, 26 U.S.C. §4980H

17 . 26 U.S.C.A. §4980H(c)(2)(A) as amended by §1513 of the Patient Protection and Affordable Care Act.

18 . On Feb. 12, 2014, the IRS promulgated regulation 26 C.F.R. §54.4980H-1 within its final regulations regarding “Shared Responsibility for Employers regarding Health Coverage.” The regulation includes Indian tribal governments, agencies or instrumen-talities as a “Governmental entity.” The regulation took effect on January 1, 2015. See F.R. Vol. 79, No. 29, 8543 at 8544, 8577-80 (Feb. 12, 2014).

19 . On March 10, 2014, the IRS promulgated regulation 26 C.F.R. §301.6056-1 within its final regulations regarding “Information Reporting by Applicable Large Employers on Health Insurance Coverage Offered under EmployerSponsored Plans.” This final regulation incorporates the definition from 26 C.F.R. §54.4980H-1(a)(4) and 26 U.S.C. §4980H(c)(2), which establish a Large Employer to be “... an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year.” The regulation includes Indian tribal governments and subdivisions as “Governmental units” subject to the Large Employer mandate. (The IRS has reserved for a later day its definition of agency or instrumentality.) This regulation also took effect on January 1, 2015. See F.R. Vol. 79, No. 46, 13231 at 13232, 13234, and 13247-48 (March 10, 2014).

20 . On March 10, 2014, the IRS promulgated regulation 26 C.F.R. §1.6055-1 within its final regulations regarding “Information Reporting of Minimal Essential Coverage.” These regulations set out guidance for providers of minimal essential coverage, includ-ing employers. It includes Indian tribal governments as a “government unit.” (The IRS has reserved for a later date the definition of agency or instrumentality of that unit.) This regulation also took effect on January 1, 2015. See F.R. Vol. 79, No. 46, 13220 at 13222 and 13226, 13227 (March 10, 2014).

21 . Available at http://www.irs.gov/uac/Newsroom/QuestionsandAnswerson

EmployerSharedResponsibilityProvisionsUndertheAffordableCareAct. 22 . 26 C.F.R. §54.4980H-1(a)(23); Treas. Reg. §54.4980H-1. 23 . Department of Treasury, Information Reporting by Applicable Large

Employers on Health Insurance Coverage Offered Under EmployerSponsored Plans, F.R. Vol. 79, No. 46, 13231, 13234 (Preamble) (VII)(F) (March 10, 2014) (noting that “the regulations do not define the term agency or instrumentality of a governmental unit for the purpose of section 6056 ...); see also 26 C.F.R. §301.6056-1, Treas. Reg. §301.6056-1(b)(7)-(8) (reserving on the definition of agency or instrumentality of a government unit).

24 . See ACA §5000A(e)(1)(B), 26 U.S.C. §36B(c)(2)(C)(i).25 . ACA §1513, 26 U.S.C. §4980H.

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Job Postings and Classified AdvertisementsCLASSIFIEDS Contact | Joe Menden at jmenden@montanabar.org or call him at (406) 447-2200.

ATTORNEYS

DEPUTY COUNTY ATTORNEY: Immediate vacancy. Full-time permanent Deputy County Attorney position with the Custer County Attorney’s Office, Miles City. Juris Doctor degree from accred-ited law school, licensed to practice in Montana. Salary up to $70,957.31 based on 40-hour work week, dependent on experience. Experience preferred. Excellent benefits. For job description and application form please contact Cindy Erickson at Job Service in Miles City at (406) 232-8349. Applications accepted until position filled. Request accommodation from Custer County Attorney Office, 1010 Main St., (406) 874-3310 or fax (406) 874-3450. ADA/EEO.

ASSOCIATE GENERAL COUNSEL: Avitus Group, a professional employer orga-nization, seeks an Associate General Counsel to support its legal department. This position will encompass a broad range of legal responsibilities, including (1) significant employment litigation management; (2) commercial contract drafting and review; (3) regulatory compliance; (4) M&A; and (5) providing general support for the multiple lines of business offered by Avitus Group across all 50 states. One to four years’ experi-ence is preferred, but will consider recent law school graduates with excep-tional work history. Please submit your resume, cover letter, and writing sample (10 pages or less) to careers@avitus-group.com. This position is located in Billings, MT, and applicants are encour-aged to visit www.avitusgroup.com.

ASSOCIATE ATTORNEY: Brown Law Firm, P.C., with offices in Billings and Missoula, is seeking an associate with 0 - 5 years’ experience for its office in Billings. The position will concentrate on civil de-fense litigation. We offer a competitive salary, benefit package including profit sharing and 401(K). Please send a letter of application and resume to Brown Law

Firm, P.C., Attn: Teresa Delvo, P. O. Box 849, Billings, MT 59103-0849. All appli-cations will be confidential.CHIEF PROSECUTOR (Assistant City Attorney): The City of Bozeman seeks an experienced attorney with a lively work ethic, the quality to lead, and an affinity for change to lead the City’s criminal prosecution services. F/T career position w/ excellent benefits. Criminal law ex-perienced required. $74,902 – $82,310 per year as earned DOQ. PREFERRED APPLICATION DEADLINE: 5 p.m. Monday, September 15, 2014. Position open until filled. EOE/ADA/Vet Pref. See the full an-nouncement at https://www.bozeman.net/jobs. Inquiries can be emailed to gsullivan@bozeman.net.

BOZEMAN ATTORNEY: General practice law and litigation firm in Bozeman seeking an attorney for growing case load. 5+ years’ experience preferred. Compensation based on qualifications and abilities. Please send resume and writing sample to classifieds@mon-tanabar.org, with a subject line of Box 1509-01.

CIVIL DEPUTY CITY ATTORNEY: City of Billings is seeking a Deputy City Attorney to perform a variety of legal services related to municipal civil work and may occasionally prepare and prosecute misdemeanor criminal cases in Municipal Court. Starting Salary: $69,025.00 - $72,428.00 annually (DOE), excellent benefits, including annual raises based on merit until the top of the position pay scale is reached (cur-rently $92,461.82 annually). Minimum Qualifications: Juris doctorate from an American Bar Association approved law school; Three years of increas-ingly responsible civil legal experience; Municipal or other government civil legal experienced preferred; prosecuto-rial experience preferred; member in good standing with the Montana State Bar; licensed to practice law in state and federal courts in Montana. Application deadline: 5 p.m. Monday, Sept. 25, 2015.

For application and complete details please go online at www.ci.billings.mt.us or contact Human Resources at (406) 237-6210.

ATTORNEY: Well established Bozeman law firm seeking a tax LLM with 0-3 years’ experience with emphasis in real estate, commercial law, estate planning and probate. Potential for quick ad-vancement to the right candidate. Send cover letter, resume and law school transcript to: Drysdale, McLean & Willett, PLLP, Attn: Andrew J. Willett, 2066 Stadium Drive, Suite 101, Bozeman, MT 59715, or email: awillett@dmwlawmt.com.

PUBLIC DEFENDER: The Fort Peck Tribes are seeking an attorney for the full-time position of Public Defender in the Fort Peck Tribal Court. The position is in Poplar, MT. Candidates must be admit-ted to practice in any jurisdiction. Salary DOE. The job description is available at the HR office at fortpecktribes.org or contact Rita Weeks , rweeks@fptc.org.

PARALEGALS/LEGAL ASSISTANTS

EXPERIENCED PARALEGAL: ALPS Corporation is looking for a Paralegal with a minimum of 5 but preferably 10 years progressive experience in a litigation environment. This position will be in our claims department which is responsible for reviewing, monitoring, and negotiating the resolution of legal malpractice claims against our insureds. Excellent communication, attn. to detail, timelines and computer skills required. Focus on the finer details is a must. If you are motivated, able to manage a fast-paced workload and can add value to multiple projects simultaneously this could be the right position for you. Must work in our Missoula, Montana office. DOE, EEO

PARALEGAL/LEGAL ASSISTANT:  Well-established law firm on beautiful Flathead Lake seeks half-time (20-25

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Job Postings and Classified Advertisements

hours per week) paralegal/legal assis-tant.  The position could become full-time in the future.  Applicant must have excellent communication, clerical, orga-nizational and personal skills and prior legal experience.  Litigation experience and paralegal certification preferred, but not required.  Salary and benefits depending on experience and qualifica-tions, with opportunity for increased salary.  Send cover letter and resume to Turnage Mercer & Wall, PLLP, Box 460, Polson, MT 59860, or an email to Chuck Wall at chuckwall@centurytel.net.

ATTORNEY SUPPORT/RESEARCH/WRITINGDATA ANALYSIS / LITIGATION SUPPORT: Extract, analyze, summarize large data sets; Independent attestation of data accuracy; Professional CPA presenta-tion of data on behalf of counsel; Expert testimony regarding data collection and reporting methodology; Agreed upon procedures. 15 years financial experi-ence including: Auditor for Deloitte & Touche (Seattle Office); Litigation Support Branch Chief; Work with KFLD, DoJ, and the Pentagon; Comptroller for the Montana Army National Guard; Contracting Officer (PCO); Controller for $1B insurance company; Director of Financial Reporting for $1B hospital; Operations Officer for $3B government contracting group; Member of AICPA Information Management & Technology Assurance practice group; Member of the Montana State Society of CPAs; Level 3 DAWIA certification in govern-ment contracting; Data base developer for $3B government financial services organization. DATA WORKS OF HELENA, P.C., 7 West 6th Avenue, #517, Helena MT 59601; brad@dataworksofhelena.com; (406) 457-5399.

ENHANCE YOUR PRACTICE with help from an AV-rated attorney with 33 years of broad-based experience. I can research, write and/or edit your trial or appellate briefs, analyze legal issues or otherwise assist with litigation. Please visit my new website at www.denev-ilegal.com to learn more. mdenevi@

bresnan.net, 406-210-1133

RESEARCH, WRITING, SUPPORT: Experienced attorneys at Strickland & Baldwin, PLLP, offer legal research, writing, and support. Wilton Strickland focuses on civil litigation; Tim Baldwin focuses on criminal matters. We make practicing law easy, profitable, and enjoyable for you. To learn more, read legal articles, and obtain CLE credits, visit www.mylegalwriting.com.

COMPLICATED CASE? I can help you sort through issues, design a strategy, and write excellent briefs, at either the trial or appellate level. 17+ years experi-ence in state and federal courts, includ-ing 5 years teaching at UM Law School and 1 year clerking for Hon. D.W. Molloy. Let me help you help your clients. Beth Brennan, Brennan Law & Mediation, 406-240-0145, babrennan@gmail.com.

BUSY PRACTICE? I can help. Former MSC law clerk and UM Law honors graduate available for all types of contract work, including legal/factual research, brief writing, court/depo ap-pearances, pre/post trial jury investiga-tions, and document review. For more information, visit www.meguirelaw.com; e-mail robin@meguirelaw.com; or call 406-442-8317.

OFFICE SPACE/SHARESTEVENSVILLE: Professional office build-ing downtown on Main Street available for sale or lease. Detached 1 story build-ing with 10-car parking lot. Approx. 2,800 sq. ft. leasable space includes full first floor and basement. Ready to oc-cupy modern offices, conference room and reception/waiting room. Central heat, a/c, lovely landscaping. Perfect for small firm or growing solo practitioner. Contact helldorb@stjohns.edu or call 917-282-9023MODERN PROFESSIONAL SUITE OF OFFICES: Desirable Cottonwood Business Park (off McHugh & Custer). Turnkey second floor with 4 upscale roomy offices (1 has kitchenette & sink). First floor shared waiting area. Classy 2012 construction comes with free

parking. Anne, anne@am-counsel.com. 406-594-1717.

MEDIATIONEXPERIENCED MEDIATOR AND ARBITRATOR: J. Michael Young, retired Great Falls Attorney. Contact at 406-868-9666 or myoung@gfmtlaw.com

MEDIATIONS & ARBITRATIONS: As former executive vice president and chief counsel of ninth largest private em-ployer in the U.S. and with over 45 years legal experience, my practice focuses on mediation and arbitration. Available as a neutral resource for complex commercial, class-action, ERISA and governmental agency disputes. Detail of experience, professional associations and cases provided on request. Francis J. (Hank) Raucci, 406-442-8560 or www.gsjw.com.

CONSULTANTS & EXPERTSFORENSIC DOCUMENT EXAMINER: Trained by the U.S. Secret Service and U.S. Postal Inspection Crime Lab. Retired from the Eugene, Ore., P.D. Qualified in state and federal courts. Certified by the American Board of forensic Document Examiners. Full-service laboratory for handwriting, ink and paper compari-sons. Contact Jim Green, Eugene, Ore.; 888-485-0832. Website at www.docu-mentexaminer.info. COMPUTER FORENSICS, DATA RECOVERY, E-DISCOVERY: Retrieval and examina-tion of computer and electronically stored evidence by an internationally recognized computer forensics prac-titioner. Certified by the International Association of Computer Investigative Specialists (IACIS) as a Certified Forensic Computer Examiner. More than 15 years of experience. Qualified as an expert in Montana and United States District Courts. Practice limited to civil and ad-ministrative matters. Preliminary review, general advice, and technical questions are complimentary. Jimmy Weg, CFCE, Weg Computer Forensics LLC, 512 S. Roberts, Helena MT 59601; (406) 449-0565 (evenings); jimmyweg@yahoo.com; www.wegcomputerforensics.com.

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State Bar of MontanaP.O. Box 577Helena MT 59624

MontanaLawyerState Bar

of Montana