Montana Lawyer State Bar of Montana August 2015 | Vol. 42, No. 9 ALPS founder Robert Minto wins Jameson Award Judge Townsend wins Karla Gray Equal Justice Award Missoula lawyers win Haight Pro Bono Award ALSO IN THIS EDITION > Justice Wheat announces retirement from Montana Supreme Court > Former U.S. Attorney Cotter hired as new ODC chief disciplinary counsel > Could Veterans Treatment Court be right for your client? 1 Montana Lawyer INDEX 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 August 2017 406-442-7763. E-mail: [email protected] State Bar Officers President Bruce M. Spencer, Helena President-Elect Cover Stories Leslie Halligan, Missoula Secretary-Treasurer State Bar Annual Award Winners ........................................................13 Jason Holden, Great Falls Jameson Award: Robert Minto .......................................................14 Immediate Past President Matthew Thiel, Missoula Pro Bono Award: Travis Dye and Helia Jazayeri ........................16 Chair of the Board Juli Pierce, Billings Equal Justice Award: Judge Karen Townsend ...........................17 Board of Trustees Elizabeth Brennan, Missoula Brian C. Smith, Missoula Feature Stories David Steele, Missoula Kaylan Minor, Kalispell Justice Wheat Announces Retirement ..............................................11 Jessica Polan, Anaconda Channing Hartelius, Great Falls Mistitling of US Magistrate Judges Remains a Problem ..............22 Paul Haffeman, Great Falls Kent Sipe, Roundup Is Veterans Treatment Court Right for Your Client? ......................24 Mike Talia, Helena Kate Ellis, Helena Health Care Legislation in 2017 Montana Legislature .................28 J. Stuart Segrest, Helena Christopher Gray, Bozeman Opinion: Teaching Girls to Lead ...........................................................30 Lynda White, Bozeman Ross McLinden, Billings Eric Nord, Billings Juli Pierce, Billings Regular Features ABA Delegates Member News ...............................................................................................4 Damon L. Gannett, Billings Shane Vannatta, Missoula State Bar News ...............................................................................................8 Eli Patten, Billings Court Orders ...................................................................................................9 Montana Lawyer Staff Publisher | Christopher L. Manos Law School News .......................................................................................32 Editor | Joe Menden 406-447-2200; fax: 442-7763 News and Notes .........................................................................................33 email: [email protected] Subscriptions are a benefit of State Bar In Memoriam ...............................................................................................35 membership. Job Postings/Classifieds ..........................................................................38 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. Page 2 August 2017 President-Elect’s Message | President-Elect Leslie Halligan Year ahead holds challenges, opportunities I recently received an invitation to attend and with facilitation (gratis) by ALPS Executive a presentation by Lillian Alvernaz, a Montana Vice-President Chris Newbold, the trustees law student who received the Margery Hunter gathered with other important stakeholders, Dean Brown Assistantship, a grant created in honor of Paul Kirgis of the Blewett School of Law at the Professor Brown to encourage students to explore University of Montana; Alison Paul of Montana areas of the law--Indian law, natural resources, Legal Services; New Lawyers Section Chair Meri and public lands, in which she specialized. Lillian, Althauser; and Montana Justice Foundation as the 24th recipient, will present on “Effective Executive Director Niki Zupanic, to discuss chal- Advocacy for Addressing Domestic Violence lenges to the profession, issues within the organi- Throughout Indian Country in Montana,” a topic zation, and advances that will change the practice she advanced in her application. As I viewed the or delivery of legal services. invitation, I was struck by the photos of both We arrived at two primary goals for the Professor Brown and Lillian and the differences upcoming year. First, with the retirement of The Honorable Leslie that each image conveyed. Professor Brown, Executive Director Chris Manos, the board is Halligan of Missoula is consistent with how I knew her, looks calm and focused on securing a qualified executive director. a 4th Judicial District determined, filled with wisdom, a quiet force Presently the hiring committee has reviewed more judge. Before her ap- who left a lasting impact on Native American than 20 applications and is conducting initial pointment as district Tribes, colleagues and the students she taught interviews, vetting applicants according to skills judge, she served as and mentored. Lillian’s, with her bright eyes and and traits identified as essential by the Trustees. a standing master in enthusiastic smile, conveys a youthful energy and In August, the full board will meet to interview the 4th Judicial District determination, eager to venture into a legal career the top applicants, with a goal of having a new and as a deputy county focused on improving lives. executive director selected by the Annual Meeting attorney in Missoula I was excited to learn about Lillian’s study in September. Second, the trustees, after thorough County. and recommendations, and know that Professor review of the organization’s budgetary projections Brown would be pleased that another student may over the next three to five years, voted to petition have found a path to a meaningful legal career. the Montana Supreme Court for a modest dues While this event has very little to do with my cur- increase to adequately fund the bar’s operating rent work, it energizes me and reminds me of the costs. The details of these projections are more importance of the opportunities to honor distin- thoroughly addressed in the bar’s recently filed guished leaders like Professor Brown, to create report to the Supreme Court. The petition will pathways for student development and leadership, seek to increase the dues for active bar members and ultimately provide opportunities to advance by an amount ranging from $85 to $100, with the law and improve our communities. Lillian’s proportionally lesser increases in the other mem- story also reminds me of the value of relationships bership classes, $65 for inactive and $25 for senior that we share, the value of the core group of at- members. torneys that shepherds this assistantship, and how As president-elect, I am honored to serve the efforts towards building relationships can improve unified bar and to have an opportunity to work the quality of our work and our lives. Now as the with the diverse, intelligent, creative and commit- State Bar’s president-elect, I hope to encourage ted trustees who you have elected, as well as the other members of our bar to become involved in many organizations and groups involved in the le- activities, sections, groups or projects that may gal community. Together, we will work to advance provide similar opportunities to advance the law the rule of law and address the ever-changing legal and to improve our communities. landscape, while recognizing the unique aspects As president-elect, I intend on keeping mem- of the practice of law in Montana. During my bers informed and to celebrate our achievements. tenure, I look forward to creating an atmosphere Recently, the Board of Trustees participated in our that fosters opportunities to deepen our relation- annual strategic planning session. Under the cover ships, with the ultimate goal of advancing the legal of pines at the Double Arrow Lodge in Seeley Lake profession. www.montanabar.org Page 3 Member and Montana News Clark and Henkel join Terrazas in Missoula addition of Nathaniel T. Block as an associate attorney. Block was born and raised in Oakland, California, where Elizabeth Clark and Dana Henkel have joined Robert he cultivated a love for all things outdoors. He attended San Terrazas to form Terrazas Clark Henkel, PC in Missoula. The Jose State University and graduated with a bachelor’s degree firm continues the practice of Terrazas Law Offices in litigation in political science. While an undergraduate, he worked at the of personal injury, employment, complex divorce and child California Legislature and gained keen insight into the legisla- custody, real estate, probate, and criminal tive process. His passion for the outdoors and the law led him defense as well as estate planning, business to the University of Montana School of Law where he graduated formations, and contracts. in 2014. Henkel is a 2012 graduate of Southern During law school Block interned at the Montana Methodist University School of Law and Department of Natural Resources and practiced civil litigation and criminal de- Conservation, where he worked on forestry, fense in Great Falls before joining Terrazas land management, and wildfire suppres- Law Offices in 2015. She will continue to sion issues. He is interested in and has practice complex litigation and expands the written about federal land management Henkel firm’s criminal defense practice. issues. During the course of his time with Clark joined Terrazas Law Offices as a the DNRC, he worked closely with state and legal assistant in 2006, and has practiced federal agencies to reach positive outcomes with the firm since her admission to the bar for all concerned. in 2012. In 2016, she received her Masters Block After graduation, Nathan was hired by of Law in Taxation from the University of Oracle America and moved to Bozeman. Washington School of Law. Her practice With a background in computer systems, he worked with expands the firm’s estate planning, probate, Oracle’s Legal Department in the negotiation of Cloud Service business formation, business succession Agreements and Oracle Master Agreements. Oracle provided planning, and real estate transactions with a Nathan with valuable experience both negotiating and prepar- focus on tax planning and advising. ing commercial contracts. Clark Terrazas Clark Henkel PC can be reached Block left Oracle to join Guza, Nesbitt, & Putzier, PLLC in at 1923 S. Higgins Ave. Missoula, MT, 59801; 406-541-2550; or May 2017. He will be applying the skills he has learned in life, [email protected]. school and work to his position, focusing on transactions, litiga- tion defense and municipalities. Wallace to head new Helena branch office You can contact him at: Guza, Nesbitt & Putzier, PLLC, 25 of Odegaard Braukmann Law Apex Drive, Suite A, Bozeman, MT, 59718; phone, 406-586- 2228; fax, 406-585-0893; or email, [email protected]. Odegaard Braukmann Law, PLLC, in Billings has an- Winderl joins Markette & Chouinard in Hamilton nounced that Lucas Wallace has joined the firm. Wallace will head the firm’s opening of a branch office in Helena, located in the Power Building, The law firm of Markette & Chouinard P.C. has announced 7 West Sixth Ave., Suite 517. Wallace will that Megan S. Winderl has joined the firm as an associate attor- focus primarily on representing injured ney. Winderl originally hails from the Bitterroot Valley, where workers in workers’ compensation claims. she grew up on a registered cattle ranch. Wallace is a 2003 graduate of the In 2003, Winderl graduated from Montana State University University of Wyoming and a 2014 gradu- with a Bachelor of Science degree in animal science. In ate of the University of Wyoming College December 2016, she earned her Juris Doctor degree from the of Law. He is licensed in the state and University Of Montana School Of Law. In law school, she par- federal courts for Montana, Wyoming, and ticipated on the Jessup International Moot Court Team, in ad- Wallace North Dakota. Prior to joining Odegaard dition to serving as co-president of the Rural Advocacy League, Braukmann Law, PLLC, Wallace was an as- and class representative on the Environmental Law Group. She sociate attorney with Crowley Fleck, PLLP, where he practiced also served as a law clerk for Markette & Chouinard, P.C., and in the areas of workers’ compensation defense and insurance clinical intern for Mark Phares of the Department of Natural defense. Wallace can be reached at [email protected] or Resources and Conservation. 406-457-5537. She is admitted to practice in all Montana courts, and her practice will emphasize water law, agriculture law, real estate, Block joins Bozeman firm Guza, Nesbitt & Putzier administrative law, and business transactions. Markette & Chouinard P.C. is a Hamilton-based law firm and represents Guza, Nesbitt & Putzier, PLLC, a full service litigation, fam- clients throughout the region. ily law and transactional law firm is pleased to announce the Page 4 August 2017 Member and Montana News Klanke hired as staff attorney for MCADSV’s The Montana Coalition Against Domestic and Sexual Sexual Assault Legal Services project Violence is comprised of over 50 member programs across Montana that provide direct services to victims and survivors The Montana Coalition Against Domestic and Sexual of domestic and sexual violence and their children. In addition, Violence (MCADSV) has hired Patricia Klanke as the staff at- MCADSV membership includes other nonprofit and govern- torney of its Sexual Assault Legal Services project. ment organizations and individuals (professionals and mem- This statewide program staffs two attor- bers of the general public) who are interested in preventing neys and provides civil legal services to sur- and appropriately responding to domestic and sexual violence vivors of sexual assault throughout the state in our communities, and in supporting survivor dignity and of Montana. Matters handled by this project autonomy. For more information, visit MCADSV’s website: include orders of protection, housing, edu- www.mcadsv.com. cational advocacy, crime victim rights, and a Bilyeu joins as shareholder at Jackson, variety of other legal issues faced by survi- vors of sexual violence. Murdo & Grant law firm in Helena Klanke attended the George Washington University Law School in Washington, Nathan Bilyeu has joined the law firm of Jackson, Murdo & Klanke D.C., where she worked with Legal Services Grant, P.C. of Northern Virginia to provide civil legal representation to Bilyeu joins the firm as a shareholder domestic violence survivors. After graduation, she clerked for focused on business and employment Chief Justice Mike McGrath and Justice Laurie McKinnon of law, general civil litigation, and municipal the Montana Supreme Court. Most recently, she worked as a finance. civil defense litigator at the Drake Law Firm, P.C. in Helena. Bilyeu graduated with honors from The She is also an active member of the 1st Judicial District Pro George Washington University Law School Bono Committee and has served as the coordinator of the in 2013. Prior to attending law school, he monthly Limited Scope Advice Clinic in conjunction with earned bachelor’s and master’s degrees Montana Legal Services Association in political science from the University of Bilyeu Montana. www.montanabar.org Page 5 Member and Montana News Boland Aarab law firm opens in Great Falls Andy Utick, at the Utick Law Firm in Helena. The Kalispell firm is now her primary practice. Caitlin Boland Aarab and Samir Faerevik Aarab announce the You can reach her at Fox Law Firm, P.O. Box 9621, Kalispell, Aug. 1, 2017, opening of their firm, Boland Aarab PLLP, in Great MT 59904; [email protected]; or www.mtfoxlaw.com. Falls. The firm emphasizes consumer protection, personal injury, and appellate work. Additionally, Caitlin and Sam are both CJA Coleman takes position with Google panel attorneys, contract attorneys with the State Office of the Public Defender, and mem- Ryan Coleman has accepted a position with bers of the 9th Circuit’s Pro Bono program. Google, where he will be negotiating commer- Caitlin is a Great Falls native. She graduated cial cloud transactions for Google’s Platform as from Georgetown University, and completed a Service (PaaS) business. her master’s degree at the University of St Coleman will be based in Google’s newly Andrews in Scotland. She received her JD from opened Chicago office. He is a 2007 gradu- the University of Montana. After law school, ate of the University of Montana School of she completed judicial clerkships with the Journalism, and a 2010 graduate of the Boland Aarab Honorable Patricia O. Cotter of the Montana University of Montana School of Law’s joint Coleman Supreme Court and Chief Judge Sidney R. JD/MBA program. Thomas of the 9th Circuit Court of Appeals. Sam was raised in Norway and Morocco. Montana Lawyer accepting article proposals He graduated from the University of St Andrews with an undergraduate and a master’s The Montana Lawyer is always accepting proposals for substan- degree. He earned his JD from the University tive, practice-oriented articles on any topic. of Montana. Following law school, Sam If you have an article you would like to propose, or you would clerked for Chief Justice Mike McGrath of the like to request a manuscript guideline, please contact editor Joe Montana Supreme Court and Yellowstone Menden at 406-447-2200 or [email protected]. Aarab County District Judge Gregory Todd. Boland Aarab PLLP is located at 501 Central Ave., Suite 207, Great Falls, MT 59401. You can reach them at 406-315-3737, Caitlin at [email protected], and Sam at [email protected]. For more information, please visit www. Have Member News to Submit? bolandaarab.com. Do you have news you would like to share Fox opens law office in Kalispell with the Montana legal community? The Montana Lawyer welcomes submissions from Andrea Fox announces the opening of her Montana attorneys about new jobs, honors, new firm, Fox Law Firm in Kalispell. publications, and other accomplishments, A native of Helena, Fox earned her under- graduate and law degrees from the University which are free to submit. of Montana. Her areas of practice are family Please send member news and photo sub- law, collaborative law, mediation, personal missions to [email protected]. Email or injury law, contract legal services and simple call 406-447-2200 with any questions about wills. She is a founding member of Montana submissions. Collaborative Professionals. Fox Fox still practices part time with her father, 406-683-6525 Montana’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 6 August 2017 Member and Montana News Joscelyn releases series of legal thrillers Helena lawyer Alan Joscelyn has released with some stock certificates the client had signed three books in a series of legal thriller novels. over to him. The package launches Miles on a The stories follow Miles Patrick, a lawyer cross-country race against time and into the who hates smartphones, likes jazz and stray crosshairs of someone who doesn’t want him to cats, and gets his legal strategy from a group of find the answers he is looking for. retired lawyers who meet for coffee, cards and In “Heavy Metal” (February 2017), Miles’ gossip in the backroom of a bar he owns down- pre-honeymoon expedition with his fiancée, stairs from his law offices. Casie, gets derailed when Miles is pulled into It’s immediately easy to see some similari- intrigue involving the long-ago history of his ties between Miles – a Montana lawyer whose Venetian palazzo, putting their lives and future offices are on Helena’s Last Chance Gulch – and in jeopardy. Joscelyn, who until four years ago was a partner In “Pipe Dreams” (July 2017), Miles is per- at Gough, Shanahan, Johnson & Waterman, suaded to travel to an Irish village where he has located on the Gulch. become the owner of an old manor house. But Joscelyn said the books, which he wrote over his arrival there draws him into a deadly intrigue the past few years, arise out of experiences from involving an artifact whose origins are lost in his practice, with characters also drawn from antiquity, and confronts him with the compro- his experiences – some of whom you might mising history of his own Irish ancestors. recognize. All three books are currently available in In the first book, “About Spud” (September paperback – the first two also in ePub format – at 2016), Miles receives a mysterious letter from a lulu.com. All three books soon will be available in former client who died many years ago – along Kindle and paperback formats at amazon.com. November 3-4, 2017 DoubleTree Hotel Presents the Missoula, MT 65TH ANNUAL MONTANA View the full agenda and register online at umt.edu/tax-institute. TAX INSTITUTE Come learn from some of the nation’s tax experts: • Sam Donaldson • Ramsay Slugg • Bruce McGovern • Bruce Flynn • Martin McMahon • Anthony McCormick • Charles Redd • Jeremy Miller • James Walker • Pippa Browde • Nancy Rousch • Martin Burke • Jonathan Byington • Elaine Gagliardi • Ron Aucutt • Jonathan Blattmachr www.montanabar.org Page 7 State Bar News Former US Attorney Cotter takes over as Office of Disciplinary Counsel chief Former U.S. Attorney for Montana Montana Supreme Court Chief Justice Mike Cotter is the new chief disciplinary Mike McGrath, announced the appoint- counsel for Montana. ment on June 9. He said Cotter’s extensive Cotter, who started in the position on experience in civil and criminal practice was July 3, will oversee the Office of Disciplinary an ideal fit, and he is confident Cotter will Counsel, which handles disciplinary mat- continue Thompson’s good work. ters for all attorneys licensed in Montana. “We are very lucky he was interested in He takes over for Shaun Thompson, who the position,” McGrath said. served as chief disciplinary counsel for 12 ODC is part of a comprehensive years before retiring June 30. lawyer regulation system established by Cotter, 67, has practiced in Montana the Montana Supreme Court in 2002. It per- for 40 years. He said the law has been very forms central intake functions and process- good to him and his wife, retired Montana es, investigates and prosecutes complaints Supreme Court Justice Patricia Cotter, and against lawyers before the Commission on he views this as an opportunity to give back Practice. It is funded by assessments paid by to the legal community. attorneys licensed in Montana. “I’m looking forward to innovative ways Prior to being appointed at ODC, Cotter that we can provide assistance to attorneys was the U.S. Attorney for Montana from Cotter faced with disciplinary matters,” Cotter said. 2009-2017. Riley, Halligan selected as officers on Missoula position on in the 2017 Montana Legislative Session. Bills the Aging Services Governing Board bar supported are indicated by (S), and opposed by (O) n HB 2 -- General Appropriations Act. (S, Judicial Branch) Two State Bar of Montana members are officers on the n HB 44 -- Generally revise laws related to district court Missoula Aging Services Governing Board for 2018. judge numbers. (S) Larry E. Riley (retired partner from Garlington, Lohn & n HB 46 -- Generally revising funding for civil legal aid. (S) Robinson, is vice chair of the 12-member board; 4th Judicial n HB 65 -- Revise budget consultation between public District Judge Leslie Halligan, who is also president-elect of the defender offices. (S) State Bar, is treasurer. n HB 109 -- Require every applicant for public notary to pass an exam. Sponsor: Rep. Jean Price, D-HD 24 Died in Information on requesting a refund for portion standing committee* (O) n HB 521 -- Revise laws related to representation of LLC. of dues that paid for bar’s legislative lobbying (O) n SB 195 -- Generally revise laws related to unincorporated The U.S. Supreme Court has ruled that unified bars in nonprofit associations. (O, with amendments) which membership and dues are mandatory must refund a por- n SR19 -- Confirm Governor appointees to the Judiciary. tion of those dues when the association lobbies on a legislative (S) bill in a stance with which a member doesn’t agree. n SR 22 -- Confirm Governor’s appointee to 5th Judicial If you would like to request a refund, list the bill on which District. (S) you disagreed with the State Bar’s position and send the list to: n SR 54 -- Confirm Governor’s appointee to 8th Judicial Lobbying Refund, State Bar of Montana, P.O. Box 577, Helena, District Court. (S) MT 59624. The following are bills that the State Bar of Montana took a Page 8 August 2017 Supreme Court Orders Court taking comment on breastfeeding accommodations during bar exam The Montana Supreme Court on Thursday adopted an in- testing period to be used solely for the purpose of breast- terim rule allowing accommodations for breastfeeding mothers feeding the infant or breast pumping. taking the bar exam. On Feb. 9, the court denied a petition for accommodations The rules took effect immediately to allow the accommoda- from a February 2017 exam applicant, ruling that it received the tions for those who took the July 2017 exam. The court will take request too close to the exam date. At that time, the court asked public comment before implementing the rule permanently. the Board of Bar Examiners to submit a report with recommen- In the interim rules, the types of accommodations that may dations for any policy or rule changes that the accommodations be granted include, but are not limited to: would require. • Permission to bring necessary medical equipment and sup- The board submitted a petition on June 26 calling for a rule plies, including a breast pump, storage supplies and a cooler; change that includes the accommodations listed above. • A private or semi-private location with an electrical outlet, if The court will take public comment through Sept. 5 on requested, to breastfeed or express breast milk; and whether to make the rule permanent. All comments must be • Stop-the-clock breaks up to 15 minutes per each three-hour made in writing and filed with the Clerk of the Supreme Court. DISCIPLINE the Montana Rules of Professional Conduct in his handling of a Bozeman attorney Lucas J. Foust was indefinitely suspended quiet title action. from practicing law in Montana for mishandling funds in an Morris admitted to violating: Rule 1.4 by failing to keep his IOLTA account. client informed of the status of litigation; Rule 1.2 by effectively The Supreme Court accepted the Commission on Practice’s declining a settlement offer without his client’s consent, knowl- recommendation that Foust be suspended for an indefinite pe- edge or authority; Rules 1.1 and 13 by failing to competently riod of not less than seven months. represent his client’s interests; Rule 1.16 by failing to withdraw According to the commission’s findings of fact, between as counsel when warranted by his compromised medical condi- February 2011 and October 2014, Foust a solo practitioner, dis- tion; and Rule 8,1 by failing to timely respond to demands for bursed all or part of his attorney fees and out-of-pocket expenses information from the ODC. in anticipation of settlement proceeds for cases associated with Morris said he suffered a traumatic brain injury in a mo- those fees. tor vehicle accident during this time frame that caused loss In the same period, Foust distributed some clients’ shares of of short-term memory, confusion and inability to focus and anticipated settlement proceeds from his IOLTA account before concentrate. he received the settlement proceeds in their cases, using trust Court sets aside Braukmann suspension funds that belonged to other clients and his own earned fees from settled cases to cover improperly withdrawn funds. Between April 2012 and February 2015 Foust did not give a number of The Supreme Court on June 6 set aside Billings attorney clients all the money owed to them. Michelle Braukmann’s interim suspension over convictions on The Office of Disciplinary Counsel conducted a forensic two criminal charges involving driving under the influence. analysis of Foust’s accounts after Foust self-reported an overdraft The court determined that Braukmann’s compliance with on his IOLTA trust account, determining that he transferred the terms of her probation are sufficient to ensure her sobriety. $180,000 not belonging to him from his IOLTA account to his APPOINTMENTS operating account. The commission found that, although the case did not involve McLean appointed to Access to Justice deliberate “stealing” from a trust account, it was “an egregious Commission example of an attorney who took virtually no steps to maintain even the semblance of an accounting of his clients’ funds.” Daniel McLean of Helena was appointed on July 5 as the In addition to the suspension, Foust was ordered to pay the State Bar’s representative to the Supreme Court’s Access to costs of the proceedings, including ODC’s costs in reconstructing Justice Commission. his record. McLean takes the position of Randy Snyder, who resigned Morris receives public censure during his second term on the commission effective June 9. The term ends on Sept. 30, 2019. Helena attorney Jack Morris received a public censure from the Montana Supreme Court in April for multiple violations of See ORDERS, page 37 www.montanabar.org Page 9 Supreme Court Orders Court rejects petitions on failing bar grades The Montana Supreme Court in July rejected a petition the bar exam and cited disturbances during the testing. from a February 2017 bar exam taker who said a disturbance The court noted significant differences in the cases, includ- during the testing led to his failing the exam. ing North Dakota legislation that authorized its Supreme Court The exam taker said he was distracted during the exam by to grant admission to applicants who the court “considers enti- the continued coughing and moving about of an IT administra- tled thereto.” Also, the court determined that the disturbance at tor, had asked the court to award him the 4.3 extra points he the February exam did not rise to the level of the North Dakota would have needed to achieve a passing score of 266. case, where multiple irregularities occurred. In response, the state Board of Bar Examiners acknowledged Exam grading complaint denied that the IT administrator presented a distraction but said that The court in June denied another exam taker’s request to other examinees who sat in close proximity to the petitioner have the essay portion of the February exam reviewed and received passing scores. The board argued that it would be dif- regraded. ficult and arbitrary to determine an appropriate test credit due The petitioner, who failed by one point, claimed unfair and to the distraction. inconsistent grading. There were no other formal complaints about the distur- The court ruled that it was not persuaded that the petition bance, although there were additional complaints during the demonstrated the need to override the Rules of Admission pro- exam. hibiting “additional substantive review” of examination grad- The petitioner cited a 1983 North Dakota case, Petition ing, and if the court allowed such a review, regrading would of Thompson, 342 N.W. 2d 393, in which the North Dakota become commonplace, complicating the exam process. Supreme Court granted admission to a petitioner who failed Absolutely. Positively. Neutral. BRADLEY D. BONNER 1102 BECK AVENUE 7 CANYON VIEW DRIVE CODY, WYOMING 82414 SHERIDAN, WYOMING 82801 307.586.4135 Page 10 August 2017