WWW.DISSERTATION.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Dissertations, online materials
 
<< HOME
CONTACTS



Pages:   || 2 | 3 |

«PO BOX 201706 Helena, MT 59620-1706 (406) 444-3064 Montana Legislative Services Division FAX (406) 444-3036 Legal Services Office TO: Task Force on ...»

-- [ Page 1 ] --

PO BOX 201706

Helena, MT 59620-1706

(406) 444-3064

Montana Legislative Services Division FAX (406) 444-3036

Legal Services Office

TO: Task Force on State Public Defender Operations

FROM: Julie Johnson, Legal Services Office

DATE: January 25, 2016

RE: Information and Analysis Requested by the Task Force

OVERVIEW

At the December 2015 meeting, the Task Force ask that I conduct research on a variety of topics.

In order that members of the Task Force may refer to my research and information, I have

separated my memorandum by Tabs as follows:

TAB Subject A In re the Rules of Professional Conduct and potential application B Inconsistent Guardian Ad Litem Statutes and Draft Bill to Resolve C Stackable and Non-Stackable Offenses Tables D 2015 Legislation to Reduce the Number of Crimes and Misdemeanors with the Potential for Jail Time E Discussion of Independent Contractor v. Employee Laws TAB A: In re the Rules of Professional Conduct and Potential Application on OPD In In re the Rules of Professional Conduct, 299 Mont. 321, 2 P.3d 806, 2000 MT 110, the Montana Supreme Court concluded that an attorney cannot agree to rules or policies that restrict, limit, or direct the attorney's scope of representation.

In Rules, attorneys who contracted with insurance companies to defend their policy holders asked the Supreme Court to determine whether, by adhering to certain billing rules and procedures of the insurance companies, they violated the Montana Rules of Professional Conduct.

Specifically, the attorneys asked the Supreme Court to consider the following issues:

1. Whether an attorney can agree to billing rules or policies that restrict, limit, or direct the attorney's scope of representation?

2. Whether an attorney can disclose detailed descriptions of professional services to third party auditors without a release from the attorney's client?

In Rules, certain insurance companies required that attorneys obtain prior approval before scheduling depositions, undertaking research, employing experts, or preparing motions. In re the Rules, 19. The attorneys claimed that the requirement of prior approval impermissibly interfered with defense counsel's exercise of independent judgment and duty of undivided loyalty to the client.

The Supreme Court agreed that requiring prior approval violated Rule 1.8(f)1 of the Rules of Professional Conduct and created a "substantial appearance of impropriety in its suggestion that it is insurers rather than defense counsel who control the day to day details of a defense." In re

the Rules, 47. The Supreme Court concluded:

We hold that defense counsel in Montana who submit to the requirement of prior approval violated their duties under the Rules of Professional Conduct to exercise their independent judgment and to give their undivided loyalty to insureds.

In re the Rules, 51. However, the Supreme Court also cautioned:

[T]his holding should not be construed to mean that defense counsel have a "blank

Rule 1.8(f) currently provides:

A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives written informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

–  –  –

In re the Rules, 39.

Next, the Supreme Court considered whether an attorney could release information relating to representation of a client unless the client considers after consultation. Specifically, certain insurance companies required attorneys to disclose clients files, time sheets, and work product to third party auditors. The insurance company argued that such disclosure was lawful because their insureds had agreed to the disclosure as part of their insurance contract. The Supreme Court, however, rejected the argument that the policyholders had consented to disclosure of detailed information because they cannot know at the time of the contract what claims may be

brought against the policyholder. At the time of Rules, Rule 1.6(a)2 provided:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation.

In re the Rules, 53. Ultimately, the Supreme Court concluded:

We hold that disclosure by defense counsel of detailed descriptions of professional services to third-party auditors without first obtaining the contemporaneous fully informed consent of insureds violates client confidentiality under the Rules of Professional Conduct.

In re the Rules, 78.

While this case related to rules and policies of insurance companies, one may draw parallels between an insurance company setting policies and the OPD setting policies that direct or limit counsel's exercise of independent judgment and duty of undivided loyalty to the client or policies that require counsel to produce confidential information to OPD.





Rule 1.6 was amended in 2003, after the decision in Rules.

Subsection (b) now provides four exceptions to subsection (a), none of which alter the holding in Rules.

–  –  –

See attached bill draft LC 7777 as possible legislation to address the inconsistency explained below.

Section 41-3-112(1), MCA, provides:

In every judicial proceeding, the court shall appoint a guardian ad litem for any child alleged to be abused or neglected.

(Emphasis added).

Similarly, section 41-3-607(4), MCA, also mandates that a guardian ad litem (GAL) be appointed

to a child in a termination proceeding:

A guardian ad litem must be appointed to represent the child's best interests in any hearing determining the involuntary termination of the parent-child legal relationship. The guardian ad litem shall continue to represent the child until the child is returned home or placed in an appropriate permanent placement. If a respondent parent is a minor, a guardian ad litem must be appointed to serve the minor parent in addition to any appointed or assigned counsel requested by the minor parent.

(Emphasis added). However, section 41-3-425(2)(b), MCA, implies that a court may choose to

not appoint a GAL for the child or youth involved in an abuse and neglect proceeding:

... the court shall immediately appoint the office of state public defender to assign counsel for:...

(b) any child or youth involved in a proceeding under a petition filed pursuant to 41-3-422 when a guardian ad litem is not appointed for the child or youth" LC 7777 is drafted to remove section 41-3-425(2)(b), MCA, to eliminate the inconsistency.

–  –  –

A Bill for an Act entitled: "An Act clarifying when a court may appoint the office of state public defender to assign counsel for any child or youth involved in a proceeding under a petition filed pursuant to 41-3-422; amending section 41-3-425, MCA; and providing an effective date."

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 41-3-425, MCA, is amended to read:

"41-3-425. Right to counsel. (1) Any party involved in a petition filed pursuant to 41-3-422 has the right to counsel in all proceedings held pursuant to the petition.

(2) Except as provided in subsections (3) and (4), the court shall immediately appoint the office of state public

defender to assign counsel for:

(a) any indigent parent, guardian, or other person having legal custody of a child or youth in a removal, placement, or termination proceeding pursuant to 41-3-422, pending a determination of eligibility pursuant to 47-1-111; and (b) any child or youth involved in a proceeding under a petition filed pursuant to 41-3-422 when a guardian ad litem is not appointed for the child or youth; and (c)(b) any party entitled to counsel at public expense

–  –  –

under the federal Indian Child Welfare Act.

(3) When appropriate, the court may appoint the office of state public defender to assign counsel for any child or youth involved in a proceeding under a petition filed pursuant to 41-3-422 when a guardian ad litem is appointed for the child or youth.

(4) When appropriate and in accordance with judicial branch policy, the court may assign counsel at the court's expense for a guardian ad litem or a court-appointed special advocate involved in a proceeding under a petition filed pursuant to 41-3-422."

{Internal References to 41-3-425:

41-3-422 x 41-3-422 x 41-3-422 x 41-3-423 x 41-3-432 x 47-1-104 x 47-1-104 x}

–  –  –

{Name : Julie A. Johnson Title : Attorney Agency : Legislative Services Division Phone : 406-444-4024 E-Mail : juliejohnson@mt.gov}

–  –  –

Stackable offenses means that the punishment for each offense is enhanced during sentencing upon subsequent convictions of the same offense. Most criminal offenses are not stackable.

–  –  –

Attached is Senate Bill 90 as introduced by Senator Swandal in the 2015 Legislative Session.

The bill passed Senate Judiciary by 11 to 1. It passed second reading in the Senate by 48 to 1 and third reading by 46 to 1. The bill was tabled in House Judiciary and never reached the House of Representatives for a vote by the Committee of the Whole.

It reduced or eliminated jail time for the following offenses:

–  –  –

5 A BILL FOR AN ACT ENTITLED: "AN ACT REVISING PENALTIES AND ELIMINATING JAIL TIME FOR

6 CERTAIN MISDEMEANOR OFFENSES; AMENDING SECTIONS 45-6-301, 45-6-302, 45-6-305, 45-6-316, 7 45-8-101, 45-8-111, 61-5-102, 61-5-212, 61-6-302, AND 61-6-304, MCA; AND PROVIDING AN EFFECTIVE

8 DATE AND AN APPLICABILITY DATE."

10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

12 Section 1. Section 45-6-301, MCA, is amended to read:

13 "45-6-301. Theft. (1) A person commits the offense of theft when the person purposely or knowingly 14 obtains or exerts unauthorized control over property of the owner and:

15 (a) has the purpose of depriving the owner of the property;

16 (b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the 17 owner of the property; or 18 (c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment 19 probably will deprive the owner of the property.

20 (2) A person commits the offense of theft when the person purposely or knowingly obtains by threat or 21 deception control over property of the owner and:

22 (a) has the purpose of depriving the owner of the property;

23 (b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the 24 owner of the property; or 25 (c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment 26 probably will deprive the owner of the property.

27 (3) A person commits the offense of theft when the person purposely or knowingly obtains control over 28 stolen property knowing the property to have been stolen by another and:

29 (a) has the purpose of depriving the owner of the property;

30 (b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the

–  –  –

1 owner of the property; or 2 (c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment 3 probably will deprive the owner of the property.

4 (4) A person commits the offense of theft when the person purposely or knowingly obtains or exerts 5 unauthorized control over any part of any public assistance provided under Title 52 or 53 by a state or county 6 agency, regardless of the original source of assistance, by means of:

7 (a) a knowingly false statement, representation, or impersonation; or

–  –  –

9 (5) A person commits the offense of theft when the person purposely or knowingly obtains or exerts or 10 helps another obtain or exert unauthorized control over any part of any benefits provided under Title 39, chapter 11 71, by means of:

12 (a) a knowingly false statement, representation, or impersonation; or

–  –  –

14 (6) (a) A person commits the offense of theft when the person purposely or knowingly commits insurance 15 fraud as provided in 33-1-1202 or 33-1-1302;

16 (b) purposely or knowingly diverts or misappropriates insurance premiums as provided in 33-17-1102;

–  –  –

18 (c) purposely or knowingly receives small business health insurance premium incentive payments or 19 premium assistance payments or tax credits under Title 33, chapter 22, part 20, to which the person is not 20 entitled.

21 (7) A person commits the offense of theft of property by embezzlement when, with the purpose to deprive 22 the owner of the property, the person:

23 (a) purposely or knowingly obtains or exerts unauthorized control over property of the person's employer 24 or over property entrusted to the person; or 25 (b) purposely or knowingly obtains by deception control over property of the person's employer or over 26 property entrusted to the person.

27 (8) (a) Except as provided in subsection (8)(b), a person convicted of the offense of theft of property not 28 exceeding $1,500 in value shall be fined an amount not to exceed $1,500 or be imprisoned in the county jail for 29 a term not to exceed 6 months, or both. A person convicted of a second offense shall be fined $1,500 or be 30 imprisoned in the county jail for a term not to exceed 6 months, or both. A person convicted of a third or

–  –  –



Pages:   || 2 | 3 |


Similar works:

«Copyright 2007 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 101, No. 1 CHIEF JUSTICE REHNQUIST’S APPOINTMENTS TO THE FISA COURT: AN EMPIRICAL PERSPECTIVE Theodore W. Ruger* INTRODUCTION I. BACKGROUND ON THE FISA COURT AND THE CHIEF JUSTICE’S APPOINTMENT POWERS II. METHODOLOGICAL CHOICES A. General Motivation, Choices, and Challenges B. Specific Methodological Choices III. RESULTS AND DISCUSSION A. The General Ideology Proxies B. Fourth...»

«Hughes Hubbard & Reed LLP EMPLOYEE BENEFITS ADVISORY May 2001 Required “GUST” Amendments for Qualified Retirement Plans The deadline for adopting “GUST” amendments to qualified retirement plans and submitting them to the IRS is fast approaching. Although the IRS has previously extended this deadline several times, the IRS has announced that it will not be extending the deadline beyond the current deadline — the last day of the plan year beginning on or after January 1, 2001. For...»

«Wako-Pro Rules RING SPORT TECHNICAL AND COMPETITION RULES International Sports & Entertainment S.r.l. Sport Event Management Sole Director: Barbara Falsoni Legal office: Via S. Alessandro n.12 24122 Bergamo (Italy) Tax code and registration number with the Companies’ Register of Bergamo 03455740161 Tel. +39 3450135521 Fax +39 0392328901 Web: http://www.wakopro.org E-mail: bf@wakopro.org ise@wakopro.org 1 Wako-Pro Rules INDEX Chapter One – General Rules Art.1 Age categories Art.2 The ring...»

«CRIMINAL PROSECUTION OF BATTERED NATIVE WOMEN FOR FAILURE TO PROTECT1 By James G. White, Hallie Bongar White, and Jane M. Larrington Introduction A disturbing trend has emerged in Tribal and state courts. Women are being criminally charged with “failure to protect” under child abuse, child neglect, or child endangerment statutes solely because of the violent, criminal actions of their abusive partners. Under the laws and practices of many jurisdictions, women with children may be criminally...»

«Centre for Comparative Constitutional Studies Annual Report 2013 Table of Contents Director’s Report 1 About the Centre 2 Centre Members 3-9 Advisory Board 9 Visitors to the Centre 10 CCCS Graduate Research Students 11 Events 12-20 Funded Research Grants 21-22 Publications 23-24 Appendix 25-26 www.law.unimelb.edu.au/cccs CCCS Annual Report 2013 Director’s Report Activities The CCCS year was marked by three important symposia in February, March, June and December. The first was a new kind of...»

«Lawrence E. Tyson Ph. D. 157 Education Building 901 S. 13th Street Birmingham, AL. 35294 (205) 975-2491 ltyson@uab.edu Educational Background Mississippi State University Ph. D., Counselor Education, 1996 Dissertation “The Affect of a Peer Mediation Program on Conflict Management Style and Perceived Treatment Acceptability of Sixth Grade Students.” Professional Appointments and Positions Appointed Editor, Alabama Counseling Association Journal, 2010 – 2013. Lecturer, Palliative Care...»

«4 PEASANT PERCEPTIONS OF PROBLEMS AND POSSIBILITIES FOR LOCAL-LEVEL MANAGEMENT OF TREES IN NIGER AND UPPER VOLTA JameS T. Thomson Assistant Professor.'. Dept. of Govt. & Law, Lafayette College Easton, Pa. 18042 Paper prepared for,presentation at the African Studies Association Annual 1. Meeting, Phil'aelphia, c-toer PEASANT PERCEPTIONS OF PROBLEMS AND POSSIBILITIES FOR LOCAL-LEVEL MANAGEMENT OF TREES.INNIGER AND UPPER VOLTA Introduction This essay compares perceptions of woodstock* management...»

«Celebrating CBI Member Success in China CBI Beijing  April 2015 Executive summary (*Access full sector-specific updates: architecture and design (2), automotive (5), aviation (2), banking and financial services (4), beverage (1), consumer brands (1), education (3), energy (1), fashion (1), film (1), flight services (2), hospitality (1), information and communications technology (1), legal (3), paper (1), professional services (3), rail (1), real estate (1), and recruitment (1))  ABB...»

«The Blind African Slave, or Memoirs of Boyrereau Brinch, Nick-named Jeffrey Brace. Containing an Account of the Kingdom of Bow-Woo, in the Interior of Africa; with the Climate and Natural Productions, Laws, and Customs Peculiar to That Place. With an Account of His Captivity, Sufferings, Sales, Travels, Emancipation, Conversion to the Christian Religion, Knowledge of the Scriptures, &c. Interspersed with Strictures on Slavery, Speculative Observations on the Qualities of Human Nature, with...»

«The Journal of Nietzsche Studies, Issue 35/36, Spring/Autumn 2008, pp. 106-123 (Article) For additional information about this article http://muse.jhu.edu/journals/nie/summary/v035/35.hatab.html Access provided by Old Dominion Libraries ACCESS_STATEMENT (Viva) (27 May 2015 11:48 GMT) How Does the Ascetic Ideal Function in Nietzsche’s Genealogy? LAWRENCE J. HATAB I t is remarkable that four commentaries on Nietzsche’s On the Genealogy of Morals will have been published within the space of...»

«CITY COUNCIL, CITY OF ROCKFORD JOURNAL OF PROCEEDINGS NOVEMBER 5, 2007 COUNCIL CONVENED AT 6:24 P.M.1. The invocation was given by Pastor Robert Jones, St. Luke Missionary Baptist Church/ Police Chaplain and the Pledge of Allegiance was led by Boy Scout Troop #37 and their Scout Master Arthur Bayliss.2. Roll Call: Mayor Lawrence J. Morrissey Aldermen: Sosnowski, Curran, Mark, Wasco, Bell, Jacobson, Thompson, Johnson, Timm, Beach, Holt, Beck, Conness –13Absent: McNeely –13. Alderman Mark...»

«Code of Colorado Regulations Rules Styling Manual Colorado Secretary of State Administrative Rules Program 1700 Broadway, Suite 200 Denver, CO 80290 303-894-2200 x6418 rules@sos.state.co.us Deanna Maiolo, Program Manager deanna.maiolo@sos.state.co.us Joseph Jaramillo, Technician II joseph.jaramillo@sos.state.co.us Revised August, 2016 Secretary of State Rules Styling Manual Introduction The Secretary of State publishes the official version of all state administrative rules in the Code of...»





 
<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.