Planning for Death, Brought to Life: Thoughts from a Professional Fiduciary by David C. Cooper

Posted on May 31, 2024 | updated: June 3, 2024

“…Texas authorities searched yesterday for the bodies of two of four people swept into the Pedernales River when they tried to cross on steppingstones. Two bodies were recovered Sunday.”[1]

by David C. Cooper

David Cooper’s daughter is pictured and serves as a reminder to David that his work prepares the next generation. Photo courtesy of David Cooper.

Why Do I Work as a Professional Fiduciary?

For most of my career, I have worked as a professional fiduciary in the context of trust and estate administration.

I was likely drawn to this area of practice based on personal experience at a young age. The newspaper article quotation above refers to my parents, oldest brother, and sister who perished in a drowning accident while I was in high school. At the time of the accident my father, George, was academic dean at the junior college in my hometown, and my mother, Wilma, taught sixth grade. Along with my sister, Leslie, we were visiting our oldest brother, Guy Cooper, who had just completed his first year of law school at the University of Texas. Our brother, Kevin, was not with us on the trip.

As teachers of modest financial standing, my parents were unlikely candidates to have created a trust at their passing. That said, life insurance proceeds funded a trust that protected assets for surviving children through age 21. My dad’s brother, Victor, served as trustee. Uncle Vic was a Baptist minister and WWII veteran – not a financial or legal professional. However, his caring service as trustee provided a solid foundation from which I was able to advance my education and professional career.

Throughout this article, I’ve included quotations in an attempt to add color to the specific topic being discussed. The following may describe how I felt after my family’s accident:

“I was bruised and battered

I couldn’t tell what I felt

I was unrecognizable to myself…”

Bruce Springsteen[2]

Perhaps our clients experience similar feelings after a significant loss.

What Is a Professional Fiduciary?

“Walk a mile in my shoes…”

Joe South[3]

A simple understanding of fiduciary might be to “walk in someone else’s shoes,” i.e., represent someone who is unable to represent themself.

The primary fiduciary roles I have engaged in include trustee, personal representative, conservator, and agent. Fiduciaries serve a very important function in the end-of-life spectrum of needs, which of course also includes estate planning and elder law attorneys, caregivers, and others. As a fiduciary, I am at the back end of the estate planning process, typically called on to serve when someone has passed away or experienced a situation of incompetency.

Core responsibilities of a professional fiduciary include understanding and integrating relevant law, property issues, and working with people.

The following are perspectives I have developed over the past 25 years as a professional fiduciary.

Consider Starting Basic When Describing the Roles of a Fiduciary

As noted, “fiduciary” is a broad term describing standing in the shoes of another person or entity, with the obligation to put the best interests of the other person or entity ahead of those of the fiduciary. Idaho Code § 63-3007 provides a statutory definition.[4]

The following is a very fundamental description of fiduciary roles. I typically receive positive feedback when I cover this with prospective clients.

Consider the Spectrum: An Estate Plan Is Only as Good as Its Implementation

“For all its uncertainty, we cannot flee the future.”

Barbara Jordan[v]

Creating an estate plan is only the beginning. Due consideration must also be given to investing in the administration, execution, and implementation of the plan.

The well-drafted estate plan is an investment that deserves to be implemented by a responsible individual (typically with ample professional assistance), or a professional fiduciary. While it is difficult to know which individuals will survive us and be willing to serve, it is not my contention that every plan needs a professional fiduciary. The able service of my Uncle Vic serves a great example of who an individual trustee may work successfully. That said, it is also an accurate observation that a professional fiduciary’s most consistent source of current business opportunities are trusts and estates where individuals were named as fiduciaries, and where neglect, errors, or malfeasance have occurred.

Where legal disputes arise between family members, the role of the independent fiduciary takes on even greater importance. Having the assets under the control of an independent third party allows interested parties to sort out legal disputes and/or vent long-held conflict without experiencing insecurity as to asset dissipation.

Retaining a Professional Fiduciary Should Be Viewed as a Risk-Transfer Decision

“Only put off until tomorrow what you are willing to die having left undone.”

Pablo Picasso[vi]

Think for a moment about all the types of insurance we pay for: homeowners, health, auto, malpractice, life, disability, long-term care, etc. Why do we invest in insurance?

Insurance is of course synonymous with “risk transfer.” The fundamental structure of insurance involves realizing a known loss – payment of a premium – to protect against the risk or possibility of a much larger loss. In the context of estate planning and administration, we don’t just seek to protect a large asset in the estate, we strive to protect the entire estate, as well as the specific disposition of trust or estate assets. Further, an efficient and accurate administration of a trust or estate can promote the goal of preserving family relationships.

Engaging the correct individual or professional fiduciary increases the likelihood of achieving all the goals of the well-crafted estate plan. As such, it is appropriate to view this as a straightforward risk transfer decision.

A professionally crafted plan deserves care and effective administration.

Fiduciary-Related Expenses Will Arise Whether a Professional or an Individual Is Serving as the Fiduciary

“Beware of little expenses. A small leak will sink a great ship.”

Benjamin Franklin[vii]

Because the duties of a fiduciary are so broad, it is almost inevitable that professional fees will be involved, even if a family member is willing to serve. Stand-alone investment management fees vary, but a reasonable estimate is 1% annual fees – just for management of financial securities. The individual serving as trustee will typically (and wisely) rely on legal advice in fulfillment of fiduciary duties. Further, expenses for retention of tax preparers, property managers, and other professionals, all may come into play.

Professional Fiduciaries with Limited Services Offerings

“Let our advance worrying become advance thinking and planning.”

Winston Churchill[viii]

Serving as a professional fiduciary is a challenging field involving multiple disciplines. Required areas of expertise include but are not limited to communication and people skills, administration, asset management (financial securities, real estate, entities, receivables, etc.), risk mitigation, taxation, operations, financial planning, marketing, and management.

The Limited Services Offering Fiduciary (“LSO Fiduciary”) represents a business model focused on providing only a portion of these services. In the LSO Fiduciary model, fundamental fiduciary duties may be shared with third parties, or outsourced entirely. In the right circumstance, there are attractive attributes to the LSO Fiduciary model, as (for example) it can allow a trusted investment advisor to continue to serve as the primary point of contact for family members.

The LSO Fiduciary model can present the perceived path of least resistance for estate planners and family members in what can be a difficult decision-making process.

The positive attributes come at a cost. For instance, these costs may be associated with conflicts of interest that may arise. The LSO Fiduciary’s ability to select an outside investment advisor creates a marketing opportunity – for the LSO Fiduciary. Close monitoring is important to evaluate whether the third party selected for investment management (or other outsourced services) by the LSO Fiduciary is the best choice for the trust or estate, or the best choice for the LSO Fiduciary.

An additional conflict of interest surfaces when the LSO fiduciary is introduced to the relationship by the investment advisor. The fundamental trustee duty of objectivity is at risk when the fiduciary is beholden to the investment advisor for a particular business opportunity.

Another potential cost comes from the overlay of fees. As noted previously, the outside investment advisor may charge 1% or more. Adding fiduciary fees for administration – which often include a billable hour component in the LSO Fiduciary model – can drive total fees significantly higher.

Next, the outsourcing of custody may present additional costs. An LSO Fiduciary may rely on a third party to have custody of financial securities. As such, assets will not be in direct control of the fiduciary. Outsourcing custody of fiduciary assets may lead to delays in cash movement, and delays in providing accurate accounting for assets.

A final word of caution: LSO Fiduciaries may lack basic expertise in investment management. Lack of investment management expertise at the fiduciary level leaves assets at risk of idle management and could lead to inconsistent supervision of outside managers.

The Intangibles of Tangible Personal Property Disposition

“Twice as much ain’t twice as good

And can’t sustain like one half could

It’s wanting more that’s gonna bring me to my knees…”

John Mayer[ix]

Many of us may feel the gravity of being weighed down by “stuff” – more formally known as Tangible Personal Property (“TPP”). TPP is property that can be touched, used, or consumed, and has intrinsic value. Examples include clothing, vehicles, jewelry, business equipment, furniture, art, silverware, musical instruments, and books.

Disposition of TPP is typically addressed in an estate plan by reference to a writing separate from the will. Per I.C. § 15-2-513, “the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty.”[x]

In my experience, less than half of estate plans to be administered include a completed list for disposition of TPP. In post-death administration, it is not unusual to hear from family members that the decedent verbally promised them specific items of TPP. But if it isn’t written down, it typically doesn’t happen.

When an estate owns personal property of significant financial or emotional value, I encourage estate planning attorneys to assist their client in completing the disposition list for TPP. This can be a tremendous service to the family. For example, one memorable list was 115 pages long. This list was typed, signed, and included photographs as well as a brief description of each item and identified its intended recipient. This saved the family significant heartache and disputes, as the decedent had a habit of verbally promising the same items to multiple family members.

Given the potential emotional impact of disposition of TPP, this area is ripe for litigation. Family members may be more willing to fight for grandma’s wedding ring, or granddad’s vintage Martin guitar – so plan accordingly.

Managing Real Estate as a Fiduciary Is Not a Passive Endeavor

“Real estate is a contact sport.”

Tracey Hampson[xi]

It is inevitable that real estate will be a component – perhaps the primary asset – of many fiduciary accounts. This said, it is important to follow a discipline when onboarding and managing real estate.

The “Big 3” steps to be followed include inspection, valuation, and insurance.

The inspection may reveal structural imperfections that need to be addressed, but most importantly should be targeted to health and safety concerns. Recently a trust I was administering owned a house on the Boise Bench that as fiduciary we were preparing to sell. The professional inspection revealed many deficiencies, but most worrisome was an exposed wire in the basement. Cost-wise it was an inexpensive fix for an issue that (left unresolved) could have had disastrous consequences.

The next step to follow is valuation, which may include an appraisal. A fundamental fiduciary obligation is to account to interested parties. Defensible information as to valuation may be best obtained via an appraisal.

Finally, it is essential that adequate insurance coverage be maintained on fiduciary-owned properties. Clients are well-served to work with a professional fiduciary that offers a blanket policy for fiduciary-owned assets across all accounts. In the absence of a blanket policy, a professional fiduciary must maintain contact with multiple agents, track claims quality of multiple carriers, and deal with a multitude of different policy provisions, coverage limitations, and premium due dates.

Serving as a professional fiduciary is a challenging field involving multiple disciplines.

The Financial Strength of a Professional Fiduciary Is Important

“Will you still love me, tomorrow?”

Carole King[xii]

The financial strength of a professional fiduciary is important. A successor fiduciary named in estate planning documents today may not serve for many years, or even decades. Does the professional fiduciary have diverse sources of revenue? Do they report financial information that can be reviewed by the public, such as bank call reports?[xiii] If a private fiduciary will not disclose financial information, how do you know they will be around when needed?

Consider reviewing public information about a professional fiduciary’s financial strength, when evaluating the best fit for your clients.

Conclusion: Plan for the Full Spectrum

“I’d love to change the world

But I don’t know what to do

So I’ll leave it up to you.”

Alvin Lee[xiv]

A message I consistently give to the trust officers on my team is that because the job responsibilities for being a fiduciary are so broad, there are many ways to be a great trust officer. Reviewing my own experience, Uncle Vic had only a modest financial and legal background, but was off the charts in terms of empathy, relatability, and compassion. While a professional fiduciary must possess technical expertise, we often find that the “human” elements are crucial to making an estate plan work. The best fiduciary likely offers a balance of technical expertise and people skills.

Clients are counting on their estate planning attorney for thorough advice, not just a transaction. A professionally crafted plan deserves care and effective administration. Because an estate plan is only as good as its administration and implementation, I encourage you to complete the estate planning spectrum by helping your clients choose the right fiduciary for their circumstances.

David C. Cooper

David Cooper serves as Chief of Trust and Investment Administration for Idaho Trust Bank. David is based in Boise and manages a team of trust officers and administrators in Boise and Coeur d’Alene. David also works directly with current and prospective fiduciary clients of the bank, and serves as a primary point of contact when attorneys refer prospective clients to Idaho Trust. David is an Idaho attorney who previously served as President and Bar Commissioner of the Idaho State Bar, and is immediate Past-Chairperson for the Taxation, Probate & Trust Law Section. He has also served as President of the Boise Estate Planning Council and as President of the Treasure Valley Estate Planning Council. He is a member of the Alaska and Kansas Bar Associations and is a graduate of the University of Kansas School of Law and the University of Kansas School of Business. He holds the designations of Certified Financial Planner and Certified Trust & Financial Advisor. In 2022 David was elected as a Fiduciary Counsel Fellow of the American College of Trust and Estate Counsel.

[1] Middle West and East Hit by Rains and Tornados, The New York Times (June 16, 1981).

[2] Bruce Springsteen, Streets of Philadelphia on Philadelphia: Music from the Motion Picture (Epic Soundtrax 1993).

[3] Joe South, Walk a Mile in My Shoes on Don’t It Make You Want To Go Home (Capitol Records 1970).

[4] Idaho Code § 63-3007 (“The term ‘fiduciary’ means a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in a position of trust or fiduciary capacity for any other person or group of persons.”).

[v] American Rhetoric: Barbara Jordan – 1976 Democratic National Convention Keynote Address, https://www.americanrhetoric.com/speeches/barbarajordan1976dnc.html (last visited May 22, 2024).

[vi] Pablo Picasso Quotes, BRAINYQUOTE, https://www.brainyquote.com/quotes/pablo_picasso_120938 (last visited May 10, 2024).

[vii] See Benjamin Franklin, Poor Richard’s Almanac (1732).

[viii] Winston Churchill Quotes, BrainyQuote, https://www.brainyquote.com/quotes/winston_churchill_156920 (last visited May 10, 2024).

[ix] John Mayer, Gravity on Continuum (Sony BMG Colombia Aware 2006).

[x] Idaho Code § 15-2-513.

[xi] Alex Velikiy, 20 Funny Real Estate Quotes, Rontar (Jan. 17, 2024), https://www.rontar.com/blog/funny-real-estate-quotes/ (last visited May 10, 2024).

[xii] Carole King, Will You Love Me Tomorrow on Tonight’s the Night (Scepter 1960).

[xiii] See Federal Financial Institutions Examination Council Central Data Repository’s Public Data Distribution, Federal Financial Institutions Examination Council, available at https://cdr.ffiec.gov/.

[xiv] Alvin Lee, I’d Love to Change the World on A Space in Time (Columbia 1971).

Outgoing President’s Message by Gary L. Cooper

Posted on May 31, 2024 | updated: May 31, 2024

Do You Know Your Bar?

by Gary L. Cooper

Until I became a Bar Commissioner three years ago, I probably could not have accurately told you how many lawyers there are in Idaho. There are currently approximately 7,200 members of the Idaho State Bar, including a variety of license statuses. Of those 7,200, 1,700 are identified as emeritus, house counsel, judicial, senior, and inactive. That leaves about 5,400 active lawyers, 3,100 of which are active residents of Idaho and 2,300 who are out-of-state members. Although there are multiple sources with varying statistics, the American Bar Association identifies the Dakotas, Wyoming, Montana, Alaska, Hawaii, New Hampshire, Rhode Island, Delaware, and Vermont as having the same, or a less, number of active resident lawyers. It should come as no surprise that 70% of Idaho’s active resident lawyers practice in the Fourth District (Boise and the surrounding area).

In Idaho if you are an active member of the Idaho State Bar, or House Counsel, and have been admitted in Idaho for four or more years, you pay $425 for your annual license fee – that has been unchanged for the past 11 years. You can expect to see a request for a modest increase in your annual license fee in the next two to three years, but approval of any such increase will be subject to a vote by you, the members, during the Resolution Process. However, even increased fees will still be commensurate with our neighboring states. Wyoming charges the least, but Wyoming also has half the lawyers that Idaho does. The annual license fee for Active members in Wyoming is $355. In Utah the annual license fee is $445 which includes a mandatory assessment of $20 for the Client Security Fund. In Montana the annual license fee is $515, which includes various mandatory assessments. In Nevada it is $450. In Washington it is $473. In Oregon it is $688.

There are approximately 27 full time employees who work for the Idaho State Bar (“ISB”) and Idaho Law Foundation (“ILF”) located at 525 West Jefferson in Boise.

Diane K. Minnich has worked for the Idaho State Bar for 39 years – 34 as the Executive Director of both organizations. Diane has been to every Annual Meeting and has traveled at least 39 times to every judicial district in Idaho. Diane has a degree in behavioral science from San Jose State University. A testament to her effectiveness as a manager and leader is the fact that the average length of employment for staff members is 11 years and 13.5 years for the management staff. Diane oversees a budget of approximately $4,400,000. The ISB has received a clean audit for 13 years in a row. It is a foregone conclusion that Diane will retire in the near future. Her replacement will have big shoes to fill.

Joe Pirtle has been Bar Counsel for two years. He follows two legends in that job, Judge Mike Oths and Brad Andrews. Before he became Bar Counsel, Joe was a shareholder at Elam & Burke. Joe graduated from the University of Idaho with an undergraduate degree in business finance and a J.D. from the University of Idaho College of Law in 2004. Joe is assisted by Deputies Julia Crossland (George Washington University School of Law, J.D. 1986) and Caralee Lambert (Georgetown University, J.D. 1998). On average they answer over 100 ethics phone calls per month; intake approximately 30 grievances/complaints against Idaho lawyers per month; and participate in the investigation and disposition of those grievances. They also assist with claims to the Client Assistance Fund, investigations by the Character and Fitness Committee and provide advice to the Reasonable Accommodations Committee. Joe attends every meeting of the Board of Commissioners. During Joe’s two years as Bar Counsel, he has been involved in litigation in state and federal court defending the ISB and Board of Commissioners. Joe’s litigation experience has been invaluable in fulfilling his duties as Bar Counsel. My prediction is that when Joe retires, we will say that there have been three legends who have held the job of Bar Counsel.

Maureen Ryan Braley is the Associate Director and has worked for the ISB for 13 years. She graduated from Gonzaga University School of Law in 2004, clerked for Justice Schroeder, and worked as a litigator and deputy prosecutor before joining the ISB. She manages the admissions department, evaluates applications for admission, administers two bar exams a year, and oversees the grading of bar exams. In 2020 and 2021 there were 500 applicants each year and nearly 50 of those applicants were reviewed by the Character & Fitness Committee due to issues discovered during her evaluation of their applications. Maureen also oversees MCLE accreditation and reporting. She oversees the processing of approximately 6,000 MCLE requests per year for CLE course approval. You may have heard that there is a new bar exam called the NextGen Bar Exam which has been evaluated for several years to focus more on testing examinees’ skills and abilities than solely testing legal knowledge which research showed was focused too heavily on memorization. Maureen and Justice Robyn Brody have been actively involved in studying this replacement for the Uniform Bar Exam and, if you ask Maureen, she would be happy to explain the benefits of the NextGen Bar Exam. Maureen is also responsible for making sure that applicants for admissions meet the ethical standards of Idaho lawyers. The Bar approved a resolution in 2023 to grant admission to out-of-state lawyers based on experience rather than reciprocity. Making sure these new admittees are ethically qualified is Maureen’s responsibility. She does a fantastic job handling these important duties.

Annette Strauser is the Licensing and IT Administrator and has worked for the ISB for 40 years. In 2024, Annette managed 6,947 license renewals, 82% of which were handled online and the rest by check. The online licensing process has been available for 15 years and due to Annette’s expertise, it is quickly becoming the predominant method for renewing licenses which significantly reduces the time and expense associated with the renewal process. The ISB is working on further upgrades to its website which will allow lawyers to access their membership records and MCLE records faster and easier.

Teresa Baker is the ISB Program and Legal Education Director and has worked for the ISB since February 2019. She graduated from the University of Idaho College of Law with her J.D. in 1996, clerked for Justice Horton, worked as a deputy prosecuting attorney for Ada County, was the public information officer for the Idaho State Police, and Director of Government Affairs and General Counsel for the Idaho Association of Counties before joining the ISB. She organizes legal education opportunities for ISB members, works with the 23 different Practice Sections, and manages special programs including the Idaho Academy of Leadership for Lawyers and the Lawyer Assistance Program. Teresa is an organizational genius.

Lindsey Welfley is the ISB Communications Director. She received her B.A. in history from Grand Canyon University and has worked for the ISB since June of 2015. She manages The Advocate and monitors the ISB’s website and social media platforms. I admit that I do not know exactly what a social media manager does because I am barely capable of using social media. However, I know Lindsey watches it and was able to intercept a harmful attack on the ISB on a weekend, late at night. In other words, when nobody was watching she was on the job protecting the ISB. I also know that she has been incredibly helpful to me by editing and making my missives more readable for publication in The Advocate. For that I am forever grateful. Lindsey is a truly talented writer!

Craig Kenyon is the ISB Controller. He has worked for the Idaho State Bar since May 2023. He received his undergraduate degree from Boise State University and in 1997 he received his master’s in public administration. He comes to the ISB/ILF after 25 years of experience as a manager and accountant in the mining industry.

I do not have the space to mention any more of the numerous other staff and management team members which keep the Idaho State Bar and Idaho Law Foundation functioning efficiently. We are lucky that we have the leaders and managers mentioned in this article because we do not have to place our hands on the controls. The Idaho State Bar and Idaho Law Foundation are in good hands and providing exceptional services for all Idaho lawyers. It has been my honor to recognize some of the staff in this, my last article. See you at the Annual Meeting in Boise, July 17 – 19, 2024.

Department Report: Program Services by Teresa A. Baker

Posted on May 30, 2024 | updated: May 30, 2024

by Teresa A. Baker

Members of the Idaho State Bar have access to a variety of programs, resources, discounts, and services available that you may not know about. These resources can help improve your practice, personal life, leadership, and community involvement.

Join a Practice Section

Probably the most helpful resource to law practitioners in Idaho are the 23 Practice Sections. The members of these Sections offer support for each other in a myriad of ways including educational opportunities through monthly CLE sessions and annual conferences. Additionally, many of the Sections offer a listserv to their members wherein your questions are answered almost immediately by those practicing in the same area of the law.

However, the most beneficial reason to join a Section is to become better acquainted with other bar members as this helps us all by keeping the practice of law in Idaho civil and professional. Become a member of a Practice Section by visiting the Idaho State Bar website.

Approved Benefits Providers

The Idaho State Bar works with various organizations to offer benefits that we think our members would utilize and assist them in their practice, their career, and for their clients. Click on the “Approved Benefit Providers” tab on our website under Member Programs & Services to see the specific offerings.

Fastcase

This unlimited online legal research library is available to all active and judicial members at no-cost and is available for all other members for just $30 a year. The search engine includes two recently merged competitors and now offers even more legal resources including workflow, analytics and legal research including citation analysis, appellate summaries, and information on case treatment. Fastcase updates its database daily.

Idaho Academy of Leadership for Lawyers (“IALL”)

Our interactive leadership training program is designed specifically for lawyers. Each class consists of a diverse group of 12-20 members of the Idaho State Bar.

The mission of IALL is to promote diversity and inspire the development of leadership within the legal profession. IALL brings together lawyers from different practice areas with a variety of backgrounds from all across Idaho and builds upon the participant’s leadership skills to promote leadership experiences by:

Teaching accepted and recognized leadership skills and philosophies;
Fostering professional relationships within the Idaho legal community and the greater community;
Promoting professional obligations and community service;
Raising awareness among lawyers of the broad range of issues and challenges facing leaders today; and
Engaging in the community through each member’s legacy project as part of the IALL practicum.

Applications for the 2024-2025 Class are now available on our website.

Lawyer Assistance Program

A 100% confidential program, the Lawyer Assistance Program (“LAP”) supports lawyers and judges who are experiencing problems associated with alcohol, substance abuse, depression, anxiety, and/or mental health issues in a safe manner. The LAP has a committee member in each judicial district and a 24/7/365 hotline at (866) 460-9014.

Mentor Program

The Mentor Program assists new lawyers in the transition from law school to a successful law practice. The program pairs new lawyers with an experienced lawyer in their local community. Experienced lawyer mentors agree to respond to general questions from the new lawyers and to give suggestions and offer guidance where appropriate about the practical aspects of practicing law. If you are interested in sharing your expertise with a newer member of the bar, please contact our program liaison Teresa Baker.

Attorney Well-Being Resources

Maintaining well-being is part of lawyers’ ethical duty of competence. It calls for healthy, positive choices to assure that lawyers can be their best for their clients, families, organizations, and communities. Further, to be their best, lawyers depend on many important contributors who are not lawyers. Therefore, well-being across the legal profession is an important goal.

The ISB Committee on Attorney Well-Being has provided many resources for all members of the legal community to maintain their well-being. This includes free on-demand CLEs on topics such as stress management and trauma-informed lawyering. The website includes activities to stay strong physically, align your spirit, grow your mind and career, while connecting with others and improving your emotional well-being. We invite you on this journey with us to live better lives!

Idaho Supreme Court Order Re: Death Penalty Criminal Jury Instructions and Criminal Jury Instructions

Posted on May 23, 2024 | updated: June 18, 2024

Death-Penalty-Criminal-Jury-Instructions-and-Criminal-Jury-Instructions-5-22-24 Download

Amendments to the Idaho Appellate Rules and Related Rules of Civil and Criminal Procedure – Effective July 1, 2024

Posted on May 20, 2024 | updated: June 12, 2024

Amendments to the Idaho Appellate Rules and Related Rules of Civil and Criminal Procedure, eff July 1, 2024 Download

Amendment of Idaho Infraction Rule 9(b), Infraction Penalty Schedule – Effective July 1, 2024

Posted on May 20, 2024 | updated: June 12, 2024

Amendment of Idaho Infraction Rule 9(b), Infraction Penalty Schedule, eff July 1, 2024 Download

Amendments to Rules Governing Disqualifications Without Cause

Posted on May 15, 2024 | updated: June 7, 2024

Letter – DQ Without Cause Download

Amendments to Rules Governing Disqualifications Without Cause, eff July 1, 2024 Download

New Commissioner Representing the 6th and 7th Districts

Posted on May 8, 2024 | updated: May 29, 2024

F.J. Hahn (Idaho Falls) was elected to serve as the Commissioner representing the 6th and 7th Districts. He will replace Gary Cooper and starts his term at the conclusion of the 2024 Idaho State Bar Annual Meeting.

2024 Idaho High School Mock Trial Competition by Carey A. Shoufler

Posted on May 2, 2024 | updated: May 2, 2024

by Carey A. Shoufler

The Idaho Law Foundation’s Law Related Education Program hosted its annual High School Mock Trial State Championship from Wednesday to Friday, March 13 to 15. This year, students explored a civil case that centered on an allegation of wrongful death brought by the estate of a person who died while participating in an extreme obstacle course race.

For the 2024 competition, 352 high school students from 32 teams registered to participate in the mock trial competition. 186 teachers, judges, attorneys, and other community leaders donated their time to serve as coaches, advisors, judges, and competition staff.

This year, for the first time, we increased the number of teams advancing to state from 12 to 16, from regional competitions held in Pocatello, Lewiston, and Boise. These teams participated in four rounds of competition on Wednesday and Thursday at the Ada County Courthouse with the top two teams facing off for the state championship at the Idaho Supreme Court on Friday morning. The following schools participated in Idaho’s state tournament:

The Ambrose School (Meridian, two teams)
Boise High School
Capital High School (Boise)
Centennial High School (Meridian)
Lewiston High School
Liberty Charter School (Nampa, two teams)
The Logos School (Moscow, two teams)
Mountain Home High School (two teams)
Pocatello High School
Renaissance High School (Meridian)
Timberline High School (Boise)
Troy High School

The following teams placed in the top five for Idaho’s state tournament:

2024 State Champion: The Ambrose School (A Team)

State Runner Up: Logos School (A Team)

Third Place: Boise High School

Fourth Place: Capital High School

Fifth Place: Troy High School

Mock trial team members who played roles as attorneys and witnesses had the opportunity to be recognized for individual awards. For each trial through four rounds of competition, each judge had the opportunity to select the students they believed gave the best performances for the trial. The top witnesses and attorneys for the 2024 competition include:

Top 12 Attorneys:

Delaney Blankinsop (Boise High)

Samara Coleman (Ambrose)

Emily von Drakk (Ambrose)

David Henreckson (Logos)

Bridget Kelley (Timberline)

Jackson Long (Liberty Charter)

Nick Mann (Mountain Home)

Fiona Michael (Boise High)

Tadman Nettles (Centennial)

Jaxon Pierce (Capital)

Clive Miller (Logos)

Kyleigh Rohrs (Mountain Home)

Top 10 Witnesses:

Fiona Bothwell (Ambrose)

Jack Cornell (Centennial)

Ava Ginn (Logos)

Ada Hunt (Capital)

Alex Kuyper (Pocatello)

Tabitha Miller (Logos)

Molly Montgomery (Boise)

Josh Nelson (Troy)

Audrie Seamons (Timberline)

Eva Steele (Lewiston)

As part of the state competition, Idaho’s Mock Trial Program, in partnership with the Professionalism & Ethics Section, developed the Civility & Ethics Award, created to highlight the importance of civility and professionalism among teams participating in mock trial. During the state competitions teams observe and interact with each other and submit their nomination for the award. For 2024, Lewiston High School was chosen by the other teams as the recipient of this year’s award.

Idaho’s mock trial program also hosts a Courtroom Artist Contest as part of the program. In 2024, 12 courtroom artists participated in the contest, the most artists we’ve had in a season. Artists observed trials and submitted sketches that depict courtroom scenes. The top three entries for 2024 were:

First Place: Daily Adams, Timberline High School

Second Place: Emma Meyers, Renaissance High School

Third Place: Vanessa Morales, Mountain Home High School

The Ambrose School will represent Idaho at the National High School Mock Trial Championship in May in Wilmington, Delaware and Daily Adams will represent Idaho in the National Courtroom Artist Contest.

The Idaho Law Foundation’s Law Related Education Program would like to thank the sponsors and volunteers who helped during the 2024 mock trial season. We couldn’t do our important work without your support.

Plans will soon begin for the 2025 mock trial season. For more information about how to get involved with the mock trial program, visit idahomocktrial.org or contact Carey Shoufler, Idaho Law Foundation Law Related Education Director, at cshoufler@isb.idaho.gov.

Carey A. Shoufler

For 30 years, Carey A. Shoufler has worked in education and communication in an array of settings. In her current role, Carey has spent the last 17 years working as the Law Related Education Director for the Idaho Law Foundation. Carey utilizes her experience as an educator to provide leadership and management for a statewide civic education program. She obtained her bachelor’s degrees in English Literature from Mills College in Oakland, California and her master’s degree in Instructional Design from Boise State University. A native Idahoan, Carey returned to Boise in 1999 after working for 13 years as a teacher and educational administrator in Boston. When not working, Carey likes to walk her dogs, knit, read, bake pies, and spend time with her grandchildren.

ABA Midyear Report by R. Jonathan Shirts

Posted on May 2, 2024 | updated: May 2, 2024

by Jonathan Shirts

A sign greeting attendees at the Kentucky International Convention Center. Photo by R. Jonathan Shirts.

This year’s American Bar Association Midyear meeting was held in Louisville, KY from January 31 to February 5. For a baseball nerd like myself, I’ll admit I was a little excited when I found a break in my schedule that allowed me an opportunity to visit the Louisville Slugger Museum and Factory – not every day you get to hold bats that were used in games by Hall of Famers Carl Yastrzemski and Babe Ruth. (I might be a Red Sox fan and 1920 still stings, but my kids absolutely love the Sandlot, so a chance to hold a bat used by “the Great Bambino, the Sultan of Swat, the Titan of Terror, the Colossus of Clout,” [i] was something I couldn’t pass up). If you ever get a chance to visit Louisville, I highly recommend a visit – there’s a behind-the-scenes tour of the factory that lets you watch how the bats get made. I wasn’t able to get to the other great Louisville attraction – Churchill Downs – but there wasn’t the excitement there the first weekend in February like I’m sure there will be the first weekend in May.

A bat notched by Babe Ruth for each of his first 21 home runs in 1927. Photo by R. Jonathan Shirts.

Outside of baseball, there are a number of things that happen in and around the ABA’s Midyear Meeting. Each Midyear Meeting, the ABA’s Judicial Division puts on a major event – the Judicial Clerkship Program. This program is designed to put together law students and judges from across the country and from every level, State and Federal.[ii] This year, “[n]early a hundred students from 21 law schools around the country got an up-close-and-personal look at what it’s like to work as judicial clerks.”[iii] Every judge and law student I had an opportunity to speak with about this program raved about it, especially the law students, who also expressed their appreciation for the opportunity to get to know and work with these judges. As a law student not-so-long-ago myself, I had the opportunity to be involved with the ABA and the ABA’s Judicial Division in particular. The Judges I met and worked with during that time made an enormous difference in my life, and I now consider many of them to be great friends. The Midyear Meeting next year is in Phoenix[iv] – much closer to Boise, and warmer, too – and I would encourage any Judges reading this (active, past, or retired) to consider participating in this program. For anyone from a law school, this is an amazing opportunity for your law students – especially those that are traditionally underrepresented.

The lead-up to the House of Delegates meeting was packed with meetings and ceremonies honoring some amazing lawyers from across the country. During the last couple years, I have been able to get to know two individuals who were honored this year with Spirit of Excellence Awards:[v] Capt. Benes Z. Aldana and Juan Thomas. They are both true trailblazers, with stories that are truly inspiring, and getting to know them, and many others like them, is one of the greatest things I’ve been able to do through the ABA. How else could someone like me – born and raised in tiny towns in Southern Utah, graduate of a North Idaho high school, and a first-generation lawyer – have the opportunity to rub shoulders with legal leaders like that? It’s humbling, yet exciting.

Throughout the entire Midyear Meeting, there were a great number of conversations about the future of the ABA and how to make membership more valuable and attractive. I would venture a guess that many people who pick up this issue of The Advocate won’t read this article; it will just be skipped because “ABA” is in the title. So why aren’t more Idaho lawyers interested in joining the ABA? I’ve heard from some attorneys that they don’t feel the ABA is “right” for them, that it doesn’t represent their interests, or that it costs too much. While I would love to have a conversation with each person reading this, individually, that’s a tall task, so let me have a hypothetical conversation with each of you:

You: “What is the point of the ABA? What does it even do?”

Me: “The ABA is primarily made up of volunteer lawyers and judges who are trying to ‘Advocate for the Profession, Eliminate Bias & Enhance Diversity, Serve [Its] Members, and Advance the Rule of Law.’”[vi]

“OK, but what does that mean to me as an Idaho lawyer?”

“Well…”

“Exactly. And it’s not like I can find anything on that website anyway…”

“Oh, I know – I swear it’s being worked on.”

“So, the website’s broken, and it’s going to cost me extra because the ABA just raised dues…”

“Yes, but it’s the first time since 2015 and the increase is only $45 a year, $0.12 a day…”[vii]

“OK, that’s all good and fine, but why should I spend even just a little more of my very hard-earned cash to join something that’s just an ‘old man’s club?’ Or that will only advocate for me if I believe in the same thing as people who don’t have the same beliefs as me? What’s in it for me, personally?”

“Well, here are a couple reasons I think ABA membership could be worth it for you: First – there are over 500 CLE included for members…”[viii]

“Wait, did I hear that right?”

“Yes, you did. Isn’t your CLE reporting period coming up the end of this year? I’d challenge you to find that many CLEs for that cheap somewhere else.”[ix]

“OK, what else? You have my attention, for about 30 seconds…”

“Second, what are you interested in as part of your practice? Construction Law? There’s a Section for that.[x] Intellectual Property Law? There’s a Section for that.[xi] Family Law?[xii] Health Law?[xiii] Environmental Law?[xiv] Yeah, there are Sections for each of those, too.

Or are you looking for something that isn’t just in a specific area? For instance: Do you need some help running your law practice?[xv] Are you currently thinking about hanging your own shingle or already running a solo or small firm?[xvi] Maybe you haven’t been practicing that long and are looking for a place where everyone around you is going through the same challenges with student loans and getting used to billable hours?[xvii] There is a home for each of those in the ABA.”

“So, what makes the ABA so important to you?”

“Personally? Well, I’ve been part of the Judicial Division[xviii] since I was elected to be the ABA Representative my 1L year of law school. Because of that, I have been able to get introduced to State and Federal judges and justices from across the country. But I’ve also been able to get to know attorneys in various practice areas around the country with my role as the Idaho State Bar’s Delegate to the ABA’s House of Delegates. I am also currently serving as the Judicial Division’s Liaison to the Commission on Lawyer Assistance Programs,[xix] and as a member of the Judicial Security Committee.[xx] Because of my membership on the Judicial Security Committee, I was able to present a Resolution to the ABA House of Delegates last year,[xxi] and as a result of that effort, the Judicial Security Committee will be presenting another Resolution this August in support of a newly introduced bi-partisan Senate Bill[xxii] that would create a State judicial threat intelligence and resource center at the State Justice Institute.”[xxiii]

The point I’m trying to make to each of you is that the ABA has a place for everyone if you want it. As John F. Kennedy famously said when he paraphrased Edmund Burke, “The only thing necessary for the triumph of evil is for good men to do nothing.”[xxiv] I am not content with doing nothing, which is why I am grateful for the opportunities the ABA has presented me to make a difference and do something. This Midyear Meeting, for example, the House of Delegates passed Resolutions regarding academic freedom standards for law schools,[xxv] more transparency and enforcement regarding how deaths in custody are reported,[xxvi] and the plight of Native Americans – especially women – who are at a higher risk of abduction or violence.[xxvii] As the new Executive Director of the ABA said, the ABA is and should be the “ultimate resource” for every attorney across the country.[xxviii] It has been for me, and I know it could be for each of you, regardless of whether you’ve been practicing for just a couple months or for a couple of decades.

But if all of this hasn’t been enough to convince you that membership in the ABA is worthwhile, a report was published that details what impact the ABA has had in advancing the rule of law, both here in the United States and across the world – it’s worth a read.[xxix] As always, please feel free to contact me – I’d be happy to have an individual conversation with anyone who has questions about how the ABA might be able to help them.

[i] The Sandlot (Twentieth Century Fox 1993).

[ii] To learn more about this program and what opportunities it provides law students and judges, please visit https://www.americanbar.org/groups/judicial/events_cle/jcp/.

[iii] https://www.americanbar.org/news/abanews/aba-news-archives/2024/02/judges-court-diverse-law-students/.

[iv] https://www.americanbar.org/groups/departments_offices/meetings_travel_dept/future-past-meetings/.

[v] The Spirit of Excellence Awards are given at each Midyear Meeting to honor and celebrate “the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession.” https://www.americanbar.org/news/abanews/aba-news-archives/2023/11/aba-2024-spirit-of-excellence-honorees/.

[vi] https://www.americanbar.org/about_the_aba/.

[vii] https://www.americanbar.org/news/reporter_resources/midyear-meeting-2024/house-of-delegates-resolutions/177c/.

[viii] https://www.americanbar.org/cle-marketplace/cle-library/.

[ix] While the ABA has done a lot of work to verify the CLE it offers are accepted in most jurisdictions, don’t just take my word that everything will be accepted. To paraphrase Ronald Regan, “Trust, but verify [with the Idaho State Bar].” https://isb.idaho.gov/licensing-mcle/mcle-info/.

[x] https://www.americanbar.org/groups/construction_industry/.

[xi] https://www.americanbar.org/groups/intellectual_property_law/.

[xii] https://www.americanbar.org/groups/family_law/.

[xiii] https://www.americanbar.org/groups/health_law/.

[xiv] https://www.americanbar.org/groups/environment_energy_resources/.

[xv] https://www.americanbar.org/groups/law_practice/.

[xvi] https://www.americanbar.org/groups/gpsolo/.

[xvii] https://www.americanbar.org/groups/young_lawyers/.

[xviii] https://www.americanbar.org/groups/judicial/.

[xix] https://www.americanbar.org/groups/lawyer_assistance/.

[xx] https://www.americanbar.org/groups/judicial/committees/judicial-security/.

[xxi] https://www.americanbar.org/news/reporter_resources/annual-meeting-2023/house-of-delegates-resolutions/200/.

[xxii] https://www.congress.gov/bill/118th-congress/senate-bill/3984/all-info I can’t take credit for anything related to this bill, but most legislation relating to judicial security – proposed and passed – for the last few decades has focused only on the judges themselves. This is the first major piece of legislation since that Resolution was passed, and it specifically highlights the impact of threats on judicial staff, as well as judges. Correlation or coincidence? I don’t know, but I’d like to imagine someone who might have helped draft this bill heard about our Resolution last year highlighting the impact on judicial staff and considered it.

[xxiii] https://www.sji.gov/.

[xxiv] Reuters investigated the claim that Burke said this exact quote and could not find anything that supported that claim. See Reuters Fact Check, Edmund Burke did not say evil triumphs when good men do nothing, Reuters.com (Aug. 9, 2021, 11:33AM MDT) https://www.reuters.com/article/idUSL1N2PG1EY/ (last accessed 03/29/2024). From that article, “Burke did say something resembling the quote in his ‘Thoughts on the Cause of the Present Discontents’ (1770): ‘When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.’”

[xxv] https://www.americanbar.org/news/reporter_resources/midyear-meeting-2024/house-of-delegates-resolutions/300/.

[xxvi] https://www.americanbar.org/news/reporter_resources/midyear-meeting-2024/house-of-delegates-resolutions/506/.

[xxvii] https://www.americanbar.org/content/aba-cms-dotorg/en/news/reporter_resources/midyear-meeting-2024/house-of-delegates-resolutions/504/.

[xxviii] https://www.americanbar.org/news/abanews/aba-news-archives/2024/02/midyear-2024-aba-exec-director-address-hod/.

[xxix] https://www.americanbar.org/news/abanews/aba-news-archives/2024/02/aba-impact-report-2023-achievements/.