Author: Lindsey Welfley

Stephen L. Adams

There are many statutes that deal with attorney fees in cases involving governmental entities. Three examples include Idaho Code § 12-117, which awards attorney fees in any case involving, “as adverse parties a state agency or a political subdivision and a person,”[i] I.C. § 6-918A, which provides for attorney fees in tort claims act cases, and I.C. § 12-121, which provides for attorney fees wherever a case is “pursued or defended frivolously, unreasonably or without foundation.”[ii]

These three statutes are just a few of the attorney fee statutes or sources applying to governmental cases. However, there are many others, such as when a commercial transaction or employment claim is involved,[iii] when there is a constitutional issue in a case,[iv] when there is a public records act claim,[v] or when there is a public bidding challenge.[vi] Despite this, the three statutes identified previously will be the focus of this article.

At first blush, it seems that any or all of these statutes may apply to a case involving a governmental entity. However, Idaho case law is far from clear on this issue. This article discusses how these statutes operate, the Idaho Supreme Court’s repeated insistence that certain of these statutes are the exclusive source of attorney fees, the history of this exclusivity case law, and how to address it.

Application of Attorney Fee Statutes

Idaho Code §§ 12-117, 12-121, and 6-918A are fairly common attorney fee statutes that apply in lawsuits against governmental entities (outside of federal claims).[vii] They each apply in slightly different circumstances.

When a tort claim is brought against a governmental entity, the primary attorney fee statute is I.C. § 6-918A, which states, “[a]t the time and in the manner provided for fixing costs in civil actions, and at the discretion of the trial court, appropriate and reasonable attorney fees may be awarded to the claimant, the governmental entity or the employee of such governmental entity, as costs, in actions under this act, upon petition therefor and a showing, by clear and convincing evidence, that the party against whom or which such award is sought was guilty of bad faith in the commencement, conduct, maintenance or defense of the action.”[viii]

This language suggests a number of factors related to the application of this statute. First, it applies in tort act claims. Second, the award of attorney fees is discretionary, and not mandatory.[ix] However, this discretion appears to be intertwined with the third factor, which is that attorney fees may only be awarded under this statute if there is a finding by the trial court of bad faith by clear and convincing evidence. “The standard in section 6-918A is a high bar[.]”[x] “Bad faith is defined as dishonesty in belief or purpose.”[xi] Thus, the trial court may exercise its discretion to award attorney fees only after it has found a party acted in bad faith.

In contrast, I.C. § 12-117 has a more general application. “Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing the proceeding, including on appeal, shall award the prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law.”[xii]

Based on this language, this statute applies to any case involving, as parties, agency/subdivision and a person, and is not based on the nature of the action. Unlike I.C. § 6-918A, it is mandatory, as it contains the word “shall.”[xiii] Thus, there is no discretion about whether fees are awarded under the statute. However, “I.C. § 12–117 requires a losing party to have acted frivolously or without foundation before fees may be awarded.”[xiv] The decision as to whether a party acted frivolously or without foundation appears to be discretionary.[xv]

Finally, under I.C. § 12-121, “In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation.”[xvi]

This language applies to any civil case, regardless of the parties or the nature of the action. Unlike I.C. § 12-117, the award is discretionary. However, like I.C. § 12-117, that discretion is bound by the requirement that the case be brought or defended frivolously or without foundation. Without going into the plethora of cases that explain this language, a simple way of looking at this statute is, “Where questions of law are raised, attorney fees should be awarded under I.C. § 12–121 only if the nonprevailing party advocates a plainly fallacious, and, therefore, not fairly debatable, position.”[xvii] Stated another way, “When deciding whether attorney fees should be awarded under [§] 12-121, the entire course of the litigation must be taken into account and if there is at least one legitimate issue presented, attorney fees may not be awarded even though the losing party has asserted other factual or legal claims that are frivolous, unreasonable, or without foundation.”[xviii]

As with all attorney fee situations, the availability of attorney fee awards is taken from the perspective of the American Rule, “which requires a party requesting attorney fees on appeal to cite either statutory or contractual authority in support.”[xix] As a result, awards of attorney fees are often a matter of statutory interpretation.[xx] In other words, attorney fees are not a matter of right in Idaho and should be hard to get.

Attorney fees may be exclusively available under only one statute

Even if attorney fees should be hard to get, the situation need not be as confusing as it is. Idaho’s appellate courts have not made it easy to figure out which statute parties may rely on. In a 2013 article about this exact same issue, it was pointed out that Idaho case law is extremely confusing as to whether any particular attorney fee statute is exclusive in a given situation.[xxi] The article noted numerous cases between 1996 and 2013 holding that I.C.§ 6-918A was exclusive where it applied, and numerous cases holding that I.C. § 12-117 was exclusive where it applied.[xxii] During the same time period, there were at least eight other cases involving governmental entities where the exclusivity of these statutes was not noted, and fees were awarded under other statutes.[xxiii] Consequently, it was difficult to know which fee statute applied when a governmental entity was involved in a lawsuit.

The situation has not gotten any clearer since then. In 2013, the Supreme Court seemed to make some headway as to the whether attorney fee statutes are exclusive when a governmental entity is involved, stating in Syringa Networks, “we hold that section 12–117(1) is not the exclusive basis upon which to seek an award of attorney fees against a state agency or political subdivision, but attorney fees may be awarded under any other statute that expressly applies to a state agency or political subdivision, such as sections 12–120(3) and 12–121.”[xxiv] This language was upheld a year later in an April 2014 opinion.[xxv]

However, in a June 2014 opinion, the Supreme Court went into detail about the exclusivity between I.C. §§ 12-117 and 6-918A, and held that 6-918A is exclusive where it applies.[xxvi] The Supreme Court followed this up with two 2020 opinions further confusing this matter, holding that “section 12-121 is not applicable because section 12-117 is the exclusive means for awarding attorney fees for the entities to which it applies.”[xxvii] Thus, if there ever was clarity on the issue of exclusivity, it has sunk again into a quagmire of conflicting opinions.

A brief history of statutory exclusivity

As discussed, attorney fees are only available if there is a statute that provides for them. Thus, application of attorney fee statutes should turn on interpretation of the statutory language. In looking at these three statutes, the only one of them that utilizes the word “exclusive” in any form is I.C. § 6-918A, which states, “[t]he right to recover attorney fees in legal actions for money damages that come within the purview of this act shall be governed exclusively by the provisions of this act and not by any other statute or rule of court, except as may be hereafter expressly and specifically provided or authorized by duly enacted statute of the state of Idaho.”[xxviii] Neither I.C. § 12-117 or 12-121 mention exclusivity. Therefore, how and why have courts interpreted these statutes as exclusive?

As far as the author can tell, the first case discussing exclusivity of fees is Camp v. Jiminez, a 1984 case in which the Idaho Court of Appeals noted that I.C. § 12-121 was not exclusive of other potentially applicable statutes.[xxix] The Court utilized similar language in 1988 when it found that I.C. § 32-704(2) was not the exclusive source of attorney fees in a divorce action, and that “I.C. § 12–121 applies to all civil actions.”[xxx] In other words, neither of these two cases held that a fee statute was exclusive.

The first case where a fee statute was held to be exclusive was the 1989 case Kent v. Pence, where the Court of Appeals noted that I.C. § 6-918A was exclusive as to cases involving the Tort Claims Act.[xxxi] This analysis was based on the language of § 6-918A which, as noted previously, states that the statute is exclusive. Kent, oddly, relies on language from Packard v. Joint Sch. Dist. No. 171, a 1983 case which does not discuss exclusivity, and even analyzes both §§ 6-918A and 12-121.[xxxii] Regardless, Kent appears to be the first case discussing statutory exclusivity.

After Kent, in Tomich v. City of Pocatello, the Idaho Supreme Court again discussed exclusivity of § 6-918A over § 12-121, noting that § 6-918A is both the later and more specific statute, and therefore it applies when there is a conflict.[xxxiii] In applying these canons of construction, the Supreme Court did not actually state that a conflict occurred; it merely decided to apply § 6-918A as the relevant fee statute.

The exclusivity issue appears to have jumped to I.C. § 12-117, like a contagious disease, for the first time in 1996. In Roe v. Harris, the Idaho Supreme Court discussed the “interplay between I.C. § 12–117 and the private attorney general doctrine.”[xxxiv] After substantial discussion about prior caselaw discussing exclusivity, the Supreme Court again turned to the canon of construction that new and more specific statutes control when there is a conflict.[xxxv] In doing so, the Court found a conflict in the language of § 12-117 and the attorney general doctrine (which it compared to I.C. § 12-121) because the two statutes were different in how attorney fees were awarded (“the private attorney general doctrine considers the value of the prevailing party’s contribution, while I.C. § 12–117 considers the character of the losing party’s case.”).[xxxvi] However, they did not note that the actual language of § 12-117 and 12-121 conflicted; only that they were different.

This brings us to State v. Hagerman Water Right Owners, Inc. (HWRO), a 1997 case which appears to be the genesis of most exclusivity language in later cases discussing attorney fee statutes. In that case, it simply says, “I.C. § 12–117 provides the exclusive basis of an award of attorney fees against a state agency.”[xxxvii] Hagerman relies on Roe v. Harris for this analysis and does not include any discussion of conflict between statutes.

There is no need for attorney fee statutes to be exclusive

Neither the statutory language nor the historical case law justifies the rampant and confusing rulings discussing exclusivity of attorney fee statutes in governmental entity cases. Exclusivity with regards to I.C. § 6-918A makes sense, as the statute clearly says that it is exclusive where it applies. However, neither I.C. § 12-121 nor § 12-117 contain language mandating exclusivity. To the extent that exclusivity has arisen out of the context of a “conflict” between statutes, only Roe discusses a conflict, and that conflict is based on a statute (§ 12-117) and a common law attorney fee doctrine. There was no actual statutory language discussed which was shown to conflict.

In reviewing these three attorney fee statutes, they do not conflict; instead, they all do the same thing, but in different ways. As noted, awards under I.C. § 12-117 are mandatory where they apply, whereas awards under I.C. § 12-121 are discretionary. However, both require a similar analysis as to the level of conduct necessary to support an award. There is nothing in either statute that suggests the legislature intended one to apply over the other. Indeed, I.C. § 12-117 begins with, “[u]nless otherwise provided by statute,”[xxxviii] which suggests that it may be intended to give way to other statutes. Regardless, there is nothing in these two statutes that indicates a judge cannot analyze both separately to determine whether attorney fees are available under both, either, or neither.

Frankly, the entire discussion of exclusivity of attorney fee statutes appears to be based on a misapplication of Roe. Roe, in turn, seems to misapply the “later in time” and “more specific” canons of construction. These canons only apply if statutes cannot be reconciled.[xxxix] Roe provided no explanation of the conflict and does not appear to have attempted to reconcile the two statutes. Based on their plain language, I.C. § 12-117 and I.C. § 12-121 could both be applied to a given case, and one or both may allow for an award of fees. Nothing about this constitutes a conflict. Further, to the extent that Hagerman (and ostensibly Roe) was abrogated by Syringa Networks,[xl] there is no reason why the Supreme Court shortly jumped back to interpreting attorney fee statutes as exclusive without mentioning Syringa. As a result, there appears to be directly conflicting case law, without any logical reason as to why the conflict exists.

Possible steps to ask for attorney fees

Realistically, clearing up this matter is in the hands of Idaho’s appellate courts or the legislature. However, as a practical matter, when it is impossible to determine which statute is the exclusive attorney fee statute, or whether there is even an exclusive attorney fee statute, a practitioner should make arguments under every potentially applicable statute. As demonstrated, the legal standards to various statutes are not identical, but they are similar enough that making multiple arguments should not create substantial extra work. Then, because it is unclear which statute may apply, the practitioner should ask the court for findings under each potential statute. This way, even if the matter is appealed, the trial court will have addressed all potential statutes, and the matter is less likely to be remanded for additional findings. In other words, until the Supreme Court clears this issue up, a shotgun approach, which is not usually the best approach for an argument, may be ideal.

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Stephen L. Adams is an attorney with Gjording Fouser, PLLC in Boise. He is a member of the Government & Public Sector Lawyers Section and is on the boards of the Appellate Practice Section and the Idaho Association of Defense Counsel. He also is happily married to a lovely wife and has four kids. He has defended school districts, hospitals, cities, insurance companies, and lots and lots of individuals. Needless to say, he’s tired all the time.

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[i] Idaho Code § 12-117(1).

[ii]  Idaho Code. § 12-121.

[iii] See  Idaho Code § 12-120(3).

[iv] See 42 U.S.C. § 1988.

[v] See Idaho Code § 74-116.

[vi] See Idaho Code § 67-2809(2)(e).

[vii] Though, as discussed, there are many other statutes that apply to specific circumstances.

[viii] Idaho Code § 6-918A.

[ix] “This Court has interpreted the meaning of the word ‘may’ appearing in legislation, as having the meaning or expressing the right to exercise discretion.” Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995).

[x] Hollingsworth v. Thompson, 168 Idaho 13, 24, 478 P.3d 312, 323 (2020).

[xi] Renzo v. Idaho State Dep’t of Agr., 149 Idaho 777, 781, 241 P.3d 950, 954 (2010).

[xii] I.C. § 12-117(1).

[xiii] Rife, 127 Idaho at 848, 908 P.2d at 150. See also Univ. of Utah Hosp. v. Ada Cnty. Bd. of Comm’rs, 143 Idaho 808, 812, 153 P.3d 1154, 1158 (2007) (“The statute is mandatory and we will award attorney fees to the providers if the County did not act with a reasonable basis in fact or law.”).

[xiv] City of Osburn v. Randel, 152 Idaho 906, 910, 277 P.3d 353, 357 (2012).

[xv] Id.

[xvi] I.C. § 12-121.

[xvii] Lowery v. Bd. of Cnty. Comm’rs for Ada Cnty., 115 Idaho 64, 69, 764 P.2d 431, 436 (Ct. App. 1988).

[xviii] Robirds v. Robirds, 169 Idaho 596, 611, 499 P.3d 431, 446 (2021).

[xix] Mortensen v. Stewart Title Guar. Co., 149 Idaho 437, 447–48, 235 P.3d 387, 397–98 (2010).

[xx] Med. Recovery Servs., LLC v. Lopez, 163 Idaho 281, 282–83, 411 P.3d 1182, 1183–84 (2018) (“However, when an award of attorney fees depends on the interpretation of a statute, the standard of review for statutory interpretation applies.”).

[xxi] Stephen Adams, “An Update on Attorney Fees in Cases Involving Governmental Entities”, 56 Advocate 60, 60–61 (2013).

[xxii] Id. at 61 (n. 15).

[xxiii] Id. at 61 (n. 16).

[xxiv] Syringa Networks, LLC v. Idaho Dep’t of Admin., 155 Idaho 55, 67, 305 P.3d 499, 511 (2013)..

[xxv] See Sanders v. Bd. of Trustees of Mountain Home Sch. Dist. No. 193, 156 Idaho 269, 272–73, 322 P.3d 1002, 1005–06 (2014) (relying on Syring Networks to award attorney fees under Idaho Code § 12-120(3)).

[xxvi] Block v. City of Lewiston, 156 Idaho 484, 490, 328 P.3d 464, 470 (2014).

[xxvii] Dep’t of Env’t Quality v. Gibson, 166 Idaho 424, 447, 461 P.3d 706, 729 (2020), reh’g denied (May 7, 2020). See also Lingnaw v. Lumpkin, 167 Idaho 600, 609–10, 474 P.3d 274, 283–84 (2020) (discussing exclusivity of §§ 12-117 and 12-121).

[xxviii] I.C. § 6-918A.

[xxix] Camp v. Jiminez, 107 Idaho 878, 884, 693 P.2d 1080, 1086 (Ct. App. 1984).

[xxx] Hentges v. Hentges, 115 Idaho 192, 197, 765 P.2d 1094, 1099 (Ct. App. 1988).

[xxxi] Kent v. Pence, 116 Idaho 22, 22–23, 773 P.2d 290, 290–91 (Ct. App. 1989).

[xxxii] Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 614, 661 P.2d 770, 780 (Ct. App. 1983).

[xxxiii] Tomich v. City of Pocatello, 127 Idaho 394, 400, 901 P.2d 501, 507 (1995).

[xxxiv] Roe v. Harris, 128 Idaho 569, 572, 917 P.2d 403, 406 (1996), abrogated by Rincover v. State, Dep’t of Fin., Sec. Bureau, 132 Idaho 547, 976 P.2d 473 (1999).

[xxxv] Id. at 572–73, 917 P.2d at 406–07.

[xxxvi] Id. at 573, 917 P.2d at 407.

[xxxvii] State v. Hagerman Water Right Owners, Inc. (HWRO), 130 Idaho 718, 726, 947 P.2d 391, 399 (1997), abrogated by Syringa Networks, LLC,155 Idaho 55, 305 P.3d 499.

[xxxviii] I.C. § 12-117(1).

[xxxix] Hyde v. Fisher, 143 Idaho 782, 786, 152 P.3d 653, 657 (Ct. App. 2007). See also 73 Am. Jur. 2d Statutes § 161.

[xl] Syringa Networks, LLC,155 Idaho at 67, 305 P.3d at 511.

Rachel L. Kolts

I was inspired to pursue a career in public service from a young age thanks in large part to my parents, who have each enjoyed life-long careers in public service. My career as a public service attorney has been and continues to be, incredibly rewarding and fulfilling. I often speak about the many positives of pursuing a career in public service and recommend it to anyone who expresses an interest in it.

I reached out to a handful of public service attorneys throughout the state, ranging from the city level to the federal level, each with unique career paths, and asked them to share their insights and perspectives on working in public service. Here is what they graciously shared with me.

Mia Bautista

Mia Bautista worked in the Latah County Prosecutor’s Office from the second semester of her 2L year up to graduation, where she gained a significant amount of hands-on experience handling the prosecution of cases. She then accepted a position with the Nez Perce County Prosecutor’s Office where she worked as a Deputy Prosecutor for 10 years. Wanting to work in the same town she was residing in, Mia accepted a position with the Latah County Prosecutor’s Office in Moscow and held the roles of Deputy Prosecutor and Senior Deputy Prosecutor. Six years later, she was appointed to the position of City Attorney for Moscow in 2018 and has held that position since. Mia is the first woman to be appointed as the City Attorney for Moscow.

Q: What inspired you to pursue a career in public service?

A: My life experiences from my earliest memories of childhood through to high school are what drove me to want to have a career in public service, a career where I could make a difference in people’s lives and positively contribute to society for the greater good. I often think of the quote from Martin Luther King, where he said, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” This quote captures my motivation to continue in public service.

Q: What do you like most about being a public service attorney?

A: Early in my career I liked being a voice for not only the state’s interest in the way in which I prosecuted cases, but for the victims and children impacted by crimes. I liked being a part of a solution to help people who in a weak moment made a bad decision, and then tried to find a solution that addressed the root issues and one that would help not only the person who committed the crime, but those who were impacted by the crime. As I have transitioned out of prosecution work and now work as the legal advisor to the City and its representatives, I enjoy providing a broader level of support and guidance to those who make decisions for the City with the public’s best interest in the forefront of their decision making.  

Q: What has surprised you about being a public service attorney?

A: There are many nuances to the law, both civil and criminal, where there always seems to be a situation where it’s a “first impression” issue. I’m constantly learning.

Q: What motivates you to remain in public service?

A: The same motivation that drove me to a career in law.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service? 

A: If your motivation for work is simply based on the amount of money in your paycheck, public service is not for you. If you want to be able to go home at night and know that you played a role in bettering your community, then public service is the type of career you should pursue.

Terry Derden

Terry Derden’s original goal was to work for the FBI, but after his first summer internship with the Boise City Prosecutor’s Office, he was completely sold on being a prosecutor. Following graduation, he worked as a prosecutor and Deputy City Attorney with the City of Boise for 12 years. Thereafter, he was offered a job with the Ada County Sheriff’s Office as their Chief Legal Advisor (the Chief Legal Advisor is a member of the Sheriff’s Executive Staff and essentially acts as in-house counsel for the Sheriff of Ada County). Terry will be starting his seventh year as counsel for the Sheriff in June 2023.

Q: What inspired you to pursue a career in public service?

A: Both of my parents were public service attorneys. My mother worked as a deputy attorney general in the appellate division, before moving to be the staff attorney for the Idaho Supreme Court for more than 20 years. My father served as an Assistant United States Attorney for his entire career, retiring as the Criminal Chief in Idaho after 32 years. Through them I was able to meet so many people in public service as prosecutors, defense attorneys, police officers, federal agents that I knew that I wanted to help keep my community safe and work in public service.

Q: What do you like most about being a public service attorney?

A: My favorite thing about being the in-house counsel for the Sheriff these last 7 years has been the variety of what I get to work on day to day. Instead of “Chief Legal Advisor” my title should be “Problem Solver Du Jour.” The variety and scope of what I am asked to work on was also why I loved being a deputy city attorney.  Every government entity gets presented unique problems on a regular basis and it is up to “the attorney” to go understand the problem and find a solution for the client. As opposed to private counsel who usually develop a specialty over the years, I feel like my practice areas broaden every year as we deal with new problems and situations.

Before taking this job, I had never once researched RLUIPA nor ever thought about whether an inmate in jail has a religious right to possess a marijuana plant as part of his religious beliefs (in that one, he was satisfied praying to a drawing of one once we told him he can’t have contraband in the jail) nor did I have ever consider how to legally create an agreement between two county sheriffs so a contract city police department can operate in two different counties at the same time (which was needed once Star, Idaho annexed land into Canyon County so that their city police could have jurisdiction to operate in both Ada and Canyon). Those are the kind of big and small problems I get assigned every day because the Sheriff has a problem and now needs a solution.

Q: What has surprised you about being a public service attorney?

A: The people I have been able to meet and the places I have gotten to go because of this job has been the most surprising. I did not have big plans to become a national speaker or trainer, but as I developed my specialty in the law surrounding “use of force” for police, I have been invited to train or teach all over the country. I have found delivering a keynote to a big audience or doing a two to three hour training with a group of police officers who are hungry to learn how they can be better is a similar feeling to being in a big trial where you have to rely on your knowledge and your persona to get your points across and move the needle in the right direction. It is extremely satisfying in this day and age when I realize that I have an entire room full of people actually engaged in what is being talked about (and not just looking at their phones) because they are finding value in what I am presenting and can use it to be better at their jobs, avoid liability, and keep their communities safer. My hope is that the effort I am making to get that room full of cops to think about how they apply force to a suspect may mean they avoid an excessive use of force incident, avoid injuring someone, avoid a federal lawsuit, but also keep themselves safe so they can go home to their family when their shift is over.

Q: What motivates you to remain in public service?

A: My parents told me (and demonstrated) that I should live a life of service to others and give back to this world in some way to repay what I was given in terms of my life and my opportunities. While I am now teaching my sons to have that same philosophy on life regardless of the career they choose, I also realize that I was very lucky to have been raised in a place like Boise. I am very thankful that I got the chance to go to law school and I am very grateful that I can do this work as Chief Legal Advisor to assist the Sheriff in making policy decisions and political decisions that really affect change for the community. I have a strong sense that my work here helps the Sheriff and deputies here in Ada County provide a safe place for the citizens to live, work, and play. I am happy to do my part to make sure other families feel as lucky to live here as I do with my wife and sons.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: Good advice for someone in public service is to be curious and willing to learn. A supervisor once told me that her favorite thing about me when I first worked for her was that when my court case work was done for the day, I came into her office and asked if she had something I could work on. Once I proved I could help with her civil advice projects, she started looking for interesting things to give me to work on so I could expand my knowledge and eventually move up to her level. She and I went on to become great friends and I am always flattered when she calls me these days to ask for my help or opinion on something she is working on! She told me she appreciated that my work ethic meant I was always ready to tackle the next thing. In that same way, being willing to learn and step outside my comfort zone to take on a new client, a new project, or a new case has always been a benefit to me.

Andrea Fontaine

Andrea Fontaine served multiple clerkships before joining the City of Boise as a Deputy City Attorney. After her time with the City of Boise, she joined the law firm of Hawley Troxell, where her primary clients were governmental or quasi-governmental in nature. Andrea then joined the law firm of Anderson, Julian & Hull, where her clients were governmental entities – primarily school districts and charter schools. Thereafter, she accepted the position of Associate General Counsel, and now General Counsel, for the College of Western Idaho, where she has been for the past three and a half years.

Q: What inspired you to pursue a career in public service?

A: I am not sure that I was inspired to pursue a career in public service so much as I was just naturally attracted to both the work and the environment in which it takes place. Public service just always seemed to be the next logical step for me. I could not attribute my decisions to one inspirational moment or person, though I am sure that the wonderful attorneys I have met who have been on the frontlines for education in Idaho have certainly factored into my desire to be in this field.

Q: What do you like most about being a public service attorney?

A: I like the idea of being part of a broader purpose that has the potential to make an impact over a span of time, and, hopefully, on a vast and diverse population of people. For example, while I may not be directly delivering instruction, I am working to ensure the infrastructure for delivery of affordable and accessible education to students is in place. I take pride in knowing I have played some part in the process when I hear student success stories.

Q: What has surprised you about being a public service attorney?

A: I am surprised by how many different people I meet and work with. I have worked with police officers, HVAC instructors, forensic accountants, nurses, and business executives, all in my experience in public service. I suppose any employee in any field could say that, but I do wonder if there isn’t something about being in public service that offers more opportunities to work with all members of the public rather than a limited segment.

Q: What motivates you to remain in public service?

A: I would like to leave my area of practice in a better state than when I found it, much like the proverbial Idaho camp site.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: As with any change in career, the most valuable resources to assist you are typically the personal connections that you have made to others within your desired field. Becoming a member of the Idaho State Bar’s Government & Public Sector Lawyers Section is a great way to make those connections.

Kate Horwitz

After graduating from art school, Kate Horwitz started volunteering with a sexual assault and domestic violence shelter. While there, she was exposed to the state criminal courts and the process of obtaining protective orders for survivors of domestic violence. That led her to law school, after which she clerked for three judges over four years – Judge Robin Cauthron in the Western District of Oklahoma and Judges Mary Beck Briscoe and Robert Bacharach on the U.S. Court of Appeals for the Tenth Circuit. After clerking, Kate joined the Appellate Division in the U.S. Attorney’s Office for the Western District of Oklahoma. Now, as Executive Assistant United States Attorney with the U.S. Attorney’s Office for the District of Idaho, she is pleased to work hand-in-hand with federal law enforcement to prosecute a variety of federal crimes, including intellectual property, civil rights, and child exploitation.

Q: What inspired you to pursue a career in public service?

A: My work with survivors of abuse and rape inspired me to join law enforcement.

Q: What do you like most about being a public service attorney?

A: No doubt, the best part about being a public servant is helping victims of crime obtain justice. While nothing can undo the harm done, obtaining justice for victims is an important part of rebuilding and ensuring the safety of the community.

Q: What has surprised you about being a public service attorney?

A: When I was a young attorney, I underestimated the toll of exposure to difficult subject matters, such as child exploitation. Now, I appreciate the importance of self-care and building the tools necessary to compartmentalize difficult cases.

Q: What motivates you to remain in public service?

A: My colleagues in law enforcement and obtaining justice for victims motivate me to remain in public service. Additionally, the benefit of working in a smaller district is exposure to a variety of challenging legal issues.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: Do it. The value added to your life through work in which you believe can’t be overstated. For those with loans, public service work allows loan forgiveness that can assist with the realities of pursuing work in public service.

Megan Larrondo

A Boise native, Megan Larrondo attended law school at the University of Washington. After graduating law school, she joined the Seattle-based law firm Holmes, Weddle & Barcott, where she primarily practiced maritime personal injury law and Alaska election law for 8 years. Upon her return to Idaho, she spent almost 5 years in the Civil Litigation Division of the Idaho Attorney General’s Office, where she litigated high profile constitutional law issues before accepting a position as a Deputy City Attorney with the City of Boise. Megan is the City’s head in-house civil litigator. 

Q: What inspired you to pursue a career in public service?

A: I wanted the opportunity to practice in areas of law that are typically less available to private practice practitioners. I think of government practice as practicing ‘the law that is in the news,’ which lends some excitement to the everyday work of litigation.

Q: What do you like most about being a public service attorney?

A: I love being on the cutting edge of developing legal issues. When the law is in flux, you can be more creative with the legal arguments you bring before the court and good lawyering can really make a difference.

Q: What has surprised you about being a public service attorney?

A: I have been most surprised by how collegial the practice is. In my experience, private practice did not facilitate the same degree of collaboration that I have experienced in the public sector. I have been able to work with very talented attorneys in the public sector who have helped me grow and develop as an attorney, and I have made good friends through my public sector work.

Q: What motivates you to remain in public service?

A: There is no chance of getting bored. Every day brings a new challenge that I get to address with people who are fun to work with.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: Join the Government & Public Sector Lawyers Practice Section of the Idaho State Bar and attend the monthly meetings to get a flavor of the areas of law that frequently come up. If you are concerned about taking a pay cut in moving to public service, remember to factor in the value of the benefits.

Denise Rosen

Denise Rosen attended the University of Idaho College of Law. While there, she interned at the Nez Perce County Prosecutor’s Office, where she discovered her love and enjoyment of working in public service. Following graduation, she accepted a position with that same office where she worked as a Deputy Prosecutor, and later as the Elected Prosecutor, for approximately 10 years. Denise transitioned to private practice by opening her own law firm and accepted a part-time position as the Chief Deputy Prosecutor for Clearwater County. Life changes took her to Coeur d’Alene where she got back into prosecution full-time with the Kootenai County Prosecutor’s Office. About 18 months later, she joined the Attorney General’s Office as a Regional Deputy Attorney General assigned to the Idaho Department of Health and Welfare, Region 1 in Coeur d’ Alene, where she has been for the past 15 years.

Q: What inspired you to pursue a career in public service?

A: My parents initially inspired me through their work in public service. My mother taught at the high school level. My dad taught at the grade school and junior high levels before becoming a principal. They really instilled in me that we all have an obligation to take part in and give back to our community. It seemed natural for me to enter into the public service world.  For me I was given the gift of the law and I feel that it should be used to help others.

Q: What do you like most about being a public service attorney?

A: What I like most is being in a position to support my clients with their various legal issues. The issues that come up in my practice are unique and varied. Every day is a different challenge and I enjoy being a part of the solution to the extent that I can.

Q: What motivates you to remain in public service?

A: This might be the question where I say the money, benefits and retirement are what motivate me. We all need those, but that is not why I stay. For me, there is a deep desire to make a difference every day. Whether that difference is in the individual lives that are touched by what I do or making a difference for my clients. I hope that my clients have a better understanding of how they impact the law and how important their work is to what the law delivers to others.  The work impacts me every day – it makes a difference in me. I believe I am a better person for having served as a public sector lawyer.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: If you are considering a career in public service, ask yourself why. If you have a desire at all try it, you will be exposed to so many different perspectives of the law that you may have never thought you would enjoy or have a desire to do. A decision to pursue a career in public service, in my opinion, is not one that you will regret.

Shawn Wilkerson

Before entering law school, Shawn Wilkerson was a volunteer guardian ad litem for Idaho’s Sixth Judicial District’s Court Appointed Special Advocate program in Pocatello. During law school, he interned with Sunil Ramalingam, now Judge Ramalingam, who had a public defense contract with Latah County. Upon graduation, Shawn was a contract attorney at a civil law firm for about a year before accepting a position at the State Appellate Public Defender’s Office. Thereafter, he transitioned to another civil firm for two years before accepting a position working for Terry Ratliff, who has a public defense contract with Elmore County. Shawn then joined the Ada County Public Defender’s Office where he currently handles a felony caseload.

Q: What inspired you to pursue a career in public service?

A: I am from Eastern Idaho and was raised in a culture that promotes public service.

Q: What do you like most about being a public service attorney?

A: While this may sound cliché, it’s the small victories that help an individual client. Something as simple as getting an exception to a no contact order so a parent can maintain a relationship with their child by writing letters.

Q: What has surprised you about being a public service attorney?

A: I haven’t been surprised. The workload in my public service positions is comparable to the work load I experienced in the private sector, both as to the quantity and complexity of cases.

Q: What motivates you to remain in public service?

A: The totality of my experiences that brought me into public service provides an ongoing motivation to continue. I really enjoy the support I receive and camaraderie I experience with my co-workers. Idaho’s criminal defense/public defender community is generally tight-knit and supportive. The opportunity to help a client navigate a difficult situation, and hopefully, improve an outcome is satisfying. 

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: You will probably work just as hard as you did in the private sector. Public service provides the ability to directly help an individual or an individual family without constraints based on a client’s ability to afford your services. At the same time, public service, especially criminal defense, requires a unique tenacity, as you navigate difficult fact patterns and complicated attorney-client relationships. Negative outcomes for clients can be especially hard to handle.

Nick Woychick

Nick Woychick attended the University of Idaho College of Law from 1985-88 and graduated cum laude. During that time, he held an externship with the Idaho Supreme Court and worked a summer at Hawley Troxell Ennis and Hawley. Following graduation, he served a two-year clerkship with the Honorable Harold L. Ryan in the United States District Court for the District of Idaho. Upon completion of his clerkship in 1990, Nick joined Hawley Troxell Ennis and Hawley as an associate. In 1995, he left private practice and accepted an appointment as an Assistant United States Attorney in the United States Attorney’s Office, Civil Division. He has worked for the United States Attorney’s Office for the District of Idaho for over 28 years and has held several positions, including Assistant United States Attorney, Senior Litigation Counsel, and Civil Chief.

Q: What inspired you to pursue a career in public service?

A: My career in public service was inspired by several factors, including my interests in assuming more ownership of, and responsibility over, my cases and defensive civil litigation practice; moving toward a more sustainable work-life balance with my young family; practicing with the Assistant United States Attorneys I had met and observed during my two-year clerkship; and securing peace of mind, long-term benefits, and financial security.

Q: What do you like most about being a public service attorney?

A: It is difficult to identify the one thing that I like most about my work in the United States Attorney’s Office. There are several aspects of public service work that I really enjoy, including the ability to spend the time needed to develop cases and confer with colleagues. I also appreciate having access to the vast collection of departmental resources, practice guides and subject matter experts. Working in this office, we also have the luxury of “doing justice,” largely unconstrained by the bottom line or billable hour expectations.

Q: What has surprised you about being a public service attorney?

A: One of the things that surprised me most about my work in the United States Attorney’s Office was the number of quality and talented attorneys who work for the Department of Justice and the United States Attorney’s Office. Many of these attorneys could have easily worked for (and in many cases have previously worked for) nationally renowned law firms. While they all have their reasons for being public service attorneys, it is reassuring to me as an attorney and a taxpayer to know that the federal government’s interests are well represented and in good hands.

Q: What motivates you to remain in public service?

A: The things that inspired me to accept an appointment as an Assistant United States Attorney in 1995 and the things that I enjoy the most about my work in this office continue to be the things that motivate me to remain in public service. At this point in my career, it is hard to imagine working outside the public sector.

Q: What recommendation or piece of advice do you have for attorneys who may be considering switching to a career in public service?

A: I would encourage attorneys who are considering a career in public service to look beyond the immediate financial benefits of private practice and weigh that against the meaningful and gratifying nature of public sector work, job security, pension and health insurance benefits that extend into retirement, a realistic work-life balance, and a collegial work environment that an attorney can experience in the federal system. At the core, attorneys who are contemplating a change should consider “how much is your time worth?” and “how do you want to spend it?” I believed in 1995, and believe even more now, that I made the right choice.

Conclusion

If you are thinking of pursuing a career in public service, I hope these accomplished professionals serve as inspiration.  Their insights and perspectives showcase the opportunities and rewards that come with choosing a path of service for the greater good.

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Alexandra A. Breshears
Emily D. Kane

With special thanks to Julie Weaver for the top 10 article concept and her considerable contribution.

Compliance with laws that govern public agencies may present practical complexities and timelines that occasionally take private practitioners by surprise.  This article includes, in no particular order, a list of the top ten things to know, and some pro tips to use, when dealing with government entities.

1. Contracting with government entities is inherently different from contracting with private entities.

Negotiating contracts with government entities requires awareness of statutory and constitutional restrictions and directives that differ from those typically encountered in the private sector.  Contract terms impacted include those relating to appropriations, assignment, governing law, jurisdiction, arbitration, and waiver of jury trial.

State entities are subject to appropriations and spending authority granted by the Idaho Legislature, while action by local entities requires budgetary approval and signature by their elected officials (or staff designees). For state entities, the Idaho Constitution prohibits any expenditures in excess of legislative appropriations.[i]  State agencies and officers are prohibited from entering into contracts that create any expense or liability in excess of an appropriation[ii] and any such contract is void.[iii]  Additionally, the general legal requirements for payments by Idaho agencies are set by statute.[iv]

For State entities, contracts cannot be assigned without written approval by the Administrator and the Idaho Board of Examiners.[v]  A contract assigned in violation of this provision can be annulled, and the Idaho Controller is prohibited from paying the assignee.[vi]

Negotiating jurisdictional provisions in contracts with State agencies is also subject to unique constraints.  As a sovereign state, the State of Idaho and its governmental entities are not subject to the jurisdiction of the courts of its sister states, and the Idaho Legislature has not consented to the waiver of this limitation by state agencies.  The 11^th Amendment to the U.S. Constitution provides limitations on the jurisdiction of federal courts over claims against the State of Idaho.

State agencies have restrictions on waiving a jury trial, and any term of a contract subjecting a party to arbitration conducted outside the State of Idaho is void.[vii] 

Governmental entities cannot contractually waive their statutory and constitutional mandates, and attempts to do so are voidable, if not void as a matter of law. Local agencies generally follow these principles in negotiating contracts as well – though usually pursuant to policy in order to minimize any risk to public funds, rather than pursuant to a specific statutory mandate.

PRO TIP #1: Be aware of specialized statutory and constitutional requirements when negotiating contracts with government entities.

2. Public agencies cannot extend indemnification or agree to limit liability.

Private entities are accustomed to mutual indemnification provisions in agreements; however, in the governmental context, indemnification is viewed as an obligation of funds that have not been appropriated in the current or a future budget year.  As such, the Idaho Constitution and Idaho Code place limits on the ability of a State entity to indemnify another party.[viii] Similar restrictions exist for local entities.[ix]

For an entity serving the public interest of Idahoans, a request to limit the liability of a contractor is considered to be a matter of public policy. Limitations of liability are authorized only when it is appropriate for the taxpayers of Idaho to bear the risk of the contractor’s breach, or where the limitation is in excess of any reasonable contractor liability under the contract.

Insurance is another key difference when dealing with governmental entities.  State entities participate in the internal State-retained risk program, which is not “insurance” under the statutory definitions.[x] Thus, a private entity may not be added as an “additional insured,” subrogation may not be waived, and policy limits and requirements may differ.

Private entities should consider, however, that even though a government entity may not indemnify another party, the State of Idaho has waived its sovereign immunity for torts as described in the Idaho Tort Claims Act and for contract claims arising from a properly entered contract.[xi] Given the available remedies, the need for indemnification, limitations of liability, or heightened insurance requirements is greatly mitigated.

PRO TIP #2: Public sector attorneys cannot agree to the private sector’s boilerplate indemnity and insurance provisions, but comparable protections are available under the Idaho Tort Claims Act.

3. Public entity authority is the inverse of corporate authority.

Public entities and corporate entities enjoy inverse inherent authorities. State agencies in Idaho have no inherent authority.[xii] In general, state agencies have no authority outside of what the Idaho Legislature “specifically grants to them.”[xiii] Thus, every action of a state entity must be supported by a specific statute. A similar rule applies to local entities: cities and counties may make and enforce ordinances only to the extent that such ordinances do not conflict with Idaho Code.[xiv]

By contrast, corporate entities are permitted to take whatever actions are not specifically prohibited by statute or the corporate bylaws. When government entities and corporate entities interact, the opposing levels of authority can cause confusion and resistance to the numerous limits placed upon a governmental entity’s authority to act.

PRO TIP #3: Work with the public entity’s counsel early in a project or agreement to ensure that the entity is authorized to take the contemplated actions.

4. Transparency’s main ingredients are process and time.

Government agencies’ decision-making is subject to statutory timelines designed to maximize transparency and public participation – though not agility.  Under Idaho’s open meeting laws, the governing board of a public agency is required to provide at least five days’ notice of a meeting, and to publish the agenda at least 48 hours in advance.[xv]

For the benefit of the board as well as the public, several days before the statutory 48-hour window for agenda notice, agencies typically publicly distribute all of the contracts, memoranda, and other materials that will be presented and discussed.  Logistically, this means that the clerk preparing the meeting packet must have the final documents in hand at least two weeks before the meeting.  Specific statutes require additional process and noticing, often weeks in advance.[xvi] Though private lawyers may be able to negotiate edits and changes in direction until moments before their clients make the final decision, noticing obligations compel government lawyers to plan ahead and finalize documents long before their clients take up the matter.

PRO TIP #4: Build in a few extra weeks to your timeline where a government agency is the decision-maker.

5. Non-disclosure agreements may not prevent disclosure, and private conversations may be made public.

Private businesses routinely enter into non-disclosure agreements, but the Idaho Public Records Act (“IPRA”)[xvii] makes this challenging, if not impossible, for public agencies.  IPRA’s general rule is that any “information relating to the conduct or administration of the public’s business” is a public record,[xviii] of which anyone can have a copy upon request.[xix]

There are numerous enumerated exceptions to this rule; for example, IPRA does allow agencies to protect from disclosure of “trade secrets,” as that term is defined by Idaho Code § 74-107(1).  But IPRA does not protect the existence of a contract or the agency’s expenditure of funds.  This means that settlement agreements, information shared in the context of economic development inquiries, and draft contracts may be subject to disclosure.  Even verbal conversations with elected officials must be disclosed, if the topic is a matter to be considered by the agency’s board.[xx]

PRO TIP #5:  Presume that any information you provide to a government employee or official must be publicly disclosed.

6. Schmoozing with government officials acting in quasi-judicial roles is out of order.

In reviewing an application or hearing an appeal, government boards sit in a quasi-judicial capacity,[xxi] which means that members are legally bound to avoid ex parte communications.[xxii]  As with a court hearing, the right to due process entitles applicants and appellants to a decision confined to the record before the decision-maker.  In the context of a decision made by a government board, the public also has a constitutional right to meaningful participation in a public hearing.[xxiii]  This means that off-the-record conversations about pending or upcoming decisions – whether they occur via email, in the grocery store aisle, or over lunch – are improper, because the public is not privy to that exchange. Where such conversations do happen, board members must disclose – on the record – the fact and nature of the discussion.[xxiv]  Practices that are routine in private business: giving decision-makers a preview of a proposal, asking for feedback on conceptual plans, requesting ideas to make a proposal more attractive, are problematic in the context of government board decisions.

PRO TIP #6: Communicate with elected officials regarding pending or upcoming matters only at duly noticed meetings.

7. Governmental ethics (and bribery) laws govern gifts and contracts.

Public officials, including employees, attorneys, elected officials, and even volunteer commissioners,[xxv] are subject to specific ethics laws that protect the integrity of both public funds and agency actions.[xxvi]  For example:

• Public officials cannot accept gifts of $50 or more in value,[xxvii] or of any value where the recipient’s jobincludes making decisions (e.g., awarding contracts, issuing permits, regulatory sign-offs) related to the giver.[xxviii]
• While private companies are free to contract with anyone in their network, including family members, in the public sector, agencies and their employees are not.  It is unlawful for a government employee or a family member to have a private interest in a contract to which the agency is a party.[xxix]
• Public officials who are separately involved in private business are also subject to rules regarding actions taken in their public capacity that would yield a “private pecuniary benefit” to the official or a family member.[xxx]

Agency employees are responsible for adherence to the governmental ethics rules and consequences of a violation, but private practitioners must understand that compliance with governmental ethics laws can take additional time or may even completely bar a transaction, depending on the relationships of the individuals involved.

PRO TIP #7: Use words of affirmation instead of gifts to show appreciation for your public sector colleagues.[xxxi] And when dealing with governmental employees or officials wearing both public and private hats, be aware that governmental ethics laws may have practical effects on the private company’s dealings with that government agency.

8. Procurement can be tricky and take a long time.

State entities are subject to the requirements of the State Procurement Act[xxxii] unless specifically exempted. [xxxiii] The nuances and complexities of the State Procurement Act are outside of the scope of this article; however, suffice it to say that there are many requirements relating to competitive bidding, required contract terms, and bid challenges. There are various types of solicitations, each with their own requirements, as well as general government contracting requirements.[xxxiv] Special industries, including public works, possess additional requirements. There also exist numerous local procurement laws, which are similar to state procurement laws.[xxxv]

PRO TIP #8: When advising a company that is responding to a request for proposals, read the solicitation instructions carefully and be aware of specific laws that may impact your client. If a proposal is not responsive and compliant with law, the government entity may have to disqualify the bid.

9. Collaborative problem-solving is encouraged.

Public sector attorneys typically do not bill their clients by the hour, but like most lawyers, their calendars are full and their time is scarce.  This combination of factors means that government lawyers generally welcome the opportunity to work together to solve a problem, rather than proceeding directly to cross purposes.

The best approach will differ with each issue, but whether it’s a molehill or a mountain, it’s almost always worth having a conversation before filing a complaint.  Even if the process must ultimately become adversarial, an early attempt to collaborate will open the lines of communication and may be fruitful in addressing preliminary and peripheral issues.

PRO TIP #9: Consider, as a first step in resolving a client’s issue with a government agency, contacting the agency attorney to brainswarm ideas for a constructive path forward.[xxxvi]

10. Sharing is caring.

In Idaho, public sector law offices have a long-standing tradition of collegiality.  It is typical for government attorneys to reach out to each another and seek suggestions for solving a problem or share prior experience that might benefit a fellow agency. We freely share templates, experience, and subject-matter knowledge.

This generosity reflects the general civility of the Idaho public sector bar and it extends to our private sector counterparts.  Private attorneys presented with a substantive legal question about a government matter, from land use to procurement to water law, should feel free to cold-call a government lawyer and ask how things work.  For the most part, we are happy to share our knowledge, or a referral to someone with more information.  Not only is this a professional courtesy and a duty of all lawyers,[xxxvii] it is inherent in the public sector culture.  Public service includes accountability to both the public at large, and to our fellow attorneys.

PRO TIP #10: Reach out to your friendly neighborhood public sector lawyer.  We’re from the government, and we’re here to help![xxxviii]

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[i] Idaho Const., Art. VII, § 11; Art. VIII, § 3.

[ii] Idaho Code § 59-1015.

[iii] Idaho Code § 59-1016.

[iv] Idaho Code §67-2302.

[v] Idaho Code §67-9230.

[vi] Idaho Code § 67-1027.

[vii] Idaho Code §29-110.

[viii] See Idaho Const. art VII, § 11; Idaho Code § 59-1015; Idaho Code § 59-1016.

[ix] Idaho Const., art. VIII, § 3.

[x] Idaho Code §§ 67-5773–76.

[xi] Idaho Code Title 6, Chapter 9 (waiving sovereign immunity for tort claims under the Tort Claims Act); Grant Const. Co. v. Burns, 92 Idaho 408, 413, 443 P.2d 1005, 1010 (1968) (waiving sovereign immunity for properly entered contracts).

[xii] In re Idaho Workers Compensation Board, 167 Idaho 13, 20, 467 P.3d 377, 384 (2020) (citing Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 750, 639 P.2d 442, 448 (1981)); see also Richard Henry Seamon, Idaho Administrative Law: A Primer for Students and Practitioners, 51 Idaho L. Rev. 421, 439 (2015).

[xiii] In re Idaho Workers Compensation Board, 167 Idaho at 20, 467 P.3d at 384 (citing Idaho Retired Firefighters Assoc. v. Pub. Emp. Ret. Bd., 165 Idaho 193, 196, 443 P.3d 207, 210 (2019)).

[xiv] Caesar v. State, 101 Idaho 158, 159, 610 P.2d 517, 518 (1980).

[xv] Idaho Code § 74-204(1).

[xvi] See, e.g., Idaho Code § 67-6509 (noticing requirements of Local Land Use Planning Act); Idaho Code § 63-1311A (noticing requirements for adoption of fees); Idaho Code § 50-1402 (noticing requirements for a city’s disposition of real property).

[xvii] Idaho Code §§ 74-101 et seq.

[xviii] Idaho Code § 74-101(13).

[xix] Idaho Code § 74-102(1).

[xx] Idaho Historic Preservation Council v. City Council of Boise, 134 Idaho 651, 656, 8 P.3d 646, 651 (2000).

[xxi] Cooper v. Board of County Commissioners of Ada County, 101 Idaho 407, 410, 614 P.2d 947, 950 (1980).

[xxii] 134 Idaho at 654.

[xxiii] Gay v. County Commissioners of Bonneville County, 103 Idaho 626, 629, 651 P.2d 560, 563 (Ct. App. 1982).

[xxiv] 134 Idaho at 656.

[xxv] Idaho Code § 74-405 (authorizing noncompensated commissioners to “cleanse” a conflict of interest if the transaction is competitively bid and the commissioner submits a low bid).

[xxvi] Idaho Code § 74-402.

[xxvii] Idaho Code §§ 18-1356(5)(c), 18-1359(1)(b).

[xxviii] Idaho Code § 18-1359(1)(b).

[xxix] Idaho Code § 18-1359(1)(d). (There are limited exceptions to this rule where there are less than three (3) suppliers of a good or service within a 15-mile radius (Idaho Code § 18-1361) and for part-time public servants (Idaho Code § 18-1359(7)).)

[xxx] Idaho Code §§ 74-404 (prohibiting public employees from taking any action or making a formal recommendation concerning a matter in which they have an undisclosed conflict of interest); 74-403(4).

[xxxi] See Gary Chapman, The Five Love Languages: How to Express Heartfelt Commitment to Your Mate (1992).

[xxxii] Title 67, chapter 92, Idaho Code.

[xxxiii] See also IDAPA 38.05.01.

[xxxiv] See Title 18, chapter 87, Idaho Code and title 29, chapter 1, Idaho Code.

[xxxv] Title 67, chapter 28, Idaho Code.

[xxxvi] Tony McCaffrey, Brainswarming: Because Brainstorming Doesn’t Work, Harvard Business Review (2014); https://hbr.org/2014/06/brainswarming-because-brainstorming-doesnt-work

[xxxvii] Idaho Rule of Professional Conduct 6.1(b)(3) (lawyers’ responsibility to improve the law, legal system, and legal profession).

[xxxviii] Paraphrasing President Ronald Reagan’s August 12, 1986 declaration of “the nine most terrifying words in the English language.”

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 are available.  These resources can help improve your practice, your personal life, your leadership, and your community involvement.

Join a Practice Section

Probably the most helpful resource to 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.

Practice Sections

Become a member of the following practice sections by visiting the Idaho State Bar website.

• Agricultural Law
• Animal Law
• Appellate Practice
• Business & Corporate
• Child Protection
• Commercial Law & Bankruptcy
• Dispute Resolution
• Diversity
• Employment & Labor Law
• Environmental & Natural Resources Law
• Family Law
• Government & Public Sector Lawyers
• Health Law
• Idaho Legal History
• Indian Law
• Intellectual Property Law
• Litigation
• Professionalism & Ethics
• Real Property
• Taxation, Probate & Trust Law
• Water Law
• Workers’ Compensation
• Young Lawyers

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 and Services to see the specific benefit offerings.

• ABA Publications
• ABA Retirement Funds Program
• ALPS Professional Liability Coverage
• ALPS Attorney Match
• Avis Car Rental
• Brooks Brothers
• Clio
• Identillect Technologies Email Security
• Indexed I/O
• La Porte & Associates Life Insurance
• LawPay Credit Card Processing
• LeanLaw
• localhospitality.com
• The ODP Corporation – formerly Office Depot
• Ohio National Life Disability Insurance
• Verizon Wireless

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 will bring together lawyers from different practice areas with a variety of backgrounds from all across Idaho. IALL will build upon the participant’s leadership skills and 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 2023-2024 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 a large number of important contributors who are not lawyers. Therefore, well-being across the legal profession is an important goal.

The Idaho State Bar Task Force 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 improve your emotional well-being.  We invite you on this journey with us to live better lives!

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Laird B. Stone

These are my last comments as a Commissioner and current Bar President. They will not be as eloquent as President Washington’s or General MacArthur’s farewell addresses to Congress but may at least cause my fellow lawyers to ponder on my musings.

How many times in our life have we heard the phrase, “We are at a critical turning point in our national history?” Almost daily!

If you read the history of each of the 46 Presidencies, you will find that almost everything that we are saying and hearing about has occurred, in some fashion, in the past. The difference is the constant 24/7 cycle for “news.” (I put news in quotes, as a lot of what we get is not news but unsupportable gossip.)

However, just because we are repeating events does not mean that the response has always been the same. It repeats because of the nature of being human. The effect it has on us is up to each of us, individually, and then collectively as groups. Each time a response has been made, there are slight differences, which have improved the conditions in which we find ourselves. This is defined as progress.

We can all create a timeline of our families and list all of the things we have seen and the changes that have occurred in society during those lifetimes.^[i] What we don’t do is take the time to remember and reflect on those changes and the responsibility we have of ensuring that the knowledge and experience is passed on and that we move forward in a positive, non-destructive manner.

Another way to define this: “Today, as the world shifts to an increasingly interconnected knowledge economy, the intersecting forces of technological innovation, globalization, and demographic change create vast new challenges, opportunities, and uncertainties. In this great upheaval, the nation’s most enduring social institutions are at a crossroads.”^[ii]

While this quote is from authors discussing the changes in educational institutions, it is applicable to the legal profession, as well.

As a profession we should address:

How do we deliver legal education? How do we measure competency? How do we ensure continued competency? How do we govern, i.e. are we an individual bar or a national bar with regional governance? How do we provide legal assistance? How do we care for others in our profession? How do we diversify our membership? How do we address societal issues, both political and non-political?

These are all questions we, as lawyers, need to not only ask ourselves but also ask the groups to which we belong, both legal and non-legal. It is an obligation of our profession to confront these issues in an open dialogue and provide guidance in finding those solutions.

So, speak up for what you believe is right. Recognizing that the rights and privileges that we might obtain overlap with the rights and privileges of others, which is too often the forgotten piece when we ponder the “how” questions.

Moving back to the first “how,” are we at a turning point in our history? Yes, but we are also at a turning point in our profession, as defined by the questions raised earlier. In pondering those questions consider that the beauty of our profession is the power to do something for someone.  This is the Rule of Law in its simplest form. This “doing” is not just for others outside our profession but within the confines of our profession. This reality of “doing” is the method by which the answers to the “how” questions can be reached. It must be remembered that those answers will change over time.

Do I have the answer for any of them, which I should put forth? No, but I will be part of the discussion and do the best that I can to resolve those issues, to help our profession move forward as history evolves and addresses the societal questions, political and non-political. I am no learned scholar as some of my colleagues are. As Popeye said, “I am what I am,” a lawyer.  Paraphrasing Lincoln, “I do the best I can with what I have and will let others decide whether I made a difference.” (I can’t wait for the comments about quoting Popeye and Lincoln in the same paragraph.)

As I end my term as a Bar Commissioner in July, I want to thank the lawyers in the Third and Fifth Districts, as well as lawyers from around the State who have supported, in numerous ways, the protection of the Rule of Law and our profession so that we can truly do something for someone. It has been my honor and privilege to have served the Idaho State Bar and to have represented all of you.

Thank you.

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[i].  Trival Note – (The final beneficiary of a civil war pension, Irene Triplett, died in May of 2020.  Triplett had been born in 1930 to an 83 year old Union veteran.)  (A Man of Iron, the Turbulent Life and Improbable Presidency of Grover Cleveland by Troy Senik (9/2022).)

[ii].  (The Great Upheaval, Higher Education Past, Present, and Uncertain Future. Arthur Levine, Scott VanPelt – John Hopkins University Press (2021).)

By Tenielle Fordyce-Ruff

I’m writing this in January, and as one does in January, I’m reflecting on the past year.  I’m also reflecting on topics I’ve covered as I’m coming back to more regular contributions to The Advocate. Turns out that I haven’t given pronouns any coverage for a decade.  And a lot can change in 10 years.  For instance, a decade ago the Boston Marathon was bombed, Whitey Bulger got life in prison, George Zimmerman was acquitted, and Bradly Manning came out as transgender.[i]  Yet, I had to look all of those up because I no longer mention those in conversation.

On a smaller scale, I predicted that the use of the singular they would become acceptable in legal writing.[ii]  After all, even a decade ago we were using they accurately and consistently in speech and informal writing.  It seems that I managed to accurately predict the future.[iii]  Then, in September 2019, Merriam-Webster expanded the definition of they to be an acceptable singular pronoun in some circumstances.[iv]  This means that them, their, and theirs can sometimes be singular, too.

And while I’m sure some grammar noodges’ heads are exploding at my suggestion, legal writing is also embracing the singular they.  For instance, the Michigan Supreme Court has proposed amending its rules to require the use of names or preferred pronouns, including the singular they, in all writing and oral references.[v]

So, as the singular they is now acceptable, how can we legal writers make sure we use it clearly?  Let’s start with a refresher.

Pronoun Refresher

Personal pronouns replace nouns, and the nouns they replace are called antecedents. Pronouns should agree with the antecedents they replace in gender, person, and number. First person pronouns refer to the speaker or writer (I, me, we, us, my, mine, our, ours, myself, ourselves).

Second person pronouns refer to the person being spoken or written to (you, your, yours, yourself, yourselves).

Third person pronouns refer to someone or something else (he, him, she, her, it, they, them, his, hers, its, their, theirs, himself, herself, itself, themselves.)[vi]

Pronoun Issues?

That pronouns should agree with their antecedent in gender hasn’t been strictly followed by speakers and writers for ages.  As the Maryland State Bar noted on its blog, “If you were to see the silhouette of a backlit person on the street, would you ask, ‘Who is he or she?’ Or, like a normal person, would you ask, ‘Who are they?’”[vii]

This usage isn’t shocking.  English has used they to refer to a singular person of unspecified gender for at least 500 years.[viii]  And they has long been acceptable for indefinite pronouns anyone, no one, and someone.  We can easily write: Go ask someone if they can help.

So, what should we do to help our readers with the problem of referring to a person of unspecified gender?  Well, much of my advice from 10 years ago still works.  Change the antecedent or rewrite the sentence to avoid personal pronouns.

Let’s look briefly at each of these fixes.

Replace the Singular Noun

When it won’t confuse the reader, you can change a singular noun to a plural noun.  For instance, you couldn’t write: The professor must teach its students about pronouns.  But a simple fix works:  The professors must teach their students about pronouns.  There is a little twist to this, however.

Because we now are so used to they as a singular and plural pronoun, it’s best to remove other plural nouns to avoid confusion.  I’ll give you an example from my legal writing professor, mentor, and friend: When deciding difficult cases, Judge Wright exercises their discretion carefully.[ix]

The their in this sentence could refer to either the judge or the cases.  The fix to avoid this confusion is to remove the other plural: When deciding a difficult case, Judge Wright exercises their discretion carefully.

Rewrite the Sentence

Avoiding personal pronouns as a fix takes a little more thought but can help avoid awkward sentences.  If you find that you are writing about someone without knowing their gender, you might be able to convey the meaning without a pronoun at all.

As I pointed out previously, A judge must give instructions to the jury is every bit as clear as A judge must give his or her instructions to the jury. (Note, too, how stilted this his or her sounds!)

Likewise, The accused must waive the right to speak to a lawyer avoids personal pronouns by using articles instead of pronouns (The and a are the articles in this example).  This is a great fix when speaking hypothetically.

Using the Single They Correctly

While each of these works, you don’t need to rewrite every sentence to deal with what is for most of us a non-issue.   Simply use they as a singular pronoun.  But do so consistently and carefully.

While each of these works, you don’t need to rewrite every sentence to deal with what is for most of us a non-issue.

First, recognize that you don’t need to use they instead of every other singular pronoun. They can be used when you don’t know the gender of a person or when that person prefers this pronoun.  But if you’re writing about a case, and that case uses he to refer to a party, you can safely use he, too.[x]  Likewise, if you know that someone prefers gender-specific pronouns, use those.  For instance, I prefer she, so you can write: She has written this column for over a decade.

Second, don’t use they and other personal pronouns interchangeably.  Imagine how confused you would be if I wrote this:

Natalie had a sunny disposition.  She greeted me every morning with a cheery hello.  They were always prepared with a kind word.  He also loved to whistle as they walked.

Do you have any idea if I’m writing about one person, or maybe five?  Changing the pronouns for any single person will only create confusion.

Third, think of they like you.  We have been using context to tell if you is singular or plural for decades.  And we have been using context in speech to determine if they refers to one, two, or more people for years.  Our readers can, likewise, glean what they refers to from context, so long as we carefully look at the context of our writing.  Compare these two sentences:

You are my partner.

You are my partners.

Even though the verb are is plural, we know that in the first sentence, the you is singular and in the second the you is plural.  This works equally well with they.

            They are my partner.

            They are my partners.

Conclusion

Careful writers rewrite and edit to ensure the clarity of their ideas.  Giving attention to pronouns and ensuring that the context gives the reader clues about whether they is singular or plural is simply another item on a good editing checklist.

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[i] Jennie Wood, Major National New Stories of 2013, available at https://www.infoplease.com/current-events/2013/us-news-27 (last visiting February 1, 2023).

[ii] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-linked Pronouns, 56-JUL Advocate (Idaho) 48 (June/July 2013).

[iii] Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020); Susie Salmon, Them!, Ariz. Att’y, Oct. 2018, at 10, https://www.azattorneymag-digital.com/azattorneymag/201810/MobilePagedReplica.action?pm=2&folio=10#pg13 [https://perma.cc/7USW-RBET]; Greg Johnson, Welcome to Our Gender-Neutral Future, VT. BAR J., Fall 2016, at 36.

[iv] This isn’t the first time a pronoun has shifted. You used to be only plural and we used thee to refer to a single person.  But we now use you as both a singular and plural pronoun.  Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020).

[v] https://www.courts.michigan.gov/48efd1/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/proposed-orders/2022-03_2023-01-18_formor_propamdmcr1.109.pdf

[vi] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-Linked Pronouns, 56 Advocate 48 (2013).

[vii] Steve Klepper, The Singular “They” in Legal Writing, Maryland Appellate Blog, https://mdappblog.com/2020/06/30/the-singular-they-in-legal-writing/(last visiting February 1, 2023).

[viii] The New Oxford American Dictionary (3d ed. 2010).

[ix] Suzanne E. Rowe, Using the Singular ‘They’ Clearly: Finessing Gendered Pronouns, 82 March Or. St. B. Bull 17 (Feb./March 2022).

[x] If, however, you know the opinion mis-gendered the party, you can correct that error and use the party’s preferred pronouns.  Just do so consistently.

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By Jillian H. Caires

As lawyers, we have a tough job. We work long hours and feel a hefty pressure to obtain the best possible outcomes for our clients. Attorneys meet clients and victims in their hour of greatest need and walk alongside them as they navigate crisis. Our judges see some of the darkest parts of humanity daily. We can all likely empathize with the stress of law school and studying for the bar exam. Additionally, as Idaho lawyers, we go through long, dark winters, which, in my opinion, multiplies the weight we feel as lawyers (thank goodness it is FINALLY spring!).

Most of us have experienced stress from our work – in my career, I have experienced physical manifestations of stress such as a chronically sore shoulder and I have gone through periods of burn out. We have also likely all known colleagues in the legal profession who have self-medicated with alcohol or drugs or been diagnosed with anxiety or depression. One of my law school classmates tragically took his own life several years ago, a shock to those who knew him as an upbeat friend who would lift others up. Sadly, many of us have been touched by this type of tragedy.

The first full week of May is Well-Being Week in Law[1], and May is Mental Health Awareness Month; a month focused on building awareness about, and breaking stigmas around, mental health.[2] “Mental health includes our emotional, psychological, and social well-being. It affects how we think, feel, and act. It also helps determine how we handle stress, relate to others, and make choices.”[3] In a profession where we often tend to the needs of others before our own and in a state with a suicide rate higher than the national average, it is critical that we take time as individuals and as a profession to build our mental health awareness.[4] Maintaining well-being is part of lawyers’ ethical duty of competence.

We are instructed by airline attendants that in case of emergency, we must secure our own oxygen mask first before we help others. The same is true when it comes to taking care of our own mental health and well-being: we must take care of ourselves first if we are to successfully help others. Part of taking care of ourselves is knowing what warning signs to watch for. Some warning signs of mental health problems include: withdrawing from people or activities; eating or sleeping too much or too little; experiencing a drop in energy levels; feeling hopeless; increasing use of substances; and thinking of harming one’s self or others.[5]

As a Board of Commissioners, we took time last fall to develop our strategic vision for the Idaho State Bar. One focus of that strategic vision is supporting the well-being of our members. If you have a passion for well-being, please keep your eyes open for an opportunity to join the Bar’s Well-Being Committee which will soon be formed by the Commission.

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[1] https://lawyerwellbeing.net/lawyer-well-being-week/.

[2] https://www.samhsa.gov/programs/mental-health-awareness-month.

[3] https://www.mentalhealth.gov/basics/what-is-mental-health.

[4] https://www.kff.org/statedata/mental-health-and-substance-use-state-fact-sheets/idaho/.

[5] https://www.mentalhealth.gov/basics/what-is-mental-health.

By Maureen Ryan Braley

The Idaho State Bar Admissions Department administers the rules governing admission to the practice of law in Idaho. Attorneys can be admitted by taking the Idaho Bar Exam, transferring a Uniform Bar Examination (“UBE”) score to Idaho, or through reciprocal admission (admission based on practice experience in another state). The Admissions Department also oversees limited admission to the practice of law in Idaho through a House Counsel license (working in-house for an Idaho employer), Emeritus Attorney license (limited license to do pro bono work), Military Spouse Provisional admission (servicemember spouse is stationed in Idaho), pro hac vice admission, and Legal Intern licenses.

Idaho Bar Exam Statistics

A record number of people took the Idaho Bar Exam in 2022. 93 people took the exam in February 2022 and 182 people took the exam in July 2022. The overall pass rate for the 2022 bar exams was 59.6%, which is down over five percentage points from the 2021 overall pass rate of 64.7%. The increase in bar exam applicants was due to the increased enrollment at Concordia University School of Law before its closure in the spring of 2020. Most of the Concordia students transferred to the University of Idaho College of Law and graduated in May 2022. Therefore, we will likely see a decline in the number of people taking the Idaho Bar Exam in 2023.

Reciprocal and UBE Admission Trends

As we know, Idaho’s population grew during the pandemic. We saw higher numbers of reciprocal applicants in 2020 and 2021, with 94 attorneys applying in 2020, followed by a record high 109 attorneys in 2021. Reciprocal applicant numbers returned to pre-pandemic levels in 2022, when 81 attorneys applied for reciprocal admission. Idaho has reciprocity with 35 jurisdictions. UBE applicant numbers have held steady at 50 per year since 2020.

NextGen Bar Exam

In 2018, the National Conference of Bar Examiners (“NCBE”), the entity that develops the UBE, created the Testing Task Force to determine the knowledge and skills entry-level lawyers should be expected to know and how that knowledge and those skills should be assessed on the bar exam. After several years of research, the Testing Task Force recommended that the NCBE develop what it refers to as the “NextGen Bar Exam.” The NCBE is currently conducting pilot and field testing and developing content scope outlines for the NextGen Bar Exam. The NCBE will finalize this work in early 2026, with the NextGen Bar Exam ready to be deployed for the July 2026 bar exam.

In February 2023, the Board of Commissioners of the Idaho State Bar created a NextGen Bar Exam Task Force to monitor developments with the NextGen Bar Exam and consider whether it should be implemented in Idaho.

Spotlight on Belinda Brown, Idaho State Bar Admissions Analyst

A law student’s or lawyer’s first contact with the Idaho State Bar occurs during the admissions process. And since 2009, that first contact has been with Belinda Brown, the Idaho State Bar Admissions Analyst. Belinda handles the intake on all applications for admission. She communicates with dozens of lawyers daily, answering questions about the admissions process and updating them about the statuses of their applications. She is patient, courteous and professional. I have learned a lot from her and am privileged to work with her.

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By Carey A. Shoufler

Title Page Image Caption: 2023 Idaho Mock Trial Champions, The Ambrose School, Meridian.

The Idaho Law Foundation’s Law Related Education Program hosted its annual High School Mock Trial State Championship from Wednesday to Friday, March 15 to 17. For the first time since 2019, the three-day tournament was held in-person. This year, students explored a criminal case that centered on a charge of theft by possession of stolen property charged against a college student who had started a business refurbishing computers for other students.

For 2023, 216 high school students from 24 teams registered to participate in the mock trial competition. One hundred thirty-eight teachers, judges, attorneys, and other community leaders donated their time to serve as coaches, advisors, judges, and competition staff.

Twelve teams advanced from regional competitions held in 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 (two teams)
• Lewiston High School
• The Logos School (Moscow, two teams)
• Mountain Home High School
• Thunder Ridge High School (Idaho Falls)
• Timberline High School (Boise)
• Victory Charter School (Nampa, two teams)

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

2023 State Champion: The Ambrose School (A Team)

State Runner Up: Logos School (A Team)

Third Place: Mountain Home High School

Fourth Place: Victory Charter School (A Team)

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 2023 competition include:

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 2023, Logos School B Team 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. Artists observed trials and submitted sketches that depict courtroom scenes. The top three entries for 2023 were:

First Place: Taelyn Baiza (Boise High School)

Second Place: Nam Bui (Lewiston High School)

Third Place: Shalyce Graham (Victory Charter School)

The Ambrose School will represent Idaho at the National High School Mock Trial Championship in May in Little Rock, Arkansas and Taelyn Baiza 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 2023 mock trial season. We couldn’t do our important work without your support.

Plans will soon begin for the 2024 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.

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By R. Jonathan Shirts

For the first time since February 2020, the ABA’s Midyear Meeting was held in-person from February 1-6, 2023. We were warmly welcomed by the city of New Orleans; and I do mean warmly – temperatures were in the mid-50’s to mid-60’s while we were there, much warmer than anywhere in our great state during that time. Before this, I had not had the opportunity to visit New Orleans, and it gave me some unique experiences – I’m pretty sure I have never heard an accordion solo in a street band before.

One thing I have always wanted to experience was Mardi Gras in New Orleans; I still haven’t, but I feel like I’ve come close because the city was ramping up for it a month early. I heard someone say that New Orleans looks for any excuse to have a parade or a party, and it lived up to that billing – the entire House of Delegates was given a Second Line parade from the hotel to the Louisiana Supreme Court on Friday night, and the city hosted a pre-Mardi Gras parade Saturday night.

Once the House of Delegates recovered from the celebratory welcome to New Orleans, the real business began. This was the last House of Delegates meeting for the long-time ABA Executive Director, Jack Rives, and his address to the House discussed many of the advancements the ABA has been able to make during his tenure. [i] A new President-Elect, William R. Bay of Missouri, was selected to take up the gavel as President of the ABA in August 2024.[ii] He stated that one of his goals is to make all members of the legal profession feel welcome in the ABA, regardless of political, ideological, or other beliefs.[iii]

There were a number of Resolutions up for debate that were very hot topics of discussion leading up to the actual House of Delegates meeting.[iv] One of the major discussions surrounded a Resolution from the ABA’s Council of the Section of Legal Education and Admissions to the Bar. In November 2022, the Council voted to approve a change for ABA-accredited law schools which would eliminate the requirement for applicants to law schools to have taken the LSAT or another similar admissions test.[v] Both sides of the debate talked about how they felt that either keeping or eliminating the admissions test would enhance diversity within the legal profession. Being a fairly recent law school graduate, I personally struggled with understanding how the elimination of a relatively-objective measure in the admissions process would enhance diversity in the profession. But I also understood the arguments that marginalized groups and people of color have historically scored much lower on average on the LSAT and other admissions tests.[vi]

What we didn’t have available until the very last minute, however, was any objective data describing how elimination of an admissions test would promote or stifle diversity in law school classes. The data we were given the morning of the vote described how elimination of an admissions test did not foster a more diverse group of applicants, but in some situations, actually reduced it.[vii] In the end, the House of Delegates voted to send this Resolution back to the Section of Legal Education and Admissions to the Bar for more study on this issue, something the House of Delegates is allowed to do twice. After that, the Council can take any action it deems necessary without further input from the House.[viii] After a spirited debate, the House of Delegates voted to send this Resolution back to the Council for further study; however, 11 days later, the Council voted to return the Resolution to the House of Delegates for consideration at its next meeting.[ix]

Another lengthy and spirited debate surrounded the House’s consideration of a Resolution which would make it the ABA’s official policy that the Supreme Court of the United States should adopt a binding code of ethics.[x] After a significant amount of rousing debate, the House voted to pass the Resolution.[xi]

Other resolutions considered and passed involved removal of Confederate monuments and pictures from courthouses,[xii] support for anti-Semitic measures,[xiii] and international wildlife crime enforcement protocols.[xiv] There were also Resolutions passed discussing the rights of women to travel for medical procedures including abortions,[xv] the rights of intersex children to have informed consent before certain surgical procedures,[xvi] and 10 principles that would improve gender parity among criminal attorneys.[xvii]

The next ABA Meeting from August 2-8 will be much closer to us as it is being hosted in the beautiful city of Denver, Colorado. I would encourage anyone who is interested in voicing your concerns or comments to the House of Delegates to attend that meeting. Not only would it be a great networking opportunity and a great place to get CLE’s on topics relevant to today’s practice of law, it’s a way to make your voice known. If you have any questions about attending the ABA Annual Meeting, the work of the House of Delegates, or the ABA in general, any of your Idaho Delegates would be happy to speak with you.

Until next time, thank you all for being a fantastic Bar that I am proud to represent.

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[i] See, https://www.abajournal.com/web/article/jack-rives-touts-cost-cutting-progress-in-final-house-address-as-aba-executive-director.

[ii] See, https://www.abajournal.com/web/article/change-is-good-a-says-aba-president-elect-nominee.

[iii] Id.

[iv] A full list of the Resolutions with executive summaries considered during the 2023 Midyear Meeting can be found at https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/summary-of-resolutions/2023-midyear-summary-of-resolutions.pdf (“Resolutions”).

[v] Resolutions, pp. 65-78.

[vi] Id.

[vii] Id.

[viii] See, RULES OF PROCEDURE HOUSE OF DELEGATES, §45.9 Law School Accreditation, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/constitution-and-bylaws/constitution-and-bylaws.pdf.

[ix] See, https://www.abajournal.com/magazine/article/testing-standards-entrance-exams-like-the-lsat-remain-an-accreditation-requirement-after-proposed-change-is-voted-down.

[x] See, Resolution 400, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2023-midyear-supplemental-materials/400-midyear-2023.pdf. 

[xi] See, https://www.abajournal.com/magazine/article/scotus-ethics-code-proposed-a-binding-code-for-justices-is-needed-to-protect-the-courts-credibility-delegates-say.

[xii] See, https://www.abajournal.com/magazine/article/reminder-of-injustice-aba-urges-removal-of-confederate-monuments-from-courthouse-grounds.

[xiii] See, https://www.abajournal.com/web/article/aba-passes-resolution-condemning-antisemitism.

[xiv] See, https://www.abajournal.com/web/article/resolution-508-united-nations-must-adopt-wildlife-crime-protocol-to-stop-illegal-trafficking.

[xv] See, https://www.abajournal.com/web/article/resolution-513-aba-supports-right-to-travel-for-abortion-services-and-other-medical-care.

[xvi] See, https://www.abajournal.com/web/article/house-passes-resolution-involving-consent-for-children-with-intersex-traits.

[xvii] See, https://www.abajournal.com/magazine/article/across-the-divide-aba-endorses-10-principles-to-improve-gender-equality-in-the-criminal-legal-profession.