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AdvocateTheTheOfficial PublicationPublicationOfficialof thethe IdahoIdaho StateState BarBarofVolume 55,55, No.No. 22VolumeFebruary 20122012FebruaryProsecutorial Misconduct 16Better - made Lawyers 29Social Media Perils 31
Protect the best interests of your client.Does your client have a real estate need?When it comes to leasing, re-leasing, or buyingcommercial space, it’s not just about the cost persquare foot. Functionality, location, operationalcosts, floor plate efficiency, physical plant HVAC,triple net fees and current vacancy rates all effectthe equation. How do you help your client make thebest possible deal?Put our market expertise and real estateknowledge to work on your client’s team.We’ll help you keep the client informed andcomfortable in their knowledge of what’savailable in today’s commercial real estate market.William R. Beck SIOR, Principal208.333.7050Whether it’s evaluating space, considering fullyloaded operational costs, or contemplating growthoptions, Tenant Realty Advisors can help ensureyou’re protecting the best interests of your client.Tenant Realty Advisors is the only commercial realestate firm in the greater Boise area that worksexclusively for tenants and buyers, so we have noconflict of interest issues resulting from representingthe other side of the negotiation table. Our fees arecontractually paid by the landlord or seller, so there’sno cost to you or your client. Protect the bestinterests of your client by consulting an experienced,independent, and unbiased commercial real estatebroker. Call Bill Beck today at (208) 333-7050.www.tenrealad.combeck@tenrealad.com
Earning trust and confidencefor over 100 years.Managing and guiding your clients’ complex financial planning means putting yourreputation on the line.When it’s time for you to recommend a corporate trustee, you can be assured that Washington Trust’sWealth Management and Advisory Services team will protect your professional integrity.We are a corporate trustee that understands our role in supporting the legal counsel you provide yourclients. Our a full-range of trust services are complemented by our technical expertise, sensitivity,confidentiality, and a well-earned reputation for personalized and unbiased portfolio management.Learn more about our expert fiduciary services at: watrust.com/LegalFAQBOISE 208.345.3343 COEUR D’ALENE 208.667.7993 SPOKANE 509.353.3898SEATTLE 206.667.8989 BELLEVUE 425.709.5500 PORTLAND 503.778.7077
Donald J. FarleyPhillip S. OberrechtAlthough our firm name has recently changed, we continueour dedication to providing our clients with the highest qualitylegal services. We value the trust and confidence our clients haveplaced in us since 1988 and remain committed to serving theirneeds. We will continue to practice law in the broad range ofpractice areas in which we have specialized for several years.We look forward to continuing the successful representation ofour many current and future clients.Areas of Practice Commercial LitigationHealthcare LawConstruction LawInsurance & Transportation LitigationReal Estate Law Business LawComplex LitigationEmployment & Labor LawProfessional Liability DefenseEstate Planning & ProbateJ. Kevin WestBart W. HarwoodOur AttorneysSarah H. ArnettKara L. HeikkilaRobert A. BerryPhillip S. OberrechtJ. Charles BlantonSally J. ReynoldsJohn J. BurkeRandall L. SchmitzDylan A. EatonSlade D. SokolDonald J. FarleyLewis N. StoddardBart W. HarwoodJ. Kevin WestLeslie M. G. HayesFarley Oberrecht West Harwood and Burke, P.A.Key Financial Center702 West Idaho Street, Suite 700 Boise, ID 83702John J. BurkeTelephone: (208) 395-8500 Facsimile: (208) 395-8585Website: www.farleyoberrecht.com
The AdvocateThe Official Publication of the Idaho State Bar55 (2), February 2012ColumnsFeatured Articles16The Foul Blow:Prosecutorial Misconduct in Idaho914News and NoticesThomas J. McCabe2320The Idaho Prosecuting AttorneysAssociation Board of Directors’Response to Mr. McCabe’s Article22Comment by Kootenai CountyProsecuting Attorney22Post Script to “The Foul Blow”Perfecting Your Appeal – Key InitialConsiderations for Pursuing anAppeal in IdahoPresident’s Message, Reed W. LarsenExecutive Director’s Report, Diane K. Minnich8111235364141434547Continuing Legal Education (CLE) InformationDisciplineNews BriefsIdaho Court of Appeals and Idaho Supreme CourtCases PendingIn MemoriamOf Interest2011 ILF/ISB CLE SpeakersIdaho Law FoundationClassifiedsMatthew Gunn and Brian C. Wonderlich26The Curious Case of Idaho CodeSection 12-117T. Hethe Clark29Building Better Lawyers: Proposals toMeet Our Professional Obligationof Constant ImprovementBrian P. Kane31The Role of Legal Counsel inSocial Media StrategyLisa McGrath38My Inbox: Follow-Up Advice to ReadersTenielle Fordyce-RuffOn the CoverSun Valley SnowSports Snowboard Instructor carves aturn on Baldy. Photo courtesy of the Sun Valley Resort.EditorsSpecial thanks to the February editorial team: Gene A.Petty, Jennifer M. Schindele, Tenielle Fordyce-Ruff, Denise Penton.Letters to the EditorThe Advocate welcomes letters to the editor or article submissions on topics important to the Bar. Send your ideasto Managing Editor Dan Black at dblack@isb.idaho.gov.The Advocate February 20125
“Dad Couldn’t Remember How To Get Home”An estimated 4.5 million Americanshave Alzheimer’s disease. The number ofAmericans with Alzheimer’s disease willcontinue to grow — by 2050 the numberof individuals with Alzheimer’s could rangefrom 11.3 million to 16 million.A person with Alzheimer’s disease will livean average of eight years and as many as 20years or more from the onset of symptoms.The average nursing home cost in Idaho is 84,000 per year.The legal and financial challenges posed by Alzheimer’s disease can only be answered onan individual basis by an attorney whose practice is concentrated on elder law, Medicaidplanning, and estate planning. Whether planning ahead or in a crisis, we can provide helpwhen one of your clients — or a loved one — is faced with long-term care needs.Take The First Step Call us and we’ll be glad to consult with you about your client’s situation, and determinewhether we can help.Call: 208-387- 07292402 W. Jefferson StreetBoise, Idaho 83702Sisson & Sissontel 208.387.0729T heE lderL awF irmfax 208.331.5009For Seniors & Those Who Love Themwww.IdahoElderLaw.com
Healthcare costs are agrowing concern.Does your firm have thebenefit plan you need?ALPS, in partnership with theIdaho State Bar, has a solution.As a member of the Idaho State Bar you areentitled to apply for participation in a self-fundedgroup health plan tailored to meet the specificneeds of lawyers and law firm employees.Members will benefit from: Quality Coverage Competitive Rates Superior Customer Service A Voice in Plan Design and Management Long-Term Stabilization of Health Benefit CostsThe Plan is not insurance and does not participate in the state guaranty association.www.IdahoLawyerBenefit.comFor more information call: 1 (800) FOR-ALPSAdvocateTheOfficial Publication of the Idaho State BarMANAGING EDITORDan BlackEXECUTIVE DIRECTORDiane K. MinnichEDITORIALADVISORY BOARDScott E. Randolph, ChairpersonDean BennettHethe ClarkAnna E. EberlinTenielle Fordyce-RuffDaniel J. GordonBrian P. KaneDenise PentonGene A. PettyJennifer M. SchindeleJudge Kathryn A. SticklenBrent T. WilsonCommissioner LiaisonMolly O’LearyBOARD OF COMMISSIONERSReed W. Larsen, PresidentPaul W. Daugharty, CommissionerMolly O’Leary, CommissionerWilliam H. Wellman, CommissionerRobert T. Wetherell, CommissionerADVOCATE STAFFDan BlackManaging Editordblack@isb.idaho.govKyme GrazianoMember Services AssistantLRS b(208) 334-4500Copyright 2012 The IdahoState Bar. The editorial contentsof this publication are theopinions of the authors anddo not necessarily represent orreflect the policies or opinions ofthe Idaho State Bar. The Advocatehas the authority to edit materialsubmitted for publication. Appearance of an advertisement in TheAdvocate does not constitute a recommendation or endorsementby The Advocate or the Idaho State Bar of the goods or servicesoffered therein. The Idaho State Bar Editorial Advisory Boardreserves the right to reject advertising determined not to be inkeeping with the publication’s standards.The Advocate (ISSN 05154987) is published the following months:January, February, March, April, May, June, August, September,October, November, and December by the Idaho State Bar,525 W. Jefferson Street, Boise, Idaho 83702. Subscriptions:Idaho State Bar members receive The Advocate as part of theirannual dues payment. Nonmember subscriptions are 45 peryear. Periodicals postage paid at Boise, Idaho.POSTMASTER: Send address changes to:The AdvocateP.O. Box 895Boise, Idaho 83701The Advocate February 20127
Upcoming CLEsFebruaryMarchFebruary 10CLE Idaho: Movie and LunchSponsored by the Idaho Law FoundationBlackfoot – Bingham County CourthouseMoscow – University Inn Best Western11:15 a.m. (Local time)2.0 CLE credits (RAC)March 1 - 3Family Law of Community Property States SymposiumSponsored by the Family Law SectionThe Coeur d’Alene Coeur d’Alene6.0 CLE CreditsFebruary 16-1930th Annual Bankruptcy SeminarSponsored by the Commercial Law and Bankruptcy SectionSun Valley Resort Sun Valley13.0 CLE credits of which 1.0 is EthicsFebruary 24Real Property Section Annual SeminarSponsored by Real Property SectionBoise Centre BoiseMarch 9Workers Compensation Section Annual SeminarSponsored by the Workers Compensation SectionSun Valley Resort Sun Valley6.0 CLE Credits of which 1.0 is ethicsMarch 16Day with the Idaho Supreme Court Video Replay8:30 amRed Lion Hotel – Pocatello, ID5.0 CLE credits of which 1.0 is ethics*RAC—These programs are approved for ReciprocalAdmission Credit pursuant to Idaho Bar Commissions Rule204A(e)**Dates and times are subject to change. The ISB websitecontains current information on CLEs. If you don’t haveaccess to the Internet please call (208) 334-4500 for currentinformation.Attend a CLE that keeps you on the cutting edgeLive SeminarsWebcast SeminarsThroughout the year, live seminars on a variety of legal topics are sponsored by the IdahoState Bar Practice Sections and by the Continuing Legal Education program of the Idaho LawFoundation. The seminars range from one hourto multi-day events. Upcoming seminar information and registration forms are posted on theISB website at: isb.idaho.gov. To register for anupcoming CLE contact Dayna Ferrero at (208)334-4500 or dferrero@isb.idaho.gov.Many of our one-to three-hour seminars are alsoavailable to view as a live webcast. Pre-registration is required. These seminars can be viewedfrom your computer and the option to email inyour questions during the program is available.Watch the ISB website and other announcementsfor upcoming webcast seminars. To learn morecontact Beth Conner Harasimowicz at (208)334-4500 or bconner@isb.idaho.gov.Online On-demand SeminarsPre-recorded seminars are also available for rentin DVD, VCR and audio CD formats. To visita listing of the programs available for rent, goto isb.idaho.gov, or contact Beth Conner Harasimowicz at (208) 334-4500 or bconner@isb.idaho.gov.Pre-recorded seminars are available on demandthrough our online CLE program. You can viewthese seminars at your convenience. To checkout the catalog or sign up for a program go tohttp://www.legalspan.com/isb/catalog.asp.8The Advocate February 2012Recorded Program Rentals
P re s id e nt ’ s M essageWhy Not Welcome Discussion About Politics and Religion?Reed W. LarsenPresident, Idaho State BarBoard of CommissionersIn February of 1982, I applied to theJ. Reuben Clark Law School at BrighamYoung University. I had my undergraduate degree from BYU and really thoughtI would like to go to law school there, butthe answer was a rather swift and resounding NO. It was one of the best rejections Ihave ever had. I was ultimately acceptedto the University of Idaho, which openeddoors that benefit me to this day. One ofthe benefits was diversity. If I had stayedat BYU, I would not have been exposedto various views on politics, religion andlife. If I had not sought out conversationswith others on the topics of politics andreligion, I would have still been left in myown little cocoon.For some reason, someone determinedlong ago that it isnot polite to talkreligion or politicsin public. I neverunderstood why.Fortunately, someof my fellow firstyear law studentsand I didn’t getthe memo. Westarted a weeklyReed W. Larsenlunch meeting totalk about currentevents, politics,and any other relevant and interesting topics. It was a great experience. The groupwas small, but diverse. I’m still thankfulGeorgia Yuan and Dee Brookings expanded my understanding of difficult issuessimply by sharing their views and opinions. They expressed ideas that made methink, a rare gift in our current politicalenvironment. Too often people hold theirviews passionately, but do not listen withthat same intensity.So is it polite to talk politics in public?What about religion? Perhaps we havestopped talking about religion and politics in public because we don’t know how.My premise is that we as lawyers shouldbe leading the discussion of both religionand politics in public and we should be theteachers of how to do it. We have train-Even though we as lawyers are trained toappreciate different perspectives, it cantake considerable effort todo so continually.ing on the topic. We know that the FirstAmendment to the U.S. Constitution protects both religion (as well as protectingus from religion), speech, and the right toassemble. Why then are we not comfortable talking about the two most importantthings in our existence, freedom (politics)and our purpose (religion)?The potential problem with discussing religion and politics is that it createsconflict. Conflict can lead to bitterness,hard feelings and it can even divide goodfriends. We avoid conflict at all costs. Except lawyers. We live in conflict. I am sureevery lawyer has had a client ask, “Howcan you fight in the court room and thenbe friendly to the other lawyer after thecase is over?” That is our teaching moment. We can respond that freedoms ofspeech, religion and assembly are moreimportant than the conflict at hand. Theyare certainly more important than hurtfeelings.This leads me back to the currentevents group at the University of Idaho.In the fall of 1982 conservative and liberal politics were really starting down theroad of division. You had to be “all-in”on every topic. You are either with us oragainst us. I have never found life to bethat simple. Thanks to Georgia and Dee,I gained new perspectives on women’srights and women’s issues. As a bar commissioner, these issues have come up andI am grateful to have understood variousperspectives on the issue.Sometime around 1993 I learned oneof my college roommates from BYUsuffered and died from AIDS. He wasa wonderful and kind man, raised on anapple farm in eastern Washington. He hadbeen a great roommate, always happy andfun to be around. Learning of my formerroommate’s illness and death helped mereexamine my own views and biases. Hewas a real person, not just some abstractstatistic. It still breaks my heart to thinkhe died of such a horrible disease that waspoliticized and demonized. Even thoughwe as lawyers are trained to appreciatedifferent perspectives, it can take considerable effort to do so continually. Therewards for doing so are incalculable.How else can we really put ourselves inthe shoes of others? How else do we learncompassion, humility, and respect? Howelse can we be of service to the community and our profession?So speak up. Let your voice be heard;but let your ears be open. Then, perhapsour points of view can be refined by thecombined experience of those we encounter.About the AuthorReed W. Larsen is a founding partner at Cooper & Larsen in Pocatello. Hispractice includes auto accident cases, repetitive trauma injuries in the workplace,Federal Employer Liability Act (FELA)litigation, railroad crossing cases, personal injury insurance defense, agricultural litigation and Indian law.He is a 1985 graduate from the University of Idaho College of Law. He hasserved as a Commissioner for the Sixthand Seventh Judicial Districts since 2009and is currently serving a year term asPresident of the Idaho State Bar Board ofCommissioners. Reed is married to LindaM. Larsen and together they have threechildren.The Advocate February 20129
HuegliMediation & Arbitration6HUYLQJ ,GDKR 2UHJRQ DQG :DVKLQJWRQPersonal injury, commercial disputes,construction law, professional liability.Available Statewide. \HDUV OLWLJDWLRQ H[SHULHQFH 0DUWLQGDOH XEEHOO 9 5DWHG James D. Huegli1770 West State Street, Suite 267Boise, ID 83702Phone: (208) 631-2947Fax: (208) 629-0462Email: jameshuegli@yahoo.comWeb: www.hueglimediation.comIDAHO ASSOCIATION OF CRIMINAL DEFENSE LAWYERSI A C D LSTANDING TALL FOR THE ACCUSEDWorld Class DefendersWorld Class SkiingSun Valley Seminar; March 2 - 3, 2012Featuring a Screeningof the Award Winning DocumentaryIncendiary the Willingham CasewithCo-Directors Joe Bailey, Jr. and Steve MimsSeminar Speakers Include:Andrea GeorgeHon. Karen VehlowS. Richard RubinDebra Alsaker-BurkeMaria AndradeSarah TompkinsGabriel McCarthyJeffrey WeinerHon. Molly HuskeyDennis BenjaminFor More Information:Contact IACDLExecutive Director Debi Presherat dpresher@nbmlaw.comwww.idacdl.org10The Advocate February 2012
DISCIPLINERICHARD D. HIMBERGER(Public Reprimand/WithheldSuspension/Probation)On January 5, 2012, the Idaho Supreme Court issued a Disciplinary Orderissuing a Public Reprimand to Boise attorney, Richard D. Himberger. The Disciplinary Order also included a withheldthree-month suspension and placed Mr.Himberger on disciplinary probation for15 months.The Idaho Supreme Court found thatMr. Himberger violated I.R.P.C. 1.15(a)[A lawyer shall hold property of clients orthird persons separate from the lawyer’sown property], 8.1(b) [Failure to respondto Bar Counsel in connection with a disciplinary matter], and I.B.C.R. 505 [Failureto cooperate with or respond to a requestfrom Bar Counsel].The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho disciplinary proceedingin which Mr. Himberger admitted thathe had violated I.R.P.C. 1.15(a), 8.1 andI.B.C.R. 505. The stipulation also included dismissal of the allegations thatMr. Himberger violated I.R.P.C. 1.15(b),(c) and (d).Mr. Himberger’s misconduct relatedto his failure to keep complete recordsof his trust account funds and to preservethose records for a period of five yearsafter termination of representation. Mr.Himberger explained that some computerrecords relating to the trust account werelost or destroyed by a former employee.Mr. Himberger acknowledged he was notable to conclusively determine or allocatefunds held in his trust account from January 2010 until very recently when he hireda CPA to identify the ownership of fundspresently held in the trust account and torecommend internal accounting controls.As a result of these circumstances, Mr.Himberger acknowledged a lack of records demonstrating that his trust accountfunds were held totally separate from hisown property. However, none of Mr.Himberger’s clients made any complaintsto the Idaho State Bar regarding his handling of their trust account funds and hisclients did not request any accountings oftheir funds held in his trust account.In addition, Mr. Himberger failed torespond in full to Bar Counsel’s disciplinary investigation of these trust account issues.The Disciplinary Order also providesthat the three-month suspension will bewithheld and Mr. Himberger will serve a15-month period of probation, subject toconditions of probation specified in theOrder. Those conditions include, (1) thatMr. Himberger will serve the withheldsuspension if he admits or is found to haveviolated any Idaho Rules of ProfessionalConduct for a whi
Petty, Jennifer M. Schindele, Tenielle Fordyce-Ruff, De-nise Penton. Letters to the Editor The Advocate welcomes letters to the editor or article sub-missions on topics important to the Bar. Send your ideas to Managing Editor Dan Black
