Black History Month: BAMSL’s Exclusion of Sidney R. Redmond

This marks my 13th column as President of the Bar Association of Metropolitan St. Louis (BAMSL). If anyone has read more than one of them, you’ll have likely figured out that I have a certain fascination with history, and that I have availed myself of the privilege of unfettered access to the BAMSL archives, which date back to 1874. You may also have noticed that I frequently use this column to exalt the association. Certainly I cannot write a column for the February Black History Month edition without this month’s tale will do little to glorify BAMSL. In fact I’ll delve into one of the most ignoble chapters of BAMSL’s history: the organization’s participation in racist segregation.

Prior to 1948, BAMSL’s refusal to admit African American attorneys was not codified or recorded on any document I have found in our archives; however, we know that African Americans were not admitted to BAMSL as far back as 1922. This fact is not from our own records, but from the records of the Mound City Bar Association. The Mound City Bar, named for St. Louis at a time when there were still Mississippians’ burial mounds on both sides of the river, was, and is, one of the first bar associations for African Americans in the country. It was formed because black attorneys were not admitted to BAMSL. Therefore, I assume that, like many Jim Crow-era institutions, BAMSL’s segregation policy was strictly implicit.

Until 1948 when the association received an application for admission from Mr. Sidney R. Redmond. At that time, applications for membership in BAMSL were subject to review and required an affirmative vote by at least 80 percent of the members. Nevertheless, most applicants were admitted on oral vote for an entire slate of new members. Mr. Redmond’s resume would have been not only adequate for admission, but exceptional for an applicant. He held both an undergraduate and a law degree from Harvard. He had already tried and successfully appealed a case to the United States Supreme Court. He was counsel for Lloyd Gaines in State of Missouri Ex ReI. Gaines v. Canada, 305 U.S. 337 (1938). The case was one of the first to address racial separation in education. Mr. Gaines had applied to attend law school at the University of Missouri. However, because he was black, Mr. Gaines was denied admission.

The Court held that this practice was not Constitutional, but in keeping with the then prevailing “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896) it stopped short of ordering Mr. Gaines’ admission to the University of Missouri Law School, but did hold that he had a right to an education in the law within the state. This lead to the creation of a separate, but theoretically equal, public law school in Missouri through Lincoln University.

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Government of Laws, Not of Men … or Corporations

As lawyers, it’s not difficult for us to generally subscribe to the political philosophy that society works better when it is governed by “the rule of law.” As American attorneys, we most often trace the roots of this philosophy to Plato or Aristotle, but in truth, ancient philosophers in many cultures enunciate similar concepts, including Chinese and Islamic thinkers.

In comparing the success of our country and culture, we frequently cite the “rule of law” as basis for our economic success over the last two centuries. We often hear from other cultures that the inviolability of property and contract rights in our legal system is what instills the confidence in our system that encourages individuals to take the economic risk that causes our economy to thrive.

However, if “rule of law” is the structural “foundation” of our society, it might be time we grabbed a flashlight and headed into the basement. Every property owner in or around St. Louis knows that this foundation, like those in our homes, requires constant vigilance for cracks and leaks. Unfortunately, the bad news that property owners often learn is that even with constant vigilance, the early discovery of a tiny trickle of water in a well designed and maintained basement can result in significant and expensive repair costs. 

As lawyers, we are explicitly the guardians of our society’s rule of law foundation, so even with the queasy horror of substantial sacrifice on the horizon; I think we must continuously inspect the rule of law to ensure it is watertight.  This seems a particularly appropriate analogy given the alarming mortgage crisis that has predicated our current national recession. 

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(One) Mission Accomplished

The president of the Bar Association travels to a lot of conferences’ and conventions. One of the first conferences a president-elect attends is called the American Bar Association’s “Bar Leadership Institute” in Chicago. The conference, organized in recent years by BAMSL ‘s 2001-2002 president Bill Bay, is where you learn how to be a bar president. The purpose of the conference is obvious to any lawyer that has ever modified an old document for use in a new case – to avoid every lawyer’s nemesis: reinvention of the wheel. Theoretically, you leave this conference with a good concept of what a bar president should do, so you can focus on doing it instead of figuring out what to do.

Part of the curriculum focuses on writing the Bar President’s monthly column, which you are currently reading. The prototype suggests that as the new president I propound my agenda in my first column and then review it in my final column. Regular readers of this column will recognize that I have, to date, followed the prototype. In my first column in the May issue of this magazine, which until that point had been a newspaper, I talked about BAMSL’s role in the creation of the “The Missouri Plan” for judicial selection. I noted that at the time, the plan was under attack by those who believed that a few wealthy people with political connections should be able to select the judges we rely on to adjudicate our clients’ disputes.

This attack was not novel – in an earlier article in this publication I concluded on the history of the passage of the plan in 1937 by noting that the battle was hard-fought, and that the plan was under attack again, by the next session of the Missouri legislature. The history of attacks on the plan continued steadily. The most recent of these attacks was an effort by the “Justice for Sale” crowd to circulate an amendment petition to effectively repeal that plan and make the judiciary answerable to moneyed campaign contributors. BAMSL joined a coalition of other bar associations, including the Missouri Bar and both the Missouri Association of Trial Attorneys and their rival the Missouri Association of Defense Lawyers, amongst many others, to defeat this effort.

In the latest enactment of the battle to obtain the non-partisan court plan – and in all such battles since the original – these groups and many others coalesced and prevailed. The Bar Leadership Institute featured an excellent presentation on the very topic at the Bench and Bar Conference moderated by Ken Vulstake. Ken oversaw an impressive discussion by judges from many courts, which included impassioned speeches by the Hon. David Mason and others. This was followed by Ken’s own compelling presentation.

As a result of these presentations and hundreds like them, and many other types of traditional politicking, the petition failed to acquire enough signatures for certification and inclusion on the ballot.

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The Arms Race of Marketing Legal

In 1972 the United States Supreme Court told us all that total prohibitions on attorney advertising were a violation of the Freedom of Speech clause of the First Amendment to the United States Constitution. My personal memories of how that decision changed the profession are somewhat nebulous because I was two years old. In the nearly 40 years since, advertising has changed completely, not just for lawyers but for everyone. This case law from 1972 still prevails through to today, but probably nothing else about advertising in 1972 is relevant to marketing your practice today.

The jargon we use for starting a new law practice is “hanging out a shingle.” That phrase evokes the image of a 19th century lawyer opening his (and it would have been a “he”) retail law practice on the courthouse square. In the closing years of the twentieth century, when I left the St. Louis County Probate Court to start my own practice, I rented office space just blocks from the courthouse, like the classic courthouse square model.

Unfortunately, my first office was on the fifth floor of a high rise and the landlord had rules that prohibited me from nailing up a handcrafted shingle in the hall outside my office. Moreover, no one would have seen it. So instead, one of the first things I did in planning my departure was the modern analog of “hanging out a shingle” – I created and published a web page. This was such a high priority that I began work on the page in the evenings before I left my prior employment at the St. Louis County Probate Court.

The lessons to be learned from legal marketing in 1999 were, believe it or not, only slightly more relevant than those from legal marketing in 1972. In the last 11 years, things have changed radically. In 1999, however, we did already have Google and other search engines. I’m kind of a geek, and I had worked with computers, so I had a basic understanding of how the search engines worked. I designed my web page to have large amounts of substantive information to gain the attention of the search engine index algorithms. In the years that followed, this practice would come to be called “Search Engine Optimization.” Search engine optimization has continued to be the crucial concept of legal marketing on the Internet for the last decade, but I believe that will change shortly.

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Everybody is a Layperson

In the second millennium, when people first took up advocacy for others as a profession, the professional advocates were priests because literacy and education were at a premium. Priests could read, write, and learn rules in the same way lawyers do today. Moreover, at that time, law was ecclesiastical. Thus, priests were the obvious choice as advocates when disputes that had to be resolved arose. 

The Church dominated history of that time is also the foundation for much of our language today. For example, the word “laity”, which was and still is used to distinguish people that are not ordained ministers from those that are, is the etymological root of the word “layperson”, the term lawyers use to describe non-lawyers. Since doctors and many other professions use the term in a similar manner, we can view everybody as a layperson in one or more areas.  The relative nature of this term and, in particular, its use by attorneys reminds me of a theory my sister, Debi Brenningstall, and I have discussed.  Debi is an intelligent, business–savvy person.  She has been a licensed Certified Public Accountant and has earned a Master’s degree in Business Administration. Yet, from our perspective as lawyers, she is a layperson.

Her theory is that, unlike those priests of yore, lawyers are not some set of elites anointed and privy to secret knowledge. Instead, pretty much all we know about the law is a matter of public record and anyone with enough intelligence and enough time and energy could learn to be a decent lawyer. I think her theory is essentially correct.  Similarly, with the level of intelligence necessary to acquire a J.D. degree and with enough time and energy to learn, I think most attorneys could learn to practice any profession. In fact, lawyers frequently have to learn a great deal about our clients’ professions.  I do not think that a lawyer could do a very good job of drafting a contract to provide computer support services without learning a significant amount about providing computer support services. Likewise, I know many lawyers that prosecute and defend medical malpractice cases that have learned a great deal about medicine without having ever attended medical school. While I have not had to learn much about medicine or computer support, my own practice, in which I prosecute, defend, and assist fiduciaries in probate and trust cases, I have been forced to learn way more than I ever thought I would about accounting and banking.

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When Doctors and Lawyers Work Together Communities Benefit

You may recall a previous column [in the St. Louis Bar Journal] in which I wrote about the medical profession. That article focused on the failure of medical professionals to maintain control of their profession by assuring access to medical care. This was a companion piece to my column in the St. Louis Lawyer, published in the same month, and provided a different perspective on the need for support of pro bono legal services. Unfortunately, it would seem I may have made my point at the expense of further deterioration of medical-legal relations. Therefore, in the spirit of solidarity (and fence-mending), let us now discuss an issue which has strengthened that relationship, the Medical-Legal Partnership (MLP).

An MLP brings together health care and legal professionals who share a common goal: to promote the well-being of their patients and clients. These partnerships leverage the resources and expertise of two knowledgeable service professions in order to alleviate the social and environmental stressors that affect the health of our nation’s neediest individuals and families.

By working together to improve their patients and clients’ health, doctors and lawyers benefit communities in many ways. For example, keeping children healthy reduces school absences and reduces the amount of time employed parents spend taking their child to a doctor.

How do MLPs help? The concept of a Medical-Legal Partnership (MLP) is the brainchild of Barry Zuckerman, M.D., Chief of Pediatrics at Boston Medical Center. He came up with the concept after repeatedly seeing patients who failed to recover from ear infections because their apartments lacked heat, and patients who were unable to control their asthma because their residences contained mold. In working with these patients, Zuckerman came to understand that legal remedies can be used to lessen or even prevent his patients’ need for health care. Putting his idea into action, Zuckerman founded the Medical-Legal Partnership for Children at Boston Medical Center in 1993, and subsequently created the National Center for Medical-Legal Partnership. Over the past 17 years, MLPs have moved beyond Boston. They now exist in 37 of the 50 states and account for more than 80 programs at just over 180 sites across the country. All of the MLPs bring lawyers into the health care setting to help patients and their families navigate through the maze of regulations involving such health-related concerns as food-stamp eligibility, utility shutoffs, mold removal, and landlord-tenant issues.

An MLP is a health and legal services delivery model which recognizes that the legal system already holds solutions for many problems associated with social determinants of health. By integrating legal assistance into the medical setting, an MLP helps underserved communities.

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Lawyers Impacting Politics through Conflict Resolution

When I visit a new doctor for the first time, and complete a new-patient intake form, in the blank for “occupation” I often write “conflict-resolution specialist.” That’s because I find that health care professionals react differently when they realize they’re treating a lawyer.

The use of the term “conflict-resolution specialist” is not just careful lawyer-talk designed to convey a totally true statement without providing the information sought, it also happens to be an apt description of our profession. Whether we are seeking to solve problems through litigation, prevent them through transactional work, or just guide a client through an uncontested court process like Probate or Bankruptcy, we are all conflict-resolution specialists.

The better lawyers amongst us have learned that the most aggressive approach to a solution is only occasionally the best approach. A transactional lawyer can easily draft a highly biased document that creates a very lopsided power balance in favor of her client at the expense of the other party. But, this hyper-aggressive approach renders no benefit if it causes the other party to walk away from the transaction or, worse still, to regret signing the contract and thereby prevent the business relationship from thriving.

Similarly, any litigator that needs a document from an opposing counsel knows how to draft discovery requests and eventually obtain an order to compel. When the two lawyers have an adversarial relationship, that process typically takes at least ninety days and probably requires at least five hours of attorney time. The client is almost always better served by a lawyer that maintains a professional, collegial relationship with opposing counsel so he can place a six minute telephone call to opposing counsel and obtain the same document in a day or two. Certainly there are circumstances when we have to do things the hard way, but I would suggest that the ability and effort expended to avoid the hard way, through conflict resolution, often provides the client the best possible service.

The reason most successful law practices use this approach is because there are at least two sides to every story in real life. In fiction, on the other hand, we regularly encounter “bad guys” that act in evil ways because they are inherently evil. Those people are rare or perhaps even nonexistent in the real world. Most of us do what we think is “right” – or at least justifiable – even if our decision leaves others at a disadvantage. While all experienced lawyers know this, many non-lawyers do not think this way. The natural human reaction seems to be to vilify our perceived adversaries.

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The Justice Gap

One of the prominent pieces of my presidential agenda is to strengthen the Bar Association of Metropolitan St. Louis’ ties to Legal Services of Eastern Missouri. Support of Legal Services does not strike me as a particularly contentious position for the president of BAMSL to take. Since its inception in 1874, BAMSL’s charter has included a plank explicitly calling for the organization and its membership to provide legal services to people who cannot afford them. True to this plank, BAMSL modified its bylaw in 1911 to create a standing committee for the provision of such legal services and, more significantly, to grant the authority to hire an attorney to provide those services. We mark the creation of this committee and the hiring of that lawyer as the foundation of the institution which eventually became Legal Services of Eastern Missouri. Of course, the provision of legal services to the poor goes beyond this mere institutional involvement. As lawyers, we collectively recognize an ethical obligation and individually swear an oath to provide such services.

I am always surprised to talk to BAMSL members and other lawyers who are either unsupportive of or openly hostile to the concept of legal aid and/or to Legal Services of Eastern Missouri. Frequently, these comments belie a misunderstanding of the program or stem from some aspect of the program that was eliminated a longtime ago. So, this month I am taking the opportunity to dispel some common misconceptions about Legal Services.

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What Can Lawyers Learn About Their Profession from the Health Care Debate

This issue of the St. Louis Bar Journal focuses on personal injury law, a frequent flash point of contention between the medical and legal professions. Doctors blame professional dissatisfaction on lawyers and the public blames lawyers’ zealous advocacy for clients as a factor in increasing health care costs. The full discussion of these issues is both too controversial and too lengthy for this forum. However, there are important lessons lawyers can learn about their profession from doctors and the political debate over the provision of health care to low and moderate income individuals.

I am not simply referring to the recent federal health care reform debate. Rather, I am referring to the larger debate that has occurred over the last century. The principal question this raises in my mind is: Why, after more than 100 years of politically debating medical services, are we not facing similar questions about provision of legal services to low and moderate income people?

The answer is simple and straightforward: We already answered many of these questions. Unlike the medical profession, the legal profession has lead the debate about how to provide professional services to people who cannot afford them for centuries.

I point out frequently and with much pride that the Bar Association of Metropolitan St. Louis’s original 1874 charter declared the desire and need of our profession to make provisions for legal services to poor people. BAMSL began implementing this declaration in 1911, when it created a program to provide legal assistance to the poor of St. Louis. Eventually, BAMSL spun off this program into the independent entity now known as Legal Services of Eastern Missouri (LSEM). Almost 60 years after our association created this program for the provision of legal services to low and moderate income people, President Richard Nixon signed the act authorizing the creation and financing of the Legal Services Corporation.

While I’m proud of our local and national legal services programs, it is not the extent of our profession’s efforts to address the provision of legal services to the poor. Included in our professional oath, we each swear, or affirm, our individual obligation to address this issue. By comparison, the modern variations of the Hippocratic Oath do not address the issue of provision of free or low-cost medical care. The American Medical Association code of ethics does recognize the need for the medical profession to address this issue. However, I suggest a substantial difference exists between recognition of this concept as a broad inspirational goal for an entire profession and inclusion of the concept in the individual oath each practitioner takes. The latter assures the integrity of the profession as a whole through individual responsibility to address the issue.

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Diversity and Elana Kagan

At Danna McKitrick, when discussions turn to topics of firm administration, a member of the firm’s executive committee, Ruth Binger, often points out that a strong overall firm requires diversity amongst its lawyers. “Diversity” has come to be a buzzword about inclusion based on race, religion, gender, national origin, age and other protected or pseudo-protected classes. When Ruth talks about diversity she doesn’t just mean adhering to the law (which coincidentally is one of her practice areas). She means having diversity of many other sorts, such as a diversity of backgrounds, approaches and practice areas. This broader definition of diversity is the lens through which I propose to examine the newest nominee to the United States Supreme Court, Elena Kagan.

Over the course of the last 94 years the Court’s composition has slowly, but methodically gained diversity in the sense of race, religion, gender, and national origin. As a result, Elena Kagan won’t be the first, or even the only, person with any of her immutable characteristics to sit on the highest court. She will, however, add to the Court’s diversity in the broader sense.

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