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.

In addition to his exceptional education and United States Supreme Court advocacy, Mr. Redmond had also been the first black alderman elected in the City of St. Louis in 1944. In all, it was a pretty exceptional resume for an applicant to BAMSL in 1948 (indeed, it strikes me as a more impressive resume than the current President of BAMSL).

Mr. Redmond’s application was not rejected ab initio. Instead, like most candidates, his application was endorsed by the Membership committee and referred for admission at the next general membership meeting held on January 24, 1949. BAMSL did not have a permanent home yet, so that meeting was held at the St. Louis Medical Society at 3839 Lindell Boulevard. The specific nature of the normally routine agenda item for admission of new members was widely anticipated by the membership, and the meeting was well attended. Association Secretary Lon Hocker, Jr. estimated the attendance at more than 350 members. BAMSL President John F. Cunningham, Jr. chaired the meeting. Then, as now, admission of new members was a routine agenda item placed toward the top of the agenda right after approval of minutes, committee reports, and the treasurer’s report.

Both the segregationists and the integrationists dug in for a pitched battle, and the weapon of choice was to be Robert’s Rules of Order. The first volley was the standard motion for approval of the members by simple voice vote. It failed. Then, being the experienced, well-trained lawyers that have always made up the membership of this organization, the 1949 membership started in with procedural motions: points of order, motions for secret ballots, and responses to all. The procedural posture became so convoluted that the minutes reflect that President Cunningham had to consult the text of Robert’s Rules of Order. Efforts by the integrationists started to take on an air of desperation, as motions to table the motion for admissions, conduct a vote by mail ballot, and even adjourn the meeting were presented and rejected.

As it became clear that this was to be the night when the matter was settled, members began speaking for the admission of Mr. Redmond. The speakers for integration included William Stix, Lon Hocker, Jr., (who, it should be noted, was also the secretary and author of the minutes from which most of this information is derived), Richmond C. Coburn, and J. M. Lashly.

Interestingly, the minutes do not mention any speeches opposing the admission of Mr. Redmond; however, this is probably because of the need to establish a super majority of 80% to accomplish integration. Eventually, ballots were prepared and distributed to allow the members present to cast their ballots individually for the 35 applicants. That list included both men and at least one woman, but BAMSL’s story of gender integration is an older, but similar, separate tale initially told in the minutes of the May 8, 1922 general meeting with the denial of admission to Mary G. Jones. That meeting concluded with a vote to send a letter to Ms. Jones, which essentially said “your qualifications are acceptable for admission but your gender is not.”

As the ballots were collected and counted, Judge Louis Comerford was called upon to deliver the report of the Criminal Laws Committee. Secretary Hocker notes that Judge Comerford delivered his report “with admirable courage and perseverance considering the restlessness of the meeting and the consuming interest in the result of the election.” When the 303 votes were counted (and recounted), Mr. Redmond had received 75 “no” votes. In other words, he had only received 75 percent of the votes present for admission where the rules required 80% of the votes present. Mr. Redmond was denied admission into this association for the want of 13 votes. Subsequent history teaches us that despite his denial of admission to this association, the seeds of change had already been planted and legal racial segregation was moribund. Indeed those seeds had been planted by Mr. Redmond himself, as his victory in Gaines would become precedent invoked by Attorney Thurgood Marshall and cited by the still all-white Supreme Court to overturn Plessy in Brown v. Board Of Education, 347 U.S. 483 (1954) and launch the current era of equal protection under the law, superseding the spurious “separate but equal” idea.

I have a personal tradition which I have adopted to celebrate the legal holiday to recognize the birthday of Rev. Dr. Martin Luther King, Jr. in the middle of January. Each year I reread Dr. King’s I Have a Dream speech originally delivered from the Lincoln Memorial at the Civil Rights March on Washington on August 28, 1963. This year on the King holiday, as I re-read those words while researching this article, I decided that we are still working toward a time when “justice rolls down like waters and righteousness like a mighty stream” for people of color in this country and this profession. But I do think at this point a larger percentage of BAMSL members have realized Dr. King’s assertion that the freedom of all is inextricably tied to the freedom of minorities.

BAMSL is an important organization with a mostly proud history, but to further paraphrase Dr. King’s speech, the subsequent admission of Judge Scovel Richardson as the first black member of this association in 1953 is merely one “rough place made plain.” This association’s racist history and the code of ethics we all swore to uphold (see Mo. Sup. Ct. Rule 4-8.4(g).) require that we all continue to be vigilant of the rights of all lawyers. But in my opinion, all the subsequent admissions of black attorneys to BAMSL and all of this organization’s many diversity initiatives do not amount to an apology.

The current BAMSL media relations policy indicates that as President of this association I can speak with the voice of the organization. So in my official capacity as President, and on behalf of the entire Association, I apologize to the heirs and survivors of Mr. Sidney Redmond for the rejection of his application based on the color of his skin. Moreover, I apologize on behalf of the Association to the many other attorneys of color who were denied admission to this organization explicitly or implicitly before or after Mr. Redmond.

I also apologize to the current minority attorneys that were never directly subject to this discrimination but who have been subject to the pernicious continuing impacts upon our organization as reflected in the exiguous numbers of minority members and leaders in BAMSL to this day. These apologies are not meant to be interpreted as a full and final resolution of this matter, just one of many more steps to be taken to move us all closer to Dr. King’s dream.

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. 

Initially, the home loans and foreclosure did not seem to implicate the rule of law: we all heard stories about improper, impatient, and immoral activity by big banks and lenders that snowballed into disaster. The banking industry had thrown its political weight around to generate laws that allowed a lot of people to get into homes they could not realistically afford. Initial blame was focused on lending behemoths, who with the help of their Wall Street brethren, had effectively destroyed our economy with a legal but complex version of the classic scam, Three Card Monte. This scam was accomplished by using classic huckster techniques of misdirection and fast talk.  They repeatedly sliced and recombined bad loans until they convinced everyone that worthless paper was worth buying. This was offensive, unethical, and irresponsible, but for the most part, legal. 

Now, in the wake of the toxic-asset crisis, we have come to realize it predicated the current foreclosure crisis.  But there is a big difference between creation and manipulation of a hazy set of laws, and the outright decision to put an American citizen out of his home based on less than absolute certainty that she has benefited from full due process. 

This year, as the summer turned into fall, our general population began to learn more and more about the internal workings of foreclosures by large institutional lenders or those that bought the debt from them. We heard anecdotal revelations that foreclosures and evictions had proceeded against families that had paid their mortgage, tried to pay their mortgage, and in at least one case against a family that were free and clear fee simple owners, when their legal description accidentally ended up on someone else’s loan documents. 

We began to understand that these problems resulted, in part, from something the media dubbed “robosigners.” Robosigners are not actually mechanical automatons, but low-wage employees who presumably took these jobs in order to pay their own mortgages. Large banks and institutions hired such people to execute legal documents, including affidavits, required for the foreclosure process.  Most robosigners were not only improperly trained to understand the documents they were executing but were assigned so many documents on a daily basis that the clear expectation of their employers’ was that such documents be executed without any inquiry to the facts of any individual case. 

To me the phrase “robosigner” is merely a polite euphemism that we adopted for these employees, which might just as accurately be “perjurers.”  My suggestion of this more accurate term is not meant to cast blame strictly on the many employees in many areas of the country for many different employers who ascribed their names on false affidavits. Instead, I selected this term because it allows me to make my next logical step from the perjurers to those who suborned perjury from them.

In this case, those who suborned perjury wield substantially more power than the perjurers. These institutions have the assets necessary to hire public relations consultants and lawyers. They also have a history of making political contributions that give them access to governmental decision makers. So upon discovery of this crisis they were able to proffer and “spin” their answers to give them a solid air of credibility.

Indeed, these banks and related institutions were able to exploit the vast schism of disagreement between right and left that polarizes our current political landscape. We have grown accustomed to any and all controversies being cast in the light of fundamental, diametric divergent views.  When we learned that in some cases the intuitions had acted contrary to the rule of law on a broad scale, to me, as an attorney, this matter took on substantially more importance than a mere political football in an endless, dispiriting contest.

When I heard that hucksters had warned against genuine correction if the problem, using excuses about the potential for substantial negative economic consequence, I was unconvinced. Substantial negative economic consequence does not, in my opinion, provide a valid reason for taking action divergent from the rule of law, like executing a false affidavit.

These talking points are then filtered through to us by the media’s “master logicians” — the same talking heads that present every unseasonably cold day or surprise snowstorm as irrefutable evidence to undermine the global warming phenomenon. Nevertheless, in reporting on this crisis they somehow discovered that there was something wrong with “anecdotal evidence.” This led many of these unqualified squawk-boxes to report and endorse the lenders’ position that the overwhelming majority of foreclosures were against people who had not paid their mortgages. I assume that this position was an attempt to convince the public that if lenders’ had bothered with such niceties as “due process” they would have almost always reached the same conclusion, foreclosure. Unfortunately, there is more wrong here than the mere hypocrisy of shouting “anecdotal evidence!” at your opponents while using inconclusive evidence in other contexts to further your own aims. This approach to the foreclosure issue overlooks the fundamental questions at stake.

In making policy decisions we recognize that our efforts to benefit the most people invariably have a negative impact on a few people. That’s just the way life works. However, as lawyers, we also recognize that there are some actions that despite some benefit to the majority, so disadvantage the minority that they cannot be permitted.  Often we find such rules in the philosophical underpinnings of our normal laws that are inscribed in our Constitution. For this reason, even though there is merely anecdotal evidence of a very small number of people being evicted from their property without due process of law, that is an adequate basis for us to act. 

In elementary school civics we learned that our criminal justice system was based on the maxim that it is better for ten innocent people to be set free than for a single person to be wrongly punished.  Later in law school, we learned how criminal procedure was modeled around this concept, including most importantly the burden of proof we describe as “beyond a reasonable doubt.” I am not suggesting that lenders be subject to a higher burden of proof in order to proceed with foreclosures. Instead I am suggesting that constitutional questions of due process in this civil setting are just as crucial to our system as criminal cases.  And it is not a tremendous leap for anyone who completed a Constitutional Law Class to recognize that the drafters of our Constitution also saw property rights as pretty important.

As a result, I feel that more than mere outcome-based analysis is required for the foreclosure crisis. In the last two years I have grudgingly acknowledged that there are some constitutions in our country that from a macro-economic prospective are “too big to be allowed to fail.”  But we cannot accept that there are any entities that are too big — or too important — to follow the rule of law.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

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.

The small group of people behind the petition attempted to cast their failure as anti-democratic, because it meant that the matter would not be subject to a plenary vote by the populace. But this spin incorporates a very narrow definition of democracy that amounts to the utopian concept of true democracy, in which the entire electorate literally governs. Such a system is utterly impractical for any organization as large as our country, our state, our county or even our individual municipalities.

Instead, in normal usage, when we talk about something being “democratic” we really mean something closer to “reflecting the view of the people.” And in that context, this was a very “democratic” victory. The laws that set the standards for what questions are actually presented to the electorate are not designed to enhance pure democracy but instead enhance the broad will of the people, so that small groups of wealthy individual cannot use the initiative petition process to manipulate the will of the people. In that sense (regardless of how you spin the use of words associated with abstract concepts discussed by political scientists), this was a democratic victory because of the inability of the proponents of the petition to garner the requisite amount of signatures from the electorate despite a substantial budget.

The interesting coincidence is that this sort of technical spin on the use of the word “anti-democratic” to mean the opposite of what most people understand it to mean, is not just true of the failure to gain adequate signatures, but is also true of the underlying issue of judicial selection. It is true that the non-partisan court plan moves us further from utopian true democracy than the judicial elections it replaced. Notwithstanding that technicality, the nonpartisan court plan enhances the equality, liberty, and freedom we all enjoy.

In theory, I knew this from my research on the history of the adoption of the plan, but to the extent that my birth occurred substantially after 1937, I had little direct understanding of this. Then came the bitter 2004 Illinois Supreme Court election between Judge Gordon Maag and his opponent, Lloyd Krameier. Together the two candidates raised more than $9.3 million dollars. This amount is nearly double any previous election and to the extent that most of the expenditures were for bitter negative advertising that aired in St. Louis, I think the BAMSL membership has a substantial memory of what a more partisan judicial selection process looks like.

I was further educated on this topic at yet another conference I attended at the Coalition of Metropolitan Bar Associations, where the leaders of several midsize cities meet and confer in a largely roundtable format. I listened intently for an hour to an explanation presented with pride by other bar associations on how they had carefully crafted a complex plan of a bar political action committee (PAC) to allow attorneys to contribute to all candidates for judicial elections with a sort of veil of anonymity, to avoid the appearance of impropriety when the donor lawyers appeared in front of the judges. The plan was Kafkaesque in its complexity, and, to give credit where it’s due, took substantial effort by the local bar leaders to craft and enact. But in the end, it amounted to nothing more than a variation of public financing of partisan elections. The PAC gave equally to all candidates that qualified for the ballot, which still meant that the local lawyers had to contribute substantial amounts of money to judicial elections. The bulk of that money was still spent on political advertising that bore little or no relationship to a candidate’s actual qualifications to serve as a judge.

Many of the other attendees at the conference from other local bar associations took copious notes and asked probing question that clearly indicated to me that they were impressed with the plan and looking to modify it and adopt it for their state. Since it was a roundtable discussion, I did eventually raise my hand and say “You know there might be a better way…” and talked briefly about the non-partisan court plan. The general response of the other leaders was to thank me for my input, but dismiss my suggestion as impractical to the point of being utopian.

This highlighted to me, even more so than the Illinois political attack ads leaking over the border, what had been at stake in the ongoing battle to protect our Missouri Plan. This plan was not just a clever idea that seemed to work pretty well 70 years ago. Instead, this plan is, as it was in 1937, the envy of all well-informed practicing lawyers in the country, who don’t enjoy the benefit of a version of it.

Other lawyers may feel that the Missouri Plan is a utopian dream, but it is not. There is nothing made by people that can’t be improved. Critics of open government had valid concerns about the openness of the process by which the Commissions select the panels of three candidates for presentation to the Governor. I was pleased when Chief Justice Ray Price (who coincidentally is enjoying his breakfast at Companion Bakery just across the room from where I sit and write this column) announced a series of changes to the selection process at the Missouri Bar Annual Meeting. The changes retain our basic system but shed substantially more light on the selection process.

There is no question that these changes are substantial and will radically alter the incentives and considerations of potential judicial candidates. The plan seems sound and poised to effectuate its goals, though it might need some additional fine tuning. But to the extent that it attempts to enhance a judicial selection system that has proven to be the envy of all, rather than abandoning it in favor of other systems that generate substantial frustration for attorneys, I applaud it. The currently open seat in St. Louis County vacated by Judge Jack Kintz will prove to be an excellent trial run for the new system. More recently, the announcement by Judge Michael Wolf that he will leave the Missouri Supreme Court next year will provide an opportunity to try the newly-improved system on a statewide scale.

I am pleased that I can claim victory on one of the most important items of my presidential agenda – and frankly, without very much effort by me. But I would caution the reader that my ability to claim victory on this issue is only a factor of the BAMSL president’s term being a single year. I get the credit and blame for the organization this year only, and we have retained, if not improved, the nonpartisan court plan for this year. But the Missouri justice system does not have the luxury of a single year snapshot to evaluate its efficacy.

So, just as my predecessor, Samuel Liberman, the President of BAMSL in 1937, made preservation of the non-partisan court plan part of his agenda, you can bet that my successor as BAMSL president in another 73 years, and almost every president in between, will almost certainly need to continue the effort. That’s why the other members of our coalition and all the rest of us need to remember that even as we celebrate this year’s victory we must continue to gird ourselves for the next battle – by doing things like writing this article.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

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.

In 1999, I began to get cold calls from people who had seen my web page. That was good news – I would indeed market my services on the Internet. Unfortunately, many of these were from businesses attempting to “upgrade” my site by formatting it as a sort of prefabricated “tombstone” style web page. I thanked them politely and moved on. Within a few years, these sorts of callers began to try to induce me to purchase a listing on their site, because they claimed to “need lawyers like me to take all the referrals they had for my zip code.” When I told them my office was in one of a few downtown St. Louis zip codes, they replied by saying they earnestly believed that by purchasing the rights on their list to both the 63101 and 63102 zip codes, I would be substantively enhancing my practice – notwithstanding the fact that at the time, the residential population of downtown was truly minuscule. These services were not much more than basic lists. At the time, they knew less about Search Engine Optimization than me, and frankly, I was often getting more hits than they were. Moreover, they had little knowledge of legal marketing, and even less about the greater St. Louis market. So, again, I politely said no thank you.

Knowledge of search engine optimization soon spread to the cold-callers, sellers, and spammers who eagerly offered to help me optimize my web page to get higher on the search-results lists. They rarely did an actual search before calling, so they usually did not know that I was already listed highly on web search results – a product of work I had done years ago.

Now, I am once again getting solicitations to be listed on various sites. Recently I attended an American Bar Association (ABA) Annual Meeting in San Francisco. San Francisco is a pricey town and I needed gifts for my eight and five-year-old sons. I knew that I could get a wide variety of over-priced flashlights, pens, notepads, and carrying cases embossed with “San Francisco” or an image of the Golden Gate Bridge by visiting the trinket stores in Chinatown. But instead, I chose to get them similar trinkets embossed with the names of various exhibitors at the “ABA Expo.”

As you can imagine, the ABA Expo is a large convention hall given over to vendors seeking to sell their law-related and sometimes not so-law-related services to conventioneers. As I entered, I ran into a Missouri judge who bemoaned the fact that convention logistics were intentionally planned so you had to run the gauntlet of exhibitors to get to the registration desk for the conference. But I was there for the sponsors’ trinkets so, to my way of thinking, I was obligated to politely listen to their sales pitches. I left with a bag full of toys for my boys (I know – it was a cheap move, but the kids just ADORED the swag), but I was also struck by the large number of people selling the same space on their Internet-based lists of lawyers that I had encountered ten years before.

The big difference between these lists and the ones that had cold-called me six or seven years before, though, was that the current crop of web-sales people had not merely constructed web pages that I could have done myself and then hired telemarketers to sell them to attorneys throughout the country. These people had spent thousands of dollars to rent a booth from the ABA, fly their personnel across the country, set up a swanky display booth, and offer free trinkets (which would wind up in the hands of my young children). The marketers of legal marketing had discovered that they, too, needed fancier marketing techniques.

There is another big difference between these web pages and the lists of the ancient past, from the time when lawyers had to carry both a mobile telephone and a separate personal digital assistant. (Remember then?) These modern marketers were not twenty-somethings making cold calls from their moms’ basements about the great new websites they had just created. Instead, access to these new web lists were being sold by names I recognized, such as West, Lexis, and other big national companies. These companies have not read a book on search engine optimization to get the alleged inside dope on how the author believed they might attempt to manipulate the Google-bots and crawlers into listing their page. No, these people had paid thousands of additional dollars to advertise with search engines.

Unlike the search engine optimization technical trickery believed to achieve high rankings in the past, these corporations have contracts with the search engine companies specifying their precise level of visibility. It’s a whole new ball game, and it has been, of course, for sometime now I have come to feel the same sort of loss of control of the marketing of legal services that a 19th century lawyer, whose only advertising was a hand painted shingle, might have felt if he suddenly was transported to the age of the Yellow Pages. In today’s world of Internet marketing, there are well-financed listing services that have spent substantial capital on web-page development to produce better web pages which will get more hits then I anything I could create on my own. And they have won in another way, too: people are increasingly approaching the Internet through “filter pages.” Now, potential clients recognize that Google results can be manipulated or bought, so instead of using Google to search for a lawyer, they use Google to search for another web site that will, in turn, help them search for a lawyer.

As these noteworthy changes in Internet marketing happened, my practice has changed as well. I’m now at law firm with 30 lawyers. Unlike my first several days in private practice, I actually have clients to work for (On the rare occasion that BAMSL activities allow time for legal practice. Ahem.), and I no longer maintain my own web page – nor feel that intense pressure to make sure it gets noticed. It’s a different story for today’s young lawyer in independent practice. The capitol required to gain the necessary training and ad placement makes my own early approach – looking back 11 years to that veritable Pleistocene Era of primitive web development – untenable for a new lawyer today. In San Francisco I didn’t bite on any of these many sales pitches, but it is seems increasingly inevitable that the legal profession will become reliant on non-lawyer contractors to market our practice.

Which brings me back to the image of that 19th century lawyer hanging his hand-painted shingle over his door on the courthouse square. You may have heard that several years later another lawyer came and opened his office just down the way on the same square. This second lawyer had a brother-in-law who was a painter, and he got him to make a professional sign painted not on a shingle, but on a fancier piece of finished wood. After that, no lawyer in that town literally ever hung out a shingle again.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

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.

Even beyond representation, lawyers in private practice eventually discover that besides knowing how to advise clients on the law, they also have to know quite a bit about sales and customer service in order to get and keep clients.  We also have to have some grasp of the fundamentals of business management, personnel management, accounting, taxation, computers, and a large number of other fields of expertise. None of us, of course, have the time or energy to become [knowledgable] in every field. Fortunately, our ability to hire or otherwise acquire the services of trained experts permits us to limit our knowledge to only the most basic issue spotting in these fields. Even within our own profession, none of us is [completely knowledgable] in every practice area. Instead of memorizing all of the Law, we rely on our ability to “issue spot” (which doctors call “diagnosing”) followed, in many cases, by research to verify, if not discover, the subsequent course of legal action.

Until recently lawyers were like the priests of yore. We had a monopoly on access to legal knowledge. People without a legal education had no realistic hope of finding their way to the correct statute, case, or legal form. Not only did they lack substantial knowledge of the methods of .legal research, non-lawyers also had were very few places to access statutes, cases, digests, legal forms, and practitioners’ guides. Those days are gone. The internet has provided most people in our country with free access to all of those legal writings in formats that are accessible to many people lacking in substantial legal knowledge.

Don’t despair. The practice of law requires more than knowing how to find cases, statutes, and forms. In truth, it requires much more. For starters, it requires finding the CORRECT case, statute or form. We have all encountered pro se laypeople that, despite having access to the law, made very basic mistakes while pursuing legal action. For example, I met one person who attempted to prove that his landlord was acting unconstitutionally in evicting him from a privately owned residence. Another person I know found a form for a deed and attempted to use it as a will.  Based on our level of [experience and knowledge], it is easy for us to see that a layperson has gotten in way over their head without even knowing it.  The retelling of such “war stories” is an element of the camaraderie that is important every time members of the Bar Association of Metropolitan St. Louis gather socially and every time I write this monthly column.

The retelling of these stories is mostly for entertainment or the bravado of the story teller. The intended audience does not usually take them as cautionary tales. Perhaps, they should.  The road to becoming and remaining a lawyer is neither short nor easy. As a result, lawyers, as a general rule, have relatively high intelligences and substantial self-confidence.  So, it goes against our nature to think of these stories as cautionary tales in over-confidence.  But, that is precisely what they are.

Within the practice of law, most of us are pretty good at identifying what we know and what we do not know. Those of us that [focus on] an area or areas of the law recognize immediately when questions arise that are outside our practice area. We join bar associations or law firms so that we know other lawyers who can provide us assistance or to whom we can refer clients. The ability to be realistic about one’s knowledge is not unique to [attorneys who focus on a specific area or areas of law] of course. General practitioners also know what areas of law to avoid and when a case has become too complex to handle alone, even in areas in which they are well versed.

I think the concept to which I am alluding can be described as “humility.” And I hope not to sound preachy because I am as guilty as anyone of failures of humility. I might even be seen as worse than most, as I have the temerity to imagine that something about my legal education and experience qualifies me to a run a professional association with several thousand members and a budget in the millions of dollars.  Those priests of yore and their ancient and modern counterparts in most other religions teach that humility is a virtue. Regardless of whether you are a follower of one of those religions or a different religion or no religion at all, you have undoubtedly gathered pretty good, if anecdotal, evidence that knowing your limitations is at least as important as knowing your strengths.  Every land owner, car owner, or computer owner has attempted a repair themselves to save money only to end up paying more to have a true expert fix not only the initial problem, but also the botched repair job.

This ability to recognize our own weakness and the need to rely on other individuals and even groups is the basic compulsion behind packs and herds. In humans specifically, we recognize this as the basis for the formation of society as a whole and subgroups thereof We have learned that we are more effective if we cooperate with one another as families, countries, unions, and (you had to see this coming) bar associations. BAMSL only works if our members take advantage of the association in this way.  I think it is great that we offer the opportunity for a, handful of members to teach continuing legal education classes.  However, the substantial purpose of those classes is not to benefit the teachers, but the students. Even before continuing education was mandatory for all of us, this association was providing these benefits, along with the opportunity to learn from each other in more casual, collegial settings. Further, we not only teach each other about substantive areas of the law, but also practical lessons, such as professionalism; law practice management; managing work life balance; how to practice law in a firm, in a partnership, or in a solo setting; how to practice in a specific area of law, and how to practice law as a member of a particular race, gender, or virtually any other group. And what we cannot teach to each other or what we do not wish to learn we also provide the even more important benefit of access to a network of people that know what we admit that we separately do not.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

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.

Health care reform has been a primary topic of political discussion for the last year. But over the last few decades, we have adopted laws that provide access to health care, adequate nutrition, safe housing, and other basic needs to millions of low income Americans. As recent and historic efforts reflect, legislatures, health care providers, and advocates increasingly recognize that social factors have a significant influence on health and well-being and that medicine alone cannot solve the health problems of those who struggle daily with hunger, safety, and other material hardships.

Medical schools teach doctors to heal, not for the most part to address social issues. As a result, doctors may not be equipped with the skill set useful for solving health problems that poor housing conditions, food and energy insecurity, and educational and employment factors cause or exacerbate. MLPs enable doctors to refer their patients with those and other social stressors to a legal advocate, who can provide the “preventative medicine” needed to avoid potential health problems. For example, a child with asthma living in a moldy apartment will never breathe symptom-free, no matter how much medicine is administered. But, with the assistance of a lawyer, the child’s parents can compel either the government or their landlord to remove the mold.

A variety of government programs are designed to address situations that can lead to health problems. However, many low-income individuals and families across the country continue to lack practical knowledge and, thus, access to the benefits these programs afford.

Traditional medicine and law have treated vulnerable populations in isolation, despite the strong links between certain social situations and health. Studies have shown that adverse social conditions, such as substandard housing and insufficient heat, make people vulnerable to poor health. At the same time, research also reveals that poor health makes people vulnerable to adverse social conditions. This “cycle of vulnerability” often consigns our nation’s most disadvantaged households to a lifetime of poverty, poor health, and other negative conditions.

An MLP can break this cycle. It recognizes the inextricable link between unmet basic needs and health, and it gives individuals and families the tools needed to address the factors that perpetuate poor health in underserved communities. MLPs are founded on the principle that early legal intervention can prevent social stressors from exacerbating health problems in the same way that a transactional legal practice prevents litigation. By bringing doctors, lawyers and other professionals together, an MLP helps patients and their families escape the cycle of vulnerability and put them on a track toward better health and well-being.

The MLP works to improve the health and well-being of vulnerable populations, in part, by shifting the service-delivery model of both law and health care. Traditional legal aid operates in an “emergency room” model, providing crisis-driven service to clients who are able to both identify their needs as having legal remedies and connect with a local legal services agency. By the time someone reaches legal aid, she is likely to have an urgent legal need, such as an eviction. An MLP engages and trains health care providers to recognize and refer these problems earlier so that legal staff can intervene in a preventive, “primary care” model.

Traditional health care acknowledges the effect of social stressors on patient health, but stops short of recognizing the role legal remedies play in curbing poor health. Identified social problems are referred to other professionals and advocacy is considered secondary to the practice of medicine. An MLP not only emphasizes the role legal intervention can play in promoting better health, it also helps to re-orient health care providers to view advocacy as a key component in the delivery of health care.

An MLP program known as Children’s Health Advocacy Project or CHAP has been established in St. Louis. CHAP is a partnership between Legal Services of Eastern Missouri, Grace Hill Neighborhood Health Center, SSM Cardinal Glennon Children’s Medical Center, St. Louis Children’s Hospital, Saint Louis University School of Law, local pro bono attorneys, and the Missouri Foundation for Health. The CHAP program follows the national model by addressing the issues on three fronts. First, CHAP engages in direct legal representation of patient and client. The program’s attorneys seek legal solutions for barriers to health such as inadequate housing, inaccessibility to public benefits and special education services, and family instability. Second, CHAP is integrated with the residency programs at Saint Louis University School of Medicine and Washington University School of Medicine. These training sessions teach health care providers to spot legal issues, become better advocates, and understand the basics of the law. Finally, CHAP partners with health care providers to identify and address systemic, recurring legal barriers to health through litigation.

I would be remiss in discussing MLPs in St. Louis without acknowledging Missouri’s “first family” of medical-legal partnership. Dr. Patricia B. Wolff practices pediatric medicine locally with the Forest Park Pediatrics. She is an active participant in CHAP and has literally saved lives via the program. She has also traveled to Haiti to treat children regularly since 1988, and, more recently, proactively addressed some of the nutritional and economic issues in that country. Dr. Wolff is married to Missouri Supreme Court Judge Michael A. Wolff. Judge Wolff is a former attorney for multiple legal aid organizations. In addition to his many law-related activities, he also served on the faculty of the Department of Community Medicine, Saint Louis University School of Medicine, and the School of Public Health, Saint Louis University. Locally and nationally, MLPs highlight the exceptional difference that lawyers and doctors can make in the lives of their patients/clients and for society as a whole. I encourage every person who reads this article to consider helping CHAP or another medical-legal partnership by talking about the concept with the doctors you know. Together, we can make a difference.

This article originally appeared in the St Louis Bar Journal and is reprinted with permission.

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.

As lawyers, we see our clients react this way all the time. Initially, our clients come to us about a disagreement with another person. But, in time, that disagreement often leads to frustration with the perceived flaws of the other person. If litigation ensues, the cost to the client and increased level of frustration results in a growing dislike not only of the opposing party but also of the opposing counsel. Skilled professionals recognize the need to overcome this frustration and the resulting bitterness in order to provide some line of communication and to make progress toward resolution of the disagreement. Even when disputes between bitter, diametrically opposed parties must be resolved by a neutral third party’s decision, a lawyer’s ability to focus on actual issues allows for eventual conflict resolution.

My concern is the vast number of individuals currently involved in politics and policy making in our country who fail to recognize these basic principles of conflict resolution. The level of political discourse has become tremendously bitter and nasty because these individuals have been conditioned to vilify their perceived adversaries as if they were fictional “bad guys.” People that are skilled at manipulating rhetoric, including politicians and political commentators of all view-points, exploit this conditioning. When combined with our competitive two-party system, these rhetoricians treat political discourse like a spectator sport. We seem to make policy choices based on the personalities of the people proposing or opposing those choices rather than on the merits of the policy.

In their zeal to win the political game, these people have lost sight of the fact that political discourse is not about winning or losing but about setting goals and crafting policies to achieve those goals. Some partisans have ceased to recognize that those who disagree with them politically share their selfless motivation to do what they think is right for society. When we define our political adversaries as evil and their goals as the product of evil, compromise becomes impossible. Then, supporters of a rejected goal or policy see themselves as subject to evil rulers and the process of political discourse has failed. The government would be in a much better position to set goals and craft policies if politicians and political activists toned down their rhetoric and distanced their policymaking roles from the aggressive means used to acquire those roles.

Past bar leaders have encouraged lawyers to seek elected office in an attempt to achieve the goal of greater civility in the political process. I wholeheartedly support that effort. Of course, I would be naive to pretend that some politically active lawyers did not contribute to the hateful decline of public policy discourse. Instead of utilizing their problem solving skills to resolve conflicts and craft policy, some lawyers-turned-politicians utilize another legal skill: the ability to persuasively manipulate rhetoric to drive the opinions of others, in exactly the way I discussed above. So, I support the efforts of other bar leaders to encourage increased political participation by lawyers in order to enhance civil discourse, but recognize that there are also lawyers that exacerbate the problem.

The fairly extreme effort of changing your career path from lawyer to elected leader might be laudable, but isn’t really necessary for us to bring more civility to political discourse. Our professional position and legal knowledge makes us leaders in our community without election. When we discuss politics with others we have an obligation to do so with our legal reasoning and conflict resolution skills in place. If you believe that a particular policy proposal is flawed, consider stating your specific problems with that policy and avoiding the temptation to insult or demonize anybody who disagrees. You could even take civility a step further. For example, before stating your position, you could acknowledge that people who disagree with your policies or even your goals are still doing what they think is right.

Additionally, you could encourage people in political discussion not to reduce their complex opinions to sound bites and name calling, but instead to ferret out their beliefs and positions that underlie the sound bites and names. The media customs of the last few decades forced politicians to reduce their ideas to sound bites and thirty-second commercials, but most political discourse can and should occur at a substantially more relaxed and contemplative pace. We do not have to cede our democracy to shallow media types that seem incapable of complex thought and serious analysis.

Under the current scorched-earth model of political discourse, there is no attempt to achieve consensus. Instead, people force others to take unyielding positions, even though agreement could be reached on some of the underlying issues. In this model, the decision to make a statement is based entirely on the emotional impact of that statement without any real concern as to the truth of the statement.

Lawyers should not adopt that model, but should alter their political discourse to the sort of discourse we engage in with each other for the benefit of our clients. In this alternate conflict resolving model, the truth of your statements is paramount and the practical ramifications of decisions are more important than the emotional and rhetorical impact of those statements. Finally, we all recognize that scorched earth tactics result in, well-scorched earth. That is of no value to anyone in the future and inhibits the mutual respect needed to advance society and to address other problems side-by-side with those whom we have disagreed in the past.

If you are reading this article, then you have probably voluntarily chosen to join the Bar Association of Metropolitan St. Louis because it offers the opportunity to become a better conflict-resolution specialist and to provide better service to your clients in this and other ways. Membership is a hallmark that can communicate to the world that you value professionalism. Thank you and congratulations on your decision to follow the professional traditions recognized by our association since U.S. Grant was president.

If you are reading this and are not a BAMSL member, but you value the professionalism that membership represents and desire the opportunity to better serve your clients, please consider joining. You can easily join online at http://www.bamsl.org/. Please be aware, however, that online membership to BAMSL was not available until sometime after U.S. Grant left the White House.

If you are not a member of BAMSL and think I’m a crazy caitiff for not realizing that the best way to practice law is always maximum aggressiveness, I still hope you will consider joining or at least coming to an event or two. You will not only be in a better position to serve your clients by offering alternatives to the “scorched-earth” method, but you may find you are in a position to enhance your own quality of life and level of professional satisfaction. At the very least, you may accidentally enhance the quality of life and professional satisfaction of your opposing counsels.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

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.

Misconception #1:Legal Aid helps criminals. Another principal at Danna McKitrick, Joe Soraghan, recently relayed a story about an attorney who voiced this perspective to him. Joe stated that, at the time, he was attempting to solicit donations for the United Way of Greater St. Louis. In response, the attorney not only refused the solicitation but berated Joe for collecting donations on behalf of the United Way because it supports Legal Services of Eastern Missouri. The attorney said he was surprised Joe would help to fund an organization that worked to free criminals. Hearing about this exchange shocked me for several reasons. For starters, it is simply not true. While Legal Services does receive substantial funding from the United Way, it also receives funding from the quasi-governmental Legal Services Corporation. Federal statute and regulation prohibit all recipients of Legal Services Corporation funding from entering into any criminal law matter. Moreover, I find the attorney’s attitude surprising because I think of that prohibition as being based on financial considerations, not ideological ones. The prohibition prevents Legal Services and other recipients of governmental funds from duplicating services the Public Defender programs already offer criminal defendants. Lastly, the attorney’s opposition to the idea of LSEM representing a criminal defendant surprises me because I assume that, like most lawyers, he is supportive of the right of legal representation established in Gideon v. Wainwright.

Misconception #2: Legal Services takes clients that might otherwise pay other lawyers. One of the saddest things about Legal Services is that they turn away potential clients, lots of them. Legal Services is constantly and continuously evaluating its priorities. This includes placing stringent income and property qualifications on all potential clients and thereby eliminating anyone who could afford to pay an attorney. Further, Federal regulations prohibit Legal Services from taking most kinds of paid cases. Legal Services refuses to accept many types of contingency cases. Despite these government and self imposed limitations on the provision of services, the available attorney and staff time is always insufficient to provide representation to everyone who seeks it. Even if for some reason potentially paying cases slip through the regulatory scheme, those prospective clients face the worst hurdle yet: they must convince a trained member of the Legal Services staff to take their case even though they could get services elsewhere. This is a virtually impassable hurdle. Due to the limited resources of Legal Services of Eastern Missouri, staff members are regularly placed in the position of denying representation to persons that are qualified, deserving, and desperately in need of legal services. After turning away such potential clients, a staff member is never going to accept a client that can get legal representation elsewhere.

Misconception #3:Legal Services does more harm than good. I think one of the best things about our profession is our ability to disagree yet maintain professional, cordial relationships with each other. Many people bemoan the recent decline in professional courtesy and the rise of opposing counsels that are not appropriately detached and professional. Sometimes I wonder if this is really a recent trend or if lawyers have been complaining about it consistently for the last 500 years. Trend or not, there is no denying that some lawyers have more trouble with civility in the adversarial system than others. Lawyers like this that are predisposed toward incivility, are never really able to recognize any validity in the positions of opposing parties or their counsels. Moreover they may grow to see themselves as champions for their client not IN the legal system but AGAINST the legal system. These lawyers develop such sympathy for their client’s perspective that they forget all about the purpose of the law. So, when a Legal Services attorney shows up, they think because they’re not getting an easy default judgment from a pro se litigant but facing off against another trained zealous advocate the system has failed. They think that because they have to put effort into a case that they otherwise would not that the system has failed. I would submit that the system doesn’t fail when disadvantaged people are made equal, but rather the system has succeeded in dispensing justice rather than steamrolling the disadvantaged.

Misconception #4: Legal aid is for people who are not like me. It is not difficult to point out the differences between your average lawyer and your average client eligible for Legal Services’ representation. The most obvious difference is finances, lack of which is the initial basis of qualification for Legal Services. While the average lawyer can afford to hire an attorney if necessary, not all lawyers can. The historical prosperity of the legal profession has diminished and seems unlikely to return anytime soon. If your experience differs, you may wish to ask new lawyer still looking for their first job more than a year after graduation. Or ask new lawyers that have jobs practicing law but so much crushing debt from law school that their salary still doesn’t allow for more than bare essentials. Or ask the solo practitioner who had a bad month or two with a landlord that doesn’t understand the concept of a “bad month.” Or even the experienced lawyers at big firms who discovered too late that their firm wasn’t exempt from economic trouble or layoffs.

The client base for Legal Services seems very different from us because we want them to seem different. Denying that anyone of us is only a market crash away from being like them is what lets us sleep at night. Once we get past the money, the other differences are not that noticeable. Most of us are in a work setting that exposes us to a large number of people with immutable characteristics – like race, religion, age and disability – different from our own. Lawyers invented the idea that such people are equal despite their differences. We also invented the idea that access to justice should not depend on how much money you have. Locally, our shorthand for this latter idea is Legal Services of Eastern Missouri.

I’m sure I could fill this new format magazine waxing eloquent about the “justice gap.” But the last 99 years of the BAMSL’s support for Legal Services of Eastern Missouri has required more than flowery words. It requires our participation in the Volunteer Lawyer Program and our financial contributions to the current Bar campaign. Such participation and contributions also satisfies the broad mandate of Missouri Supreme Court rule of professional conduct 4-6.1. That rule states that we “should render public interest legal service” and allows us to “discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means.” The rule also offers lawyers that lack the time or skills to provide volunteer legal services an easier and less time consuming way to satisfy their ethical obligation. Specifically, it permits lawyers to meet their ethical obligation through “financial support for organizations that provide legal services to persons of limited means.” Legal Services of Eastern Missouri is happy to assist the Bar in meeting their obligations in either of these ways. By acting as a filter, Legal Services of Eastern Missouri assures that the people served are really “persons of limited means.” Moreover, it provides a structure and a mechanism for connecting these people to lawyers who wish to provide volunteer services.

To participate in the Volunteer Lawyer Program please call attorney and BAMSL member Jim Guest at 314-256-8707 or to participate in Bar Campaign online at www.lsem.org or by calling Judy Miniaci at 314-256-8742.

This article originally appeared in the St. Louis Lawyer and is reprinted with permission.

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.

Creation of organizations and oaths to provide services is ultimately meaningless without providing funding for those efforts. Without a continuing means of funding for these efforts we are left with nothing more than the model of provision of medical services to the poor that existed before the New Deal and Great Society social welfare programs. At that time, medical services for the poor were largely sustained by the benevolence of individual doctors to provide medical care to essentially random individuals who showed the courage to contact a professional, knowing they could not pay for that professional’s services. These individual doctors’ efforts were admirable but were not broad enough to meet the needs of the poor for medical services. Since our profession is much more focused on sustaining broad policy in the long term, we can also count among our accomplishments funding mechanisms that assure sustained structural provision of legal services to the poor. These efforts include not just the benevolence of individual attorneys or even the benevolence of the financing through organizations like our St. Louis Bar Foundation, but also more systematic structured mechanisms like Interest on Lawyer’s Trust Accounts and funds from payment of court costs that fund LSEM.

I spotlight our efforts to provide legal services to low and moderate income persons not merely as a point of professional pride. I have more selfish reasons. Our governmental system of checks and balances tends to assure that major legislative action occurs only when a matter reaches crisis level and when a majority of people believe that governmental intervention is mandated. At that point, governmental intervention tends to be sweeping, inefficient, and full of compromise. Doctors have learned that as a result of such intervention, the nature of their profession as a whole is subject to political change by forces outside their profession. Avoidance of such intervention and the ensuing negative impacts to our profession demand that we continue our individual and collective efforts to assure that the need for legal services for those with low and moderate income is addressed.

These continuing efforts to provide legal services to those unable to afford it can include political and financial support for a variety of local organizations and include taking pro bono cases through organized efforts like LSEM’s Volunteer Lawyer Program. Such support of and participation in these programs assures that the needs of the community are benefited as well as the needs of individual clients.

The legal profession has long been afforded the relatively unique privilege of self-regulation. If our profession is to retain that unique privilege, then we must not only continue our efforts to meet the legal needs of low and moderate income individuals, but redouble them. Preventing unmet needs from reaching crisis level assures that demand for intervention into the regulation of our profession does not increase. Any political or community intervention would interfere with our profession generally and our professional satisfaction individually.

While many lessons may be gleaned from both the recent and century long debates over health care, one is clearly applicable to us lawyers. We must individually and collectively continue to work diligently to provide legal services to people who cannot afford them. Otherwise, the legal profession risks interference similar to that just placed upon the medical profession.

This article originally appeared in the St Louis Bar Journal and is reprinted with permission.

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.

For starters, her employment path differs substantially from that of the current Justices. Early commentators, focusing her lack of judicial experience, opined that she was ill prepared to be a Justice. Unlike those commentators, I have the privilege of writing to an audience of lawyers who know that the appellate practice of a United States Solicitor General is excellent preparation for service on the United States Supreme Court. In many ways, being a Solicitor General provides just as valuable an experience as being a Federal District court judge; probably even more valuable in terms of appellate experience. For this reason, the office of Solicitor General was for many years the “on deck circle” for the Supreme Court. Now that the tradition of appointing the Solicitor General to the Court has faded, the appointment of one will certainly bring a measure of diversity to the current Court.

On first blush, Kagan’s experience at the Harvard School of Law does not seem to immediately bring anything new to the Roberts Court. A large number of legal academics have served on the high court. But, only three of the current members of the current court have legal academic experience (not coincidentally, all three were appointed by Presidents with experience in academia) and none of them as extensive Kagan’s. Certainly there are no other former deans. So, in this way, Kagan also brings a slightly different perspective to the Court.

One item that jumps out from Elena Kagan’s job as Law School Dean was her refusal to allow military recruitment on the law school’s campus. She didn’t really cut any bold new ground with this action. She merely revived a policy that had been a touch point for controversy since the adoption of the “Don’t Ask, Don’t Tell” policy nearly ten years earlier; a policy that had been litigated and legislated multiple times in the intervening ten years. However, I would suggested that in today’s world where “advise and consent of the Senate” has come to mean “a media frenzy comparable to a political election,” the fact that she has taken a political stand on any issue, much less a relatively unpopular stand, brings another note of diversity to the Court.

The most popular way to compare any United States Supreme Court nominee to the sitting Justices is to examine the nominee’s perceived political bent. I say, “perceived” because of the recurring examples of a President that falls on one side of the political spectrum appointing a Justice whose later decisions fall on the other side of the political spectrum. The most relevant example here is Justice John Paul Stevens, whose seat Kagan is nominated to fill. Stevens was appointed by Republican President Gerald Ford but there is substantial agreement in the many retrospectives, which have recently marked his retirement that he has served as a liberal vote on the Court. As a result I preface any discussion of any individual’s beliefs with the caveat that the politics of an individual are a subjective label applied by someone else to them. In this instance that someone else. Is her appointer, President Barack Obama.

I’ll let other commentators dissect the exact political beliefs of each member of the Supreme Court and where Elena Kagan might fit in with them. It’s a certainty that the President’s belief is that her views are similar to his or at least to those he aspires to and that those views are left of center (exactly how far left of center is another matter I’ll leave to those smarter than me; although everyone that seems to take on the task in the popular media does not strike me as particularly bright). Certainly there is no shortage of critics of the President’s politics who will argue that Kagan will not represent their political or judicial philosophy. Of course she won’t.

The United States Supreme Court is not a representative part of the democracy. And the politics of the last nominee, this nominee and any other nominee between now and January 2013 will not be based on the views of the citizenry at the time of the appointment. Instead they are based on what the views of the citizenry were in November 2008 when we elected our President. As lawyers we can debate endlessly the meaning of “advice and consent”. But, it’s hard to come away from any reading of Article II, section 2, clause 2 of the Constitution with a belief that anybody but the President gets to take the driver’s seat in the appointment of a Supreme Court Justice. In accordance with the

Constitution, we elected a liberal president and his choices will likely reflect his politics. So, while leaving aside the full analysis of Kagan’s politics, in the broader sense, there is little doubt that her politics diverge from several the politics of other members of the court.

I would like to examine whether her views of the law represents any measure of diversity. But, I can’t because we don’t know much about her views. Moreover, we won’t know them even after the Senate questions her. In fact, we won’t know them until she has been appointed and written several opinions. The reason for this great secret is because the appointment process has become so political and media driven. Ronald Reagan introduced the concept of a litmus test for Supreme Court Justices, which was a bit of a surprise and Presidents since have refined that test. As a result, candidates not only have to have certain views but their track record must be totally bereft of any evidence of those views in order to assure maximum potential for appointment without unnecessary expenditure of the President’s political capital. Thus, I have little to no ability to actually determine the way Kagan thinks about the law.

Instead, I am forced to conclude my observations on the ways Elena Kagan might impact the court with an examination of her own views of diversity. First, we know that despite her declared liberalism, she intentionally set about recruiting conservative faculty members for the Harvard Law faculty. She contends that while her politics differed from them she felt that the best education resulted from exposure of the students to a broad diversity of perspectives. This is of course precisely the sentiment applied to legal education that Ruth applies to our law firm and society frequently applies to issues relating to protected classes.

It is also the philosophy that I have about BAMSL. BAMSL has long striven to overcome a shameful, though now distant, history of exclusivity based on race, religion, gender and other immutable characteristics. But, if we are to initiate and achieve the sustained growth of membership I hope, BAMSL must also maintain a broader sort of diversity. One where we pay attention to even more about our members and strive to balance our ranks based on other attributes, like the size of the group with which they practice, the area of law they practice, whether they are in private practice, and whether they practice in an urban, suburban or exurban setting. This I think is the way to build a strong Supreme Court, Law firm or Bar association.

This article originally appeared in St Louis Lawyer and is reprinted with permission.