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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(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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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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A Brief History of BAMSL’s Creation of the Non-Partisan Court Plan

In 1927 the St. Louis Bar Association had been firmly established for over 50 years, though, at that time, it was not yet the Bar Association of Metropolitan St. Louis (BAMSL) we know today. The Association did not yet have a permanent home, a staff, or a club. However, the fundamental goals of BAMSL had been in place since the inception of the Association. Amongst these fundamental values was a belief that the Association should act to maintain the honor and dignity of the profession of the law, promote legal science and the administration of justice, promote and maintain the efficiency and integrity of the judicial departments of the government.

BAMSL’s daily business in 1927 would have been foreign to even the most active of today s members. It prosecuted disciplinary cases, paid the Missouri Bar dues of its members, and devoted hundreds of hours of time to the debating, voting and endorsing of candidates for judicial office. BAMSL felt an obligation to intercede in judicial elections because the people for whom democracy and justice were to be protected had little or no idea about the reputation or ability of most lawyers seeking judicial office or even of the incumbent judges. The Association did not think the public was ignorant or stupid, but simply lacked information on most candidates. Moreover, the predominant sound-bite-style advertising available then did little to assist the people in discerning the qualifications or judicial philosophies of the candidates.

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Ethical Challenges for the Personal Injury Practitioner

INTRODUCTION
Both Plaintiffs’ attorneys and Defendants’ attorneys face the potential of significant legal ethics issues arising in their practices. In Missouri, resolution of those issues is primarily governed by Rule 4 of the Supreme Court Rules. The best advice I can give you in the ethics area is to carefully review Rule 4, whenever you are confronted by an issue, which you recognize as posing ethical dilemmas. In order to increase the probability that you will recognize those issues, an annual reading of Rule 4 is recommended.

There are several other very valuable sources of information, which should be considered and consulted when ethics issues are encountered. The Missouri Bar website has significant practice resources relating to different aspects of legal ethics. Go to www.mobar.com and in the left column, click on “Lawyers” This will lead you to a page labeled “Lawyer Resources,” which contains a section called “Practice Resources.” Practice Resources contains a “clickable listing,” which leads to an abundance of valuable information regarding topics such as: fee agreements, fee dispute program information and rules, informal advisory opinions, risk management information, and information about the Office of Chief Disciplinary Counsel (OCDC). This wealth of legal ethics information is just several clicks away from your internet icon.

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