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.

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.

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.

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.

Judicial elections were partisan. The political bosses and their machines controlled the selection of candidates and the elections. The person most qualified to serve as a judge in the politicians eyes was the person who had done the most for their political machine or who had the potential to do the most once elected.

The Bar Association’s process of endorsing candidates was hopelessly complex, as if it had been designed by intelligent and well-meaning, but clearly overeager attorneys. The process required several rounds of balloting and involved endorsement of judicial candidates in the primaries of both political parties. The process was then repeated for the general election. This meant that when both endorsed candidates prevailed in the primary elections, and only one was endorsed for the general election, it gave the public the impression that BAMSL had essentially withdrawn their endorsement of the other candidate. The process was tremendously time consuming. Some referenda on judicial nominations were marathon meetings that extended into the wee hours of the morning.

Partisan election of judges had even more serious consequences than inconveniencing the Bar Association. The biased administration of justice and the need to raise money are all well chronicled in other histories. These problems were not unique to St. Louis, or even to Missouri. Many other states had begun to bemoan similar problems.

In this context in 1927, BAMSL began to wrestle with the inherent problems of partisan judicial elections. The first efforts of the Association recognized the failings of partisan elections but sought to correct the problems by modifying its internal procedures for the referenda. For example, it changed its procedure so that only one candidate per office received a Bar endorsement, which came without regard to political party. Another of the Association s early efforts at reform, this one involving the general election, was the relatively simple idea of a separate judicial ballot at the same election, that contained no indication of party affiliation. Unfortunately, this proved untenable as it encouraged the tendency of voters to simply under-vote in the judicial elections.

BAMSL continued to study and contemplate the problem. In April 1936, the Committee on Judicial Selection and Tenure was again charged with reviewing BAMSL internal procedures. This Committee consisted of R. Walston Chubb, Roberts P. Elam, William F. Fahey, Luther Ely Smith, Elan A. Shepley, Israel Treiman, and Ronald J. Foulis. Several members chaired the Committee but Luther Ely Smith emerged as the leader of the Committee, and subsequently the chair. The Committee ultimately ignored its charge to modify the internal procedures of the Association and instead took the much bolder move of suggesting an untried, entirely new system of judicial selection and tenure now known as the Nonpartisan Court Plan. The rest of the country refers to this Plan simply as the Missouri Plan. Although the Plan was well beyond the charge of the Committee, it does not appear to have been unexpected. Local newspapers anticipated the release of the report, and it was professionally printed for the meeting.

The new system was groundbreaking at that time because 37 of the 48 states used the system of party nomination and partisan election. Although the system was widely used, the Committee unanimously concluded the [partisan selection] system is inherently defective and presents a major obstacle in current efforts to improve the administration of justice.

The Committee referred to its grievances with the partisan system as a bill of particulars much like a criminal indictment of the day. It complained that the partisan system not only failed to encourage the best qualified candidates to seek office but, in fact, discouraged them. Because judicial office was largely dependent upon the expenditure of time and money and the solicitation of political backing, the judicial candidates had a temperament far different from that of modern jurists. The Committee complained that even upon election, judges were not able to act strictly in accordance with their well-informed view of the law because of the continuing need to seek re-election. The judges experienced tenures that, although relatively short, decimated their client relationships and in turn the private practices they abandoned for the bench. The resulting personal financial pressure forced judges to focus on fundraising and political favoritism for re-election to satisfy their basic need for continued employment.

The Committee on Judicial Selection concluded its condemnation of partisan judiciary election with its most compelling reason for change. The present system, while parading under the cloak of popular election is utterly undemocratic because the people do not in reality nominate the candidates for judicial office. The report explained candidates are usually hand picked by a small clique of party bosses who are not responsible to the people. While the report left these bosses unnamed, historians have largely focused on the political machine of Thomas J. Pendergast as the political power of the time.

Although to this point the report s bill of particulars focused its criticisms on the status quo partisan election in Missouri, the Committee was not ignorant of other possible methods of judicial selection, including nomination by the governor and confirmation by the legislature. The Committee found this latter method, then in use in California, wanting because it similarly failed to promote the most qualified lawyers to the bench based on judicial temperament, but rather based largely on party loyalty.

Although composed of members of an urban bar association, the Committee acknowledged that the system s failings they recognized were absent from elections in rural communities, where the electorate was more likely to be personally familiar with the merits and demerits of local judicial candidates. For this reason, the Committee limited their Plan to the appellate courts and urban areas only while allowing the more rural areas to opt-in to the Plan as the voters wished.

After rejecting the judicial selection method then being used, the Committee crafted an entirely new form of judicial selection that would subsequently be adopted throughout the country as the Missouri Plan. The Committee s report initially described their radical new plan as a system whereby judges are to be appointed by an official and responsible authority, whose power of appointment is guided by an intelligent opinion and subjected to final control by popular will effectively voiced through the ballot.

This was not to be a report that gathered dust on a shelf without further action. BAMSL not only adopted the report after some minor tinkering, but committed the full force of the organization to passage of the constitutional amendments necessary to implement the Plan. The membership of the Committee on Judicial Selection and Tenure was more than doubled in size to provide the labor necessary. Members of the Committee were dispatched to Kansas City54 and later Jefferson City, partially at Association expense, to introduce the Plan to government and other bar associations.

By October of 1938, the Committee had made little progress toward adoption of its Plan. Unfortunately, but not unexpectedly, efforts to commit the partisans in the legislature to a non-partisan plan were frustrated. The Committee realized that an amendment to the constitution without legislative approval remained a viable option, but would require a broader coalition than had been formed to date.59 Although presentations had been made to potential coalition partners, the Plan had yet to garner the support or really even the attention of the younger, smaller Lawyer’s Association of St. Louis or the Kansas City Bar Association. Neither organization had even appointed a committee to study the Plan much less promote it in a coalition.

However, by November of 1939, the Committee s campaign picked up steam. The Committee had turned its focus to submission by initiative petition of the necessary constitutional amendments to the voters in the November 1940 general election. The Committee also started building a broader coalition. This effort included the creation of an entity not entirely composed of lawyers to lead the coalition. The Association provided the initial $1,000.00 financing that the Committee directed to the new coalition entity once it was formed.

Within a month, the previously amorphous coalition entity had a name, the Missouri Institute for the Administration of Justice (M.I.A.J.), and a director, William W. Crowdus, secretary of BAMSL. Mr. Crowdus suggested that his new duties with the M.I.A.J. might detract from his efforts as secretary of BAMSL. But in a show of support for both Mr. Crowdus and the M.I.A.J., the Association s executive committee appointed two assistant secretaries to help him maintain the minutes of the organization and rejected Mr. Crowdus resignation or request for leave of absence. Notwithstanding this appointment, primary responsibility within BAMSL for the efforts at passage of the Plan continued to rest with the Committee on Judicial Selection and Tenure and its Chairperson, Luther Ely Smith. Mr. Smith was already receiving standing ovations at the Association s general meeting in January 1940, ten months before the constitutional referendum was put to the voters.

BAMSL actively supported the efforts of the M.I.A.J. by recommending member John Marsalek be employed as counsel for the coalition. He agreed to keep his fees to a minimum. BAMSL also completed a general mailing to its members and all area lawyers regarding the Nonpartisan Court Plan, including a response card so that attorneys could be listed as endorsing the ballot initiatives. More than 2,000 response cards were returned by attorneys indicating their support. At the time, BAMSL membership was only just over 1,000 lawyers.

Prior to BAMSL s annual elections in May 1940, many with contested races, the candidates all agreed that the membership of the Committee should remain unaltered regardless of any changes in the Associations leadership. They felt that the work of that Committee was the most important work to be carried on by the Association.

Through the second half of 1940, the Association diligently worked as a coalition team member. It also acted on several additional requests to finance the M.I.A.J., even to the detriment of other regular Association ventures. The Association coffers became so depleted, the executive committee considered serving only peanuts, crackers and popcorn, at its 1940 annual member holiday party.

By the time of the general election, the Association led a coalition with a long list of allies including most lawyers organizations as well as many non-lawyer associations. Many radio stations and newspapers had also endorsed the matter and donated air time or column space.

On election day, November 5, 1940, Missourians voted 535,642 to 445,194 to approve the amendments and adopt the Nonpartisan Court Plan.

Even though they had accomplished their goal, the Committee on Judicial Selection and Tenure had little time to celebrate their accomplishment. Less than 90 days after passage of the amendments, before the Plan could even be implemented, the partisan politicians in the legislature had passed a resolution to place repeal of the Plan on the ballot at the next general election in 1942. The attack failed and the Plan, to some degree, would subsequently be adopted in 32 of 51 U.S. jurisdictions including the District of Columbia.

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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.

The Legal Ethics Counsel for Missouri is Sara Rittman, at 217 East McCarty, Jefferson City, MO 65101. Her phone number is (573) 638-2263. The legal ethics counsel has been separated from OCDC, so that advice or opinions can be obtained from an office that is separated from the group that pursues bar discipline against attorneys alleged to have significantly violated the Code of Professional Responsibility. Informal advice can be obtained as well as formal or informal written opinions, if necessary. See Rule 5.30 for the procedures and criteria for written opinions.

Another excellent resource for practical legal ethics information is the Risk Management consultant for your legal malpractice carrier. (You are insured, aren’t you?) The Bar Plan Mutual Insurance Company insures more law firms than any other malpractice insurer in Missouri. Chris Stiegemeyer heads their risk management department. If you are a Bar Plan insured, contacting Chris about an issue before there is a serious problem is a very wise idea. If you are insured by a different malpractice carrier, that carrier will almost certainly also have someone to assist you, when you are confronted with ethical or potential legal malpractice issues. If the issue has developed to the point that a claim is possible, the risk manager, or the attorneys in the claims department, can give you advice which may eliminate or minimize the potential claim. If the ethics questions are commingled with legal malpractice questions, you may wish to consult Mallen & Smith’s excellent five volume treatise, Legal Malpractice, Fifth Edition.

I would also encourage everyone to occasionally take a look at the Oath of Admissions, which each attorney took when they were “sworn in.” The Oath, which is probably hanging in your office, contains the shorthand and quintessential summary of the ethical rules and the aspirations of the legal profession. A copy of the current Oath of Admissions and previous Oath of Admissions are both provided as attachments at the end of this chapter. The specific topics, which will be primarily considered in these materials, are conflicts of interest, fee setting arrangements, and client contacts.
A. CONFLICTS OF INTEREST
Though the concept of conflict of interest impacts a number of the sections and the comments to Rule 4, the primary provisions are embodied at 4-1.7 through 4-1.9.

The dangers in suing a client or former client are probably understood by most practitioners. However, the rule barring suits against clients is not absolute. If the lawyer reasonably believes that the representation of one client will not adversely affect the relationship with the other client; and each client consents after meaningful consultation, even some direct conflicts can be waived. If an attempt is made to waive a conflict of interest, there should be a clear writing demonstrating that the possible adverse effects on the client and the attorney-client relationship have been explained in detail, and the writing should also demonstrate that the clients’ consent is given knowingly and with true understanding. However, waivers are often difficult to sustain, if challenged. Defenses to waiver include: failure to inform the client of the exact conflict or the nature and extent of the conflict; failure to notify the client in a timely manner; and failure to advise clients of their right to obtain separate counsel to advise them regarding the conflict. Also, some conflicts are not waivable. See 4-1.8 (c)(d)(e) and (h). Others are waived only within narrowly prescribed limits. See 4-1.8 (a), (b), (f), (g), (i), and (j).

Conflict issues may also arise in connection with multiple representations. I’ll give you some auto claim examples, since they are probably most easily understood and are frequently encountered. When the driver and three passenger relatives come to your office, it is certainly tempting to “sign up” all of them as clients. However, careful thought should be given to the possibility of a conflict existing at that time, or developing in the future. The most obvious danger is that the driver of the vehicle may be deemed to have been a contributing cause of the injuries, which were sustained by the passengers. In these days of mandatory insurance, it is often difficult to rationalize a refusal to pursue that additional source of funds as well as the insurance carrier for the primary tortfeasor.

Even when conflicting liability evidence does not appear from a reading of the police report or the initial description of the matter when the clients call to schedule an appointment, evidence of a conflict may develop as the attorney is learning more about the case from the clients. It also may arise when discovery is propounded, or depositions are taken. In those regards, see Informal Advisory Opinion 20000213:

QUESTION: Attorney represents Driver 1 and two passengers in a personal injury suit against Driver 2. Driver 2 has filed a counterclaim against Driver 1. Attorney has informed all three clients that information has developed that indicated that Driver 1 was at fault. The clients that were passengers would, in that event, have a personal injury claim against Driver 1. All three clients believe that Driver 2 was at fault and want Attorney to continue to  represent all three in their claim against Driver 2 without making a claim against Driver 1.

Question 1. May Driver 1 and passengers waive any claim of conflict of interest and request that Attorney continue to represent all three in the action against Driver 2 and direct attorney not to file an action against Driver 1?

Question 2. If the passenger clients wish to proceed in the pending action against Driver 1, may the clients, upon full disclosure, waive any potential claim of conflict of interest to allow Attorney to continue to represent (a) passengers in their claim against Driver 2; (b) passengers in their claim against Driver 1; and (c) passengers and Driver 1 in their claim against Driver 2?

Question 3. Is it mandatory for the clients to have independent legal advice regarding their respective rights in this regard, or may they rely on Attorney to advise them, which includes advising them of their right to consult other counsel?

ANSWER:

Question 1. Yes, if Attorney fully discloses the conflict and the effect of the clients’ decision.

Question 2. The answers to this question are based on the information that Attorney would make full disclosure and obtain waivers of any conflicts. Attorney may represent the passengers in their claim against Driver 2, if they are suing Driver 1, regardless of whether Attorney is representing them against Driver 1. However, Attorney cannot represent them against Driver 1, and represent Driver 1 in claims against Driver 2. If some other attorney represents them in their claim against Driver 1, it might be possible to represent the passengers and Driver 1 against Driver 2, depending on the issues that arise. Joint representation of the passengers and Driver 1 against Driver 2 is not advisable if the passengers are suing Driver 1.

Question 3. Attorney should advise the clients that they may consult independent counsel. If they decline to do so, Attorney should fully advise them. If Attorney believes that any conflicting interests would interfere with Attorney’s ability to fully advise them, Attorney must withdraw from the representation.

The authorization for contingent fees as an exception to the general rule forbidding a lawyer acquiring an interest in litigation is found in Rule 4-1.8(j)(2). The ability of a lawyer to advance or pay costs is found in Rule 1-1.8(e)(1) and (2). But a lawyer may not otherwise finance the litigation or make a loan to the client. Rule 4-1.8(e).

The possible conflicts issue concerning multiple representation is presented to defense counsel on occasion, though not as dramatically. Can the same attorney defend a negligent and allegedly impaired driver of a vehicle at the same time he is defending someone, who allegedly was negligent in entrusting the vehicle to that driver? It depends on the facts, but the possibility of conflict seems reasonably apparent.

A frequently recurring conflict of interest issue from the defense perspective is that which may arise when the lawyer is defending an individual or corporation, but is being paid by an insurer. In most cases, this does not present any conflict. However, “when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure special counsel’s professional independence.” See Comment to Rule 4-1.7 “Interest of Person Paying for Lawyer’s Services.”

This concerns the often discussed tri-partite relationship. A lawyer defending a case on behalf of an individual or corporation needs to always remember that ultimately the client, within the scope of the case, is the defendant, and not the insurance carrier. If, for example, there are coverage issues present, counsel for the defendant should not become involved in rendering opinions or doing discovery relating to coverage issues, which could adversely affect the existence or extent of insurance present. Clearly, the presence of insurance or the scope of coverage can significantly impact the ability of a defendant to pay a settlement or judgment and can threaten the financial well-being of the individual or corporation the attorney is defending. Most insurers have a different claims person handle the coverage issue than the claims professional handling the claim itself, and insurers usually retain separate counsel to deal with those coverage issues. It may occasionally be tempting for defense counsel to try to assist an insurer on coverage related matters, arising in connection with the matter being defended. However, this is a temptation which must be avoided, because of both the well-being of the defendant and the ethical obligations of defense counsel. Most insurers recognize the need for defense counsel to be independent and ethical in these regards; and insurers also realize the potential danger of acting in bad faith, if the lines get too blurred or if the lines of propriety are crossed by the insurer or defense counsel concerning conflict of interest issues. The Supreme Court’s decision in In re Allstate Insurance Company, 722 S.W.2d 947 (Mo.1987), confirms that in Missouri a defense attorney can represent both the insurer and the insured. In house attorneys at Allstate could be retained by Allstate to defend insured individuals, where there was no question of coverage, and no real danger of excess verdict or any other demonstrable conflict. See dissenting opinion of Judge Rendlen, joined by Judge Billings, and of Special Judge Greene. (Contra see Gardner v. North Carolina State Bar, 341 S.E.2d 517, 316 N.C. 285 (N.C. 1986).

The 1988-1998 Report of the Missouri Department of Insurance notes that 138 malpractice claims were made regarding conflict of interest allegations. Of these, 30 were paid with an average payment of $319,127.00. As you can see, conflict of interest issues are also a fertile ground for malpractice claims, as well as potential disciplinary complaints. It is perhaps wise to err on the side of avoiding conflicts of interest.

Another valuable and necessary way of minimizing conflict of interest issues is by establishing office systems to check for such problems immediately at the beginning of each new representation. In highly controversial matters or matters of extreme urgency (TRO’s), a preliminary check, before even meeting with the client, is suggested. If you aren’t in a large firm, a manual system may work. Given the developments of technology and clients’ increased expectations for prompt action, even smaller firms may want to consider computerized conflict checking systems. Often, they are included in office management/time and billing packages. Check with your technology consultant or your malpractice carriers’ risk manager regarding alternatives, and possible recommendations.

B. FEE SETTING ARRANGEMENTS

Numerous ethical considerations impact the representation of a plaintiff in a personal injury case. Such cases are almost universally handled on a contingent fee basis. Many larger personal injury cases are handled on a split fee referral basis (i.e. wrongful death, medical malpractice, products liability, toxic tort, etc.) Also, many plaintiffs in personal injury cases are poor or middle class, and have trouble paying for the costs associated with the prosecution of a contested personal injury lawsuit. These circumstances give rise to a number of questions.

As we have seen in the previous section regarding conflicts of interest, Section 4-1.8 contains provisions relating to attorney compensation, costs, and contingent fees. However, the primary code section dealing with these is 4-1.5. That provision begins with the phrase “A lawyer’s fee shall be reasonable..” Section (c) deals specifically with contingent fees and provides as follows:

A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of thematter and, if there is a recovery, showing the remittance to the client and the method of its determination.

4-1.5(e) deals with discussions of fee splitting: A division of fee between lawyers who are not in the same firm may be made only if:

1. the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
2. the client is advised of and does not object to the participation of all the lawyers involved; and
3. the total fee is reasonable.

The comment to Rule 4-1.5, relating to division of fees, provides as follows:

A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee on either the basis of the proportion of services they render or by agreement between the participating lawyers if all assume responsibility for the representation as a whole and the client is advised and does not object. It does not require disclosure to the client of the share that each lawyer is to receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1 for purposes of the matter involved.

The Missouri Appellate Courts have dealt with fee related issues that have arisen in the last three or four years. Within a matter of months in 1999, two cases were decided by the Missouri Appellate Courts. In Risjord v. Lewis, 987 S.W.2d 403 (Mo. App.W.D. 1999), claimant John Rousseau was injured as a result of an exploding tire rim. A court appointed his wife, Janice, as guardian of her husband’s estate. Lewis did not have a contract with clients when he contacted Risjord to act as lead counsel. The contract between the three parties stipulated that Lewis was to assist with the case and advance expenses. Lewis would also share forty percent of any contingent fee. Lewis failed to assist with any part of the case beyond the initial investigative work. He also failed to advance any expenses. The client removed Lewis as attorney and Risjord later settled the case. Risjord brought a declaratory judgment action.

The court held that Lewis was not entitled to any of Risjord’s fee from the settlement. The court noted that a division of fees is only proper based on a division of service or responsibility. Id. at 405. “Merely recommending another lawyer or referring a case to another lawyer, and failing to do anything further in the handling of the case cannot be construed as performing service or discharging responsibility in the case.” Id. (internal quotations omitted). The court recommended that if Lewis wanted a share of the fee, he should have performed a share of the work. Id. at 406. Regarding Lewis’ removal, the court emphasized that a client’s right to discharge an attorney is greater than an attorney’s right to a fee split. Id. (Emphasis added.)

Given the referring attorney’s failure initially to obtain a written contract, and his failure to perform under the eventual fee contract, the result in Risjord is not surprising. Some practitioners may, however, have been surprised by the decision of the Eastern District in Londoff v. Vuylsteke, 996 S.W.2d 553 (Mo.App.E.D. 1999).

The underlying lawsuit was an action for wrongful death. Londoff’s contract with clients provided for a forty percent fee of any settlement. It also provided that Londoff could associate additional counsel at no cost. Londoff referred the clients to Vuylsteke. Londoff testified that he only spent a few hours researching the case and talked to Vuylsteke about his investigation. Vuylsteke and another attorney later settled the case. Londoff initiated this suit to recover his fee.

The court, relying on Risjord, first noted that fee division agreements between attorneys are only acceptable when they are based on a division of services or responsibility. Id. at 557. Merely recommending or referring a client to another attorney and doing nothing else in furtherance of the case does not meet this requirement. Id. The services or responsibility referred to by the court and in the rule “must relate to an actual participation in or handling of the case.” Id. Furthermore, Rule 4-1.5(e) requires a written agreement with the client. Londoff also failed to satisfy this requirement. Id. at 558.

It will be interesting to hear the comments of plaintiffs’ attorneys on this topic, but I suspect that there are a significant number of referral attorneys, who do not do much after the referral other than talk to the client infrequently, and perhaps review correspondence and key pleadings filed by trial counsel.

Note also the requirement of Rule 4-1.5(e), discussing a written agreement with the client, where each lawyer assumes joint responsibility for their representation.

Other authorities advising or regulating lawyer ethics have taken different positions on this matter. The ABA issued an opinion in 1985, indicating that substantial services did not need to be performed by the referring lawyer. That opinion focused more on the joint responsibility for the representation in the sense of assuming financial responsibility, if malpractice were committed and the client was damaged. Illinois seems to follow this line of thought.

There is also a proposed draft revision to ABA Model Rule 1.5, indicating that assuming joint responsibility for the representation requires each lawyer to assume civil liability for any malpractice of the other in the matter. The comments and explanations to the proposed changes contain the following statement: “The present language implying that the referring attorney is to look over the other’s shoulder is wrong as a matter of law and practice.”

This may be a matter that is undergoing reconsideration or change at the national level; but in Missouri at this time, the referring attorney had better be involved in a material way in the representation. This is both for reasons of compliance with the rules of ethics and in order to protect and preserve the referral fee.

Since the split fee referrals typically involve cases of serious injury or death, the malpractice exposure may be significant. The 1988-1998 report of the Missouri Department of Insurance indicates that during that time frame there were 34 claims based upon referral to another professional. Fortunately for the plaintiffs’ bar, only six of those resulted in payments, but the average payment was $550,792.00. (Do you have enough malpractice insurance?)

Issues can also arise concerning the successive representation of a party, pursuant to a contingent fee arrangement. Often, these matters are resolved quickly and informally because the first attorney does not want his ex-client to become too angry and possibly file a bar discipline complaint over whatever led to the termination of representation. The 1998 Report of the Office of Chief Disciplinary Counsel showed that there were 208 bar complaints relating to the declining or terminating of representation. This was the fourth highest category of complaints. However, if the dollars are large enough, or the relationships are adversarial enough, these matters can lead to litigation.

In Kuczwara v. Continental Baking Company, 24 S.W.3d 712 (Mo.App.E.D. 1999), Gerritzen, and then Price, represented Kuczwara in a workers’ compensation case. Both attorneys separately contracted with Kuczwara for contingency fees. Price negotiated a settlement for Kuczwara, which Kuczwara did not accept. Kuczwara terminated his relationship with both attorneys and both attorneys filed liens for their fees. Gerritzen appealed the order of the Labor and Industrial Relations Commission, which modified his award of attorney’s fees.

An attorney’s recovery under an attorney-client fee agreement is not proper when the attorney fails to complete the terms of a contingent fee agreement. Id. at 715. If the attorney-client relationship is terminated before the completion of a contingent fee contract, the attorney’s only theory of recovery is in quantum meruit for benefits conferred to the client. Id. (Emphasis added.) The court held that the evidence did not support part of the Commission’s award of attorney’s fees to Price. Id. Although Gerritzen could show exactly how much time he spent on the case, Price failed to do the same. Since Price’s representation ended before the completion of the contingency fee agreement, the only recovery available to him was in quantum meruit. Thus, the court reversed and remanded with instructions to modify Gerritzen’s award of attorney’s fees. Id. at 716.

It is important to remember that Rule 4-1.5 begins with “A lawyer’s fee shall be reasonable” and ends with 4- 1.5(e)(3) “the total fee is reasonable. This is, of course, the guiding principle governing fees. However, in the contingent fee arena, what does this really mean? Is it possible that on a slam dunk, quickly settled case, worth six or seven figures, that a 15% contingent fee is too high? It is also possible in a bitterly contested case with disputed liability and damages, involving a need to clarify or change existing case law, that a 50% fee might be extremely reasonable?

There is a lot of interesting philosophizing that could be done about these questions. However, the rubber meets the road when either a client subsequently objects to the fee, or the matter requires court approval and a judge must review and approve the fee. Many large cases involve wrongful death, minors, or people who have been injured so severely that they are now held to be incompetent and therefore court approval is required.

Some judges seem to view all fee agreements as reasonable, if there is not any serious complaint from the client. Other judges will review the fee agreements and independently determine what is reasonable. Giving advance thought to this issue and preparing evidence or argument regarding the propriety of the fee may help plaintiff’s counsel convince a reluctant judge, if the settlement must be approved. Attorneys should always be mindful, however, of the ethical requirement that the fee must be reasonable.

The problems faced by defense counsel concerning fees are less complicated that those faced by plaintiffs’ counsel, but they are very real. Some defense counsel are part of captive law firms and are really employees of the insurance carriers. In re Allstate, supra, holds that there is no ethical problem in this relationship, in and of itself. However, house counsel needs to be very careful due to the issues or problems that may arise, if a conflict is asserted. Since they are employees of the insurance company, the insurer is incurring some level of increased risk concerning bad faith, failure to settle within limits, and conflict of interest, if the actions of house counsel are deemed inappropriate and unethical.

Outside counsel are almost always paid by the hour, perhaps the most straightforward of all fee arrangements. However, as insurance companies have been more proactive in managing cases and in establishing billing guidelines, defense counsel may be confronted with questions as to whether the insurer is refusing to authorize that degree of work, which needs to be done to effectively represent the client. In my experience, these issues can almost always be talked through and resolved satisfactorily, so that the legitimate needs of the defendant client are met. If this cannot be done, an ethical dilemma is presented. Informal advisory opinion 980124, provides as follows:

QUESTION: Attorney has received a set of litigation and billing guidelines from an insurance client. Is Attorney allowed to limit services to an insured to those for which the insurance company tells Attorney the will pay? May Attorney agree to such litigation and billing guidelines absent the insured’s consent?

ANSWER: Attorney may only agree to have Attorney’s representation limited in the manner proposed, if the client consents. Under Rules 4-1.8(f) and 4-1.4, Attorney must inform the insured of the limitations in a manner such that the insured will understand the extent of the limitations and the implications of the limitations on the representation. If the insured does not consent, Attorney may not represent the insured subject to the limitations.

Usually, insureds are very happy that the cost of their defense is being paid for by their insurance carrier. It is part of what the insured contracted for in their policy of insurance. As you are no doubt aware, there are cases where parties sue their insurance companies to compel the insurance company to defend them in pending litigation. Costs of defense in complex cases can be extremely large, even if the defendant eventually prevails. However, informal opinion number 970132, raises an interesting question:

QUESTION: Does Rule 4-1.8(f)(1) require Attorney to obtain a client’s consent before representing that client for a fee, when the client’s legal fees are being paid for by someone other than the client such as an insurance company? Is written consent from the insured/client required under Rule 4-1.8(f)(1)?

ANSWER: Rule 4-1.8(f) does apply to the insurance defense situation. This is a situation involving third party payment and also multiple representation. It is necessary for the insured to consent to the third party payment as well as any other conditions or limitations imposed on the representation. The rules do not require that this consent be in writing, but it is recommended.

As previously set forth, almost all insureds are very happy to have defense counsel provided for them at the insurer’s cost, but one can envision circumstances in which the issues raised in informal opinion 970132 are real rather than theoretical. This issue does sometimes arise especially in the defense of business entities and the defense of professionals.

The issue of outside auditors reviewing attorneys fees bills on behalf of insurance carriers has been a hot topic for a number of years. Please see informal opinion 980188 in these regards. I have never personally encountered any significant problems in these regards; but on an industry-wide basis, apparently insurers feel that some defense firms have done unnecessary work or perhaps churned hours to compensate for artificially low rates.

Though the issues affecting defense counsel are not as blatant as those affecting plaintiffs’ attorneys in personal injury cases, they nevertheless present significant dilemmas.

In doing research for this seminar, I became aware of a non-personal injury case that was somewhat frightening. In United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997), the relevant issue concerned a demand by the IRS to review attorney bills and work product to determine whether the school qualified for tax-exempt status. As requested by the Department of Defense, MIT had provided billing statements to an auditing agency for review. The Court agreed that the disclosure of the information to the outside auditor constituted a waiver of both the attorney-client and work product privileges. The MIT case involves the client, MIT, voluntarily waiving the privilege. That case did not decide whether “unauthorized action by a lawyer” could be a basis for the waiver of the privilege. However, none of us envies the lawyer who arguably waived a privilege and gave the IRS access to attorney-client information.

Given the MIT holding and the Rules of Professional Conduct combined with informal opinions, defense counsel should be very careful in agreeing to disclose information to outside auditing agents, without the explicit consent of the client.

Though the problems confronted by plaintiffs’ attorneys and defense attorneys in the personal injury arena concerning fees are quite different, both are significantly impacted by the ethical rules and the comments and pertinent case law.
C. CLIENT CONTACTS
The topic of client contacts is so broad that it is impossible to meaningfully discuss within the confines of these materials. Therefore, an overview approach will be used, with more detail provided regarding several items of more specific interest.

Especially for the plaintiffs’ bar, getting clients to come in the door is a big part of the practice. When I started practicing in 1974, lawyers did not have large yellow page ads, TV commercials, or radio announcements. The concept of advertising within the profession has certainly changed. The requirements for media advertising are set forth in Rule 4-7.2. Direct mail can be used, subject to the limitations and guidelines of Rule 4-7.3 (I recently was involved in the defense of a suit against a law firm, where the plaintiff was solicited through direct mail by an attorney seeking to develop a volume practice regarding alleged violations of the Fair Debt Collections Practices Act.)

There are still fairly stringent limitations, however, regarding personal contact by phone or by meeting, where the communication is initiated by the attorney. See Rule 4-7.3(b).

Once the client has come to your door, many issues are presented. The most preliminary and basic is the formation of the attorney-client relationship. Aspects of this relationship are established even before the attorney decides whether or not to take the case. These would include the provisions relating to confidentiality, and potentially, conflict of interest.

Assuming that the client wishes to retain the attorney, and the attorney wishes to represent the client, the scope of the representation and the exact details of the fee agreement are important. As discussed previously, all contingent fee contracts must be in writing. Does your present fee agreement clearly delineate the scope of representation? If an attorney loses a case at trial, does he have a duty to file a Motion for New Trial and Notice of Appeal, or take an appeal? Do the financial terms of representation change, if any of these things occur?

Is the contract clear regarding whether the contingent fee applies to the gross amount of the settlement, or to the net amount of the settlement? What is to be done if recovery is made by a plaintiff, pursuant to a contingent fee arrangement, in a case where part of their recovery relates to subject matters other than money? What understanding exists regarding disposition of file materials at the conclusion of the case?

It should be remembered that the file belongs to the client, and needs to be delivered to the client upon demand. Matter Of Cupples, 952 S.W.2d 226 (Mo. 1997). However, typically attorneys retain files for a period of time. This is a very good risk management practice, given that something new may arise with respect to the case, or because of the remote possibility that the client may make a claim against you for malpractice. I have defended a number of malpractice cases where the attorney no longer had a file, and it certainly makes life more interesting for the defendant attorney and defense counsel, and usually makes the case harder to defend.

If you maintain files electronically, consider what you may need to go through to produce a file to a client. I have never encountered attorneys who had that issue arise, but The Bar Plan Insurance Company indicates that one attorney with a paperless office spent over $8,000.00 in order to convert an electronic file into materials that could be produced to the client upon the client’s demand. Remember all clients are entitled to their file upon demand; not just those clients who assert a malpractice claim.

Now that you have a client and have set up your file, a large number of ethical rules become significant. Perhaps the most basic is the requirement of confidentiality, which is set forth in Rule 4-1.6 and the comments to that Rule. Rule 4-1.6 provides:

a. A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

b. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The sanctity of the lawyer-client communication is such that the exceptions are very narrow. A good piece of general advice is when in doubt, assert the privilege and err on the side of confidentiality.

The conflict of interest issues were discussed above. If there is a recovery by the plaintiff, then plaintiff’s attorneys face the issues presented by 4-1.15 concerning safeguarding of client’s property.

Perhaps the most pertinent part of Rule 4 relating to Client Contact is Rule 4-1.4 concerning communication, which provides:

a. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

b. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The report of the Office of Chief Disciplinary Counsel for 1998 shows that the number one category of complaints against attorneys related to communications under Rule 4-1.4. This information should help you practice more ethically, and be more responsive, if for no other reason than to avoid bar complaints. The second highest category of complaints reported was for violation of Rule 4-1.3 relating to diligence.

That file that has been sitting on the back of your credenza for the last six months could be a ticking time bomb for malpractice. However, even if you “have everything under control” and there has been no damage to the client; and maybe you even have a strategic reason to hold off on action, an attorney would be very well served to communicate all of this to the client so that the client is reasonably informed of the status of the matter. This can avoid unnecessary client distress and unnecessary bar complaints.

Also, remember that it is important to maintain a current telephone number and address for a client, and discuss long term absences from the client’s primary residence, such as vacation. Rights of parties may be prejudiced by their inability to respond in a timely manner to their attorneys.

I believe most plaintiffs’ attorneys, and probably most defense attorneys, have had that very unpleasant feeling of being called by the docket clerk and being told that you are assigned out to trial, but then being unable to contact your client.
CONCLUSION
This article dealt with some of the more frequently occurring ethical issues encountered by plaintiffs’ and defense counsel in a personal injury practice. However, it is by no means exhaustive. As stated at the beginning of these materials, periodically review Rule 4 and consult it when you have questions. If that does not solve your problem, contact either Missouri’s Ethics Counsel, your legal malpractice carrier, or contact an attorney who is extremely knowledgeable about these matters.

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