(One) Mission Accomplished

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

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

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

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

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

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Powers of Attorney v Guardianships

When your child turns eighteen years old, he or she is considered a legal adult. As an eighteen year old, he or she has the ability to contract, to make decisions such as whether he or she wants to continue to go to school, and whether a parent can be present in an IEP meeting. Further, because of HIPAA privacy rules, a doctor can no longer communicate with the parent regarding that child’s health issues. For families with a child who has special needs, they must make some critical decisions in order to protect their child who is turning eighteen. Two options for these families are seeking guardianship through the court or having the child sign a power of attorney, if appropriate.

Guardianships are a process through the court by which persons are declared incapacitated to the extent that they are unable to make their own decisions regarding medical care and placement, and an individual is appointed by the court to act in their stead. Since the court regulates the guardian, this process can become a costly affair and is a much longer undertaking than a power of attorney, especially if the appointment of a particular guardian is contested.

Conservatorships are formed whenever persons are declared unable to handle their own assets. If a guardianship is granted, a conservatorship will also typically be granted. If the person who was declared incompetent by the court has assets, the court will monitor the appointed conservator and will require annual reports regarding the use of the assets by the conservator to be filed by an attorney.  In order for a guardianship or conservatorship to be set aside, the incapacitated person must petition the court to have his or her legal rights restored and must demonstrate the previously incapacitated person is no longer in need of a guardian or conservator.

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U.S. Court of Appeals Decision Favors Student Who Brought IDEA Claim

The United States Court of Appeals, in March 2010, voted in favor of specialized children in the case, Compton Unified School District v. Addison. This case upheld the Individuals with Disabilities Education Act (IDEA), which ensures children with disabilities have access to a free appropriate public education (FAPE).

In Compton, Addison, the student, received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor promoted her to tenth-grade, despite her low performance.

During the fall semester of her tenth-grade year, in 2003, Addison failed every academic subject. Addison’s mother was reluctant to have her child tested, and the School District did not require it. Instead the School District referred Addison to a third-party counselor who recommended the School District assess Addison for learning disabilities. The School District ignored this directive and promoted Addison to the eleventh-grade.

In September 2004, Addison’s mother explicitly requested an educational assessment and Individualized Education Program (IEP) meeting from the School District. The assessment took place and Addison was found eligible for special education services on January 26, 2005, which was during the spring of her eleventh-grade year.

Addison and her mother brought the claim against the school district seeking compensation for the School District’s failure to identify her needs and provide her with a free appropriate public education.

The school district argued two issues: the first is that the IDEA’s written notice procedures limit the jurisdictional scope of the due process complaint procedure and the second is that they did not receive “clear notice” of the availability of an administrative hearing in “child find” cases. The court rejected the school district’s first argument contending that the Supreme Court has already addressed this issue. The Supreme Court has stated that a conservative reading of the IDEA would leave parents without an adequate remedy if a school district fails to identify a child with disabilities. Regarding the second issue, the court additionally struck down the school district’s argument of “clear notice” finding the IDEA clearly allows complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child.”

The court’s decision in this case provides fuel for other parents to seek compensation for a school district’s failure to identify children with disabilities in the educational system.

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The Importance of Care Plans & Beyond

A care plan is written information about how to best care for your child’s health needs. A care plan may include specific medication your child takes and the time they take it, particular foods your child should avoid, how often your child gets physical therapy, or what to do for your child in an emergency.

Care plans share information with others who take care of your child. This may include doctors, nurses, therapists, emergency medics, teachers, child care providers, respite providers, grandparents, friends, and neighbors.

An estate plan is much more than a will. An effective plan considers your personal circumstances and goals. The more important purposes of estate planning include protecting your assets during your life, planning for possible disabilities, and ensuring your wishes are carried out both during your life and after your death. Estate planning also includes planning for various health-related contingencies so your wishes are clear even if you cannot make decisions for yourself in the future. Here is a sample Care Plan for your child.

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Spotlight: Wendy Godwin, OTR/L, LMT

Frequently thought of as just a way to relax, massage therapy offers great benefits to adults and children with special needs. Massage can have positive effects on a number of conditions associated with special needs individuals. Needs such as high or low tone, poor circulation, constipation or digestive issues, sensory processing disorder, poor sleep patterns, anxiety, and others benefit from therapeutic massage.

With over 23 years of experience working as an occupational therapist, Wendy Godwin brings a unique perspective to her massage clients. She has worked in a variety of settings including psychiatry, chronic pain, hand therapy, and pediatrics. Licensed in massage therapy five years ago, she integrated this into her professional health services. Today she provides massage therapy to both adults and children, with an emphasis on special needs clients. To learn more, please contact Wendy at gwgodwin81 [at] aol [dot] com.

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St. Peters Program Helps Police ID People with Alzheimer’s, Other Conditions

A new free program in St. Peters could shorten the amount of time it takes for police to return a loved one with autism or dementia to his or her family. Families of people with a variety of health conditions, such as Alzheimer’s disease can provide information voluntarily that could help if their loved ones wander away.

Lt. Tim Snavely said the idea began with Alzheimer’s in mind, but it is open to people with a variety of conditions such as autism, geriatric diabetes, Huntington’s disease, cerebral palsy and geriatric dementia, all of which may make communication difficult.

The department is accepting voluntary information from caregivers and family members who can provide a physical description and current photograph, as well as contact information to call if a loved one is found.

Although the St. Peters program is believed to be the first of its kind among St. Louis police departments, it bears some similarities to a national registry by the Alzheimer’s Association.

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Missouri Closing St. Louis Psychiatric Center

The state of Missouri closed the short-term acute care psychiatric unit at Metropolitan St. Louis Psychiatric Center., which is a 112-bed acute care inpatient hospital led by chief operating officer Anthony Cuneo that opened in 1996.

The reorganization is part of the state’s efforts to save costs. The Department of Mental Health estimates the closures of acute care units in St. Louis, Fulton, and the Southeast Missouri Mental Health Center will save the state $1.5 million in its next fiscal year. Mark Utterback, president and chief executive of Mental Health America of Eastern Missouri said the changes will eliminate an essential service to mental health-care patients who rely on this access to immediate care where they can stay long enough to stabilize. No future plans on alternative facilities are currently being discussed.

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Toy-Lending Library for Children with Developmental Delays

St. Louis ARC developed a new program, Capable Kids and Families, designed to promote early intervention by providing children (ages 0-6) and families with developmentally appropriate toys and therapeutic equipment free of charge. This program allows parents to meet the needs of their children at home by borrowing toys that may be otherwise inaccessible, and then returning them for another family to use.

The Capable Kids and Families’ catalog contains more than 1,700 toys and pieces of equipment to choose from and once a month, a staff member visits each family’s home to observe the children with the toys and provide suggestions for the parents about when it would be helpful to swap toys so that the child can move forward in his or her therapy. While some of these toys are specialized, others can be found at Toys “Я” Us®. The toys and equipment can be kept indefinitely until they are no longer useful for the children’s development.

The St. Louis ARC, a nonprofit agency that supports people with developmental delays launched this program in December 2009 to help parents check out educational and therapeutic toys and equipment that may be otherwise too costly for them. With enough state funding to support 50 local families, a waitlist has started for families waiting to join the program. Eligible families must live in St. Louis and have a child younger than 7 with a delay in their physical, speech, sensory, or intellectual development.

For more information about the Equipment Lending Program, please contact Jean Darnell, the Director of Capable Kids and Families at jean.darnell [at] thecommunitypartnership [dot] org or by phone at 573-368-2849.

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The Arms Race of Marketing Legal

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

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

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

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

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Everybody is a Layperson

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

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

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

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