Some of the most involved discussion concerned proposed changes to Missouri's Rules of Professional Conduct concerning lawyer advertising.  The proposed changes can be accessed here.  The Bar's Executive Committee requested an extension of the comment period, to allow Bar committees to discuss the proposed changes at October 23 meetings.    Some members opposed any extension because it would allow time for others to marshall opposition to the proposals.   Others spoke in favor of an extension, noting the important First Amendment concerns implicated in the proposals. The extension, until November 1, 2008, passed by a 24-13 vote.

The Board of Governors also heard a presentation on Missouri's new Judicial Evaluation system.   The Missouri Bar has has long conducted a "judicial survey" allowing lawyers to comment on judicial performance.   In 2007, Missouri Supreme Court Chief Justice Michael A. Wolff called for improvements in the quality of information given to voters concerning judges.  As a result, Missouri's Supreme Court  created six judicial performance evaluation committees.   Each committee consists of twelve persons, six lawyers and six non-lawyers.  The committees are appointed by the Bar's Board of Governors.

The goal of these committees is to provide more information to voters about judges facing retention elections.  Often, the presentation claimed, opposition to judges is rooted in displeasure with a particular decision, such as "who is kissing who in Massachusetts."   The new evaluations present several kinds of data, to better capture several kinds of judicial performance.  The "judicial survey" and standards have been revised, so that judges are not ranked using terms like "above average" or "below average."  The presentation noted that now "every judge can be above average."  The new evaluations are available here.

In other action, the Board voted to seek legislative enactment of several family law measures, including a Uniform Act of  Uniform Act on Premarital Agreements, and the Uniform Child Custody Jurisdiction and Enforcement Act.   Governors tabled a call for legislation that would require Missouri's courts to redact or remove Social Security numbers from Family Court files before they are released to the public.

Outgoing President Charlie Harris addressed a packed room in the Diversity Plenary Session, explaining that diversity in the legal profession is a "long-standing issue" that has achieved "new importance."
 
University of Missouri at Kansas City Dean Ellen Suni moderated a panel that included (left to right): UMKC Prof. Nancy Levit, Hon. Dennis Archer, Florida Bar President Francisco Angones, and former Missouri Supreme Court Judge Ronnie White.

Diversity Plenary Session Panlelists

Ms. Suni expressed hopes that the ensuing panel discussion would spark an open dialogue about diversity.
 
Ms. Levit began by discussing diversity statistics.  While women comprise 47% of law students, they make up 30% of lawyers and "only 18%" of partners.  People of color represent 10% of lawyers and 5.4% of partners.  Openly lesbian, gay, bisexual, or transgendered lawyers have risen from 1% of attorneys in 2002 to to 1.5% of attorneys now. 
 
Ms. Levit praised "diversity of thought" as "centrally important," giving as an example a person with conservative political views feeling comfortable in a predominately liberal law firm.  The remainder of the discussion did not pick up on that concept, but instead focused on race, sex, and sexual orientation.
 
Mr. Archer discussed the "business case for diversity."  Citing the "browning" of America, he predicted that people of color will be the largest racial group in America by 2056.  Companies who realize that people of color have "discretionary dollars" to spend will achieve success in ways that other companies will not.  While companies such as GM and Pepsi Co. have made millions of dollars from marketing to people of color, the legal profession has been "tardy."  While law firms should not "dilute[]" their requirements, firms should make an effort to recruit "outstanding" candidates of color.
 
Mr. Angones remarked that lawyers are "keepers" of the "ever-changing document" known as the Constitution.  His definition of "diversity" is "inclusion."  Caucasians have benefitted from the struggles of women and African-Americans.  Mr. Angones remembered African-American friends who could not enter pools and movies, whereas he and his friends could.
 
Mr. White said that while many Missouri firms make an effort in recruitment, there is a "disconnect" in retention.  He informed the crowd that, as Chair of the Appellate Judicial Commission, he had tried to make sure the Governor had a diverse panel of choices.  Despite criticism for having done so, Mr. White thought then and thinks now that it was "the right thing" to do.
 
During the Question and Answer session, Mr. Archer suggested that white males who do poorly on law firm assignments are given the "benefit of the doubt;" whereas, minorities who do poorly on assignments earn bad reputations, and thus secure less work.  "When they [minorities] leave for another firm, that other firm benefits from" the previous firm's training dollars.  Mr. White said that many businesses inform law firms that they want diversity and will not hire without it.  Mr. White recounted that, out a room with nineteen white male attorneys and himself, the African-American judge singled out Mr. White.  The judge wished to hear Mr. White's perspective, which Mr. White attributed to his being the only person of color in the room.  Mr. Angones stated that as lwayers, we have a "particular responsibility" to let others know the importance of diversity and inclusion.
 
Bench Battles: Partisan & Nonpartisan Paths to Fair, Impartial Courts 
 
Prior to the panel discussion, projectors displayed a rotation of five ads attacking the judiciary.  Included was an advertisement criticizing a judge who released a pregnant woman's killer by relying on "foreign law" and an "unratified U.N. treaty," as well as a commercial attacking a judge identified as "Loophole Louie."
 
Charlie Harris introduced a panel moderated by Dr. Rick Hardy.  The panel participants included (left to right) Hon. Rebecca Love Kourlis of the Colorado Supreme Court, Robert Grey, Jr. of the American Bar Association, former Missouri Supreme Court Chief Judge Chip Robertson, and Missouri Representative Stanley Cox.  

Judicial Selection Panelists

Ms. Kourlis, Mr. Grey, and Mr. Robertson argued that the Missouri Plan or some version thereof is the best way of choosing judges.  Ms. Kourlis explained that judges should not be alligned with ideology or a particular gropu and that everyone should be assured of fair treatment.  Mr. Grey explained that the Framers intended for only two branches of our government to be political.  James Madison said that an independent judiciary created an "impenetrable bulwark" against the other branches' assumptions of power.  Any attempt to influence the courts' "political persuasion" should be regarded as "dangerous." 
 
Mr. Robertson argued that we "know" that the Missouri Plan works by the judges it produces, who are uniformly "careful adherents to the rule of law."  He characterized the "fight" to reform as "insidious" and claimed that reformers wish to "make the system do what [they] want."  Citing unnamed "forces from outside of this state," Mr. Robertson warned that reformers were pushing Missouri toward elections.  The problem was not "here in this room," (i.e., with members of the Missouri Bar then present) but the fight is worth "not only our time and our money, but our blood."
 
Mr. Cox replied that he knew of no "serious" attempt to elect judges.  He characterized his own reform bill, House Joint Resolution 49, as consisting of "minor changes."  Mr. Cox also cited a recent poll conducted by The Polling Company, which found that the majority of Missourians felt that having the Chief Judge on the Appellate Judicial Commission was improper, and 80% would prefer a more open process.  Mr. Cox found it difficult to judge the Missouri Plan's effectiveness without opening the Appellate Judicial Commission's meetings.
 
During the question and answer session, Ms. Kourlis explained that judges should be accountable for a fair process, not a particular outcome.  Ms. Kourlis is concerned that "activism" has been defined in the public discourse to mean "any decision you don't like."  She stated that "imitation is the sincerest form of flattery," and, to that end, the American Bar Association has supported the Missouri Plan.  The leadership is looking to Missouri, rather than the reverse.  Mr. Robertson explained that the media is barred from the Appellate Judicial Commission's meetings to keep the AJC's members from "not saying the truth" or making decisions just to be popular.  When asked if there were no flaws in the Missouri Plan, Mr. Robertson said that there was no reason to change, absent bad outcomes.  Mr. Cox noted problems of perception--that Missourians may be dismayed to find that the Missouri Association of Trial Attorneys so dominates the selection process.  

Chief Judge Laura Stith Addresses the Audience.

She praised Judge Covington, the first female Missouri Supreme Court judge, and Judge White, the first African-American Missouri Supreme Court judge as "exemplary" role models who "paved the way" for all to follow.
 
Ms. Stith stated that the Missouri Plan is not elitist and has been a key factor in increasing diversity.  She suggested that we cannot let our dialogue on this issue devolve into a discussion of "us versus them."  Instead, we should be courteous to one another, focus on our similarities, and educate the public about the judiciary and the Missouri Plan.  She praised the attendees for their work in so educating the public.

Reform supporters said the changes would have added transparency to the plan and reduce the influence of lawyers. "These lawyers know if these changes are made, they will lose their stranglehold on the process," said Rep. Jim Lembke, R-Lemay. Lee Logan, Plan to change the way judges are appointed is dead, St. Louis Post-Dispatch, Apr. 18, 2008. In contrast, anti-reformists rallied around a Democrat legislator's remark during the House floor debate, "The plan ain't perfect, but it's workin.'" Brent Martin, Effort to change Missouri Plan fails in House, Missourinet.com, Apr. 18, 2008.

The Missouri Bar made no secret of opposition to judicial selection reform, arguing that such efforts "politicize[] the process" without improving it. Prior to the House vote on H.J.R. 49, the Bar blanketed Jefferson City with lobbyists, such as Woody Cozad. The Bar coordinated a $500,000 anti-reform campaign with both Justice at Stake, and its billionaire financier, George Soros.

The Bar also worked with Chief Justice Laura Stith to block reform efforts. But Chief Justice Stith was not the only judge whom the Bar asked to engage in political activity. The Bar e-mailed appellate and circuit court judges, urging the judges to contact legislators, business leaders, and lawyers register their opposition to Missouri Plan reforms.

The Bar accused the pro-reform group Better Courts for Missouri of running misleading ads to gather reform support. Better Courts argued that judicial selection is dominated by lawyers; the Bar responded that the seven-member selection Commission was comprised of three lawyers and one Chief Justice (who is, necessarily, a lawyer). The Bar, however, contradicted itself in an e-mail imploring lawyers to oppose reform. The Bar argued that H.J.R. 49 would "inject . . . partisan politics into the system" by requiring the Senate's advice and consent. Two paragraphs later, the Bar posited that the Governor would have "the prerogative to unilaterally shift the" commission's composition.

Since the Missouri Bar is a mandatory lawyers' organization (a "unified" or "integrated" Bar), the Bar emphasizes that "restraint is exercised in taking positions on legislation that would offend a substantial portion of the membership." See Keller v. State Bar of California, 496 U.S. 1 (1980) (holding that State Bar's use of compulsory dues to finance political and ideological activities with which members disagreed violated members' First Amendment right of free speech when such expenditures were not necessarily or reasonably incurred for purpose of regulating legal profession or improving quality of legal services). When Bar members requested refunds of the considerable sums spent to oppose judicial selection reform, the Bar denied President Charlie Harris's March 15, 2008 statement that the Bar had spent $500,000 to block reform, and consequently refused to refund members' dues.

In March 2008, the St. Louis Lawyers Chapter of the Federalist Society invited the Missouri Bar to debate why its activities do not violate Keller and its progeny. The Bar declined, citing fears of future litigation.

Read the Bar dues letter

Update - The Missouri Bar responded to Better Courts for Missouri's efforts in the latest edition of "Esq." The Bar said Better Courts is merely "a fringe group." The Bar did not directly comment on Better Courts' recent letter to Missouri lawyers, nor did the Bar address Better Courts' on-line petition effort. A link to the full "Esq." article is available here.

1. Election using a nonpartisan ballot process;
2. Election using a partisan ballot process;
3. Appointment by the Governor with the advice and consent of the Senate; or
4. Appointment by the Governor from a panel of candidates nominated by a judicial commission which is organized to select the panel.

The Bar opposes House Joint Resolution 66 because it would "undo the Missouri court system as we know it" and "subject judges to arbitrary and capricious removal." Restructuring the judicial nominating commission would "upset[] the current balance" and allowing voters to "choose between four different methods of judicial selection every 10 years adds to the utter chaos that implementation of House Joint Resolution No. 66 would create."

Read the Missouri Bar's full position on HJR 66.

Dr. Jennifer Wolsing

Dr. Jennifer Wolsing, president of the St. Louis Chapter of the Federalist Society, was interviewed by Matt Daniel during the Breakfast Club show on KKWK-AM. Wolsing and Daniel discussed the Missouri Bar Watch, the Board of Governors' controversial expense-paid trip to the Bahamas for the Mid-Year Meeting, and the new developments in judicial selection reform.

Listen to the interview here.

Jennifer Wolsing possesses a Ph.D. in Analytical Philosophy from Indiana University, and graduated from Indiana University School of Law Summa Cum Laude.

On February 1, 2008, the Missouri Bar published its official positions on pending legislation (original documents available here). Two of the three pending resolutions attempt to reform the Missouri Plan, which is Missouri's current system of selecting judges and justices.

The Missouri Bar Executive Committee meets to review pending legislation. The Executive Committee consists of the Bar's officers and three members elected by the Board of Governors. This year's members include:

• Charlie J. Harris, Jr., President
• Thomas M. Burke, President-Elect
• H.A. "Skip" Walther, Vice-President
• C. Ronald Baird, Immediate Past-President
• John S. Johnston
• W. Edward Reeves
• Eric J. Wulff

Charlie Harris introduced the justices, remarking that the Missouri Bar and the judiciary work "hand-in-hand" and "share many of the same philosophies, of the same goals."

Chief Justice Stith discussed several issues that she believes will become important in the coming year. She has been talking to the Missouri Bar about improving the Judicial Transfer Program, which is a way for judicial districts to share judicial resources. At present, some attorneys are using their automatic disqualifiers to bar judges from other districts from hearing their cases, merely because the attorneys do not know the extrajudicial judges. However, this practice defeats the purpose of the Judicial Transfer Program and disallows the judiciary from most efficiently using its resources. Some propose disallowing automatic disqualifications for transferred judges, but allowing disqualifications for cause. Justice Stith hopes that lawyers will become more broad-minded about trying cases before out-of-district judges so that we will not have to take such measures.

Justice Stith is also concerned about the current public defender crisis in St. Louis, Springfield, and other urban areas. Missourians are trying to "streamline" processes to ease the burdens on public defenders.

Finally, the Missouri Supreme Court has put up new rules for comment. These rules would affect self-represented, or pro se, litigants. Currently, self-represented litigants are burdened by confusing rules and make mistakes that tie up court dockets. The new rules would inform pro se litigants what lawyers do, how affordable they are, and provide on-line resources and forms for their use. Justice Stith "look[s] forward" to hearing feedback.

Justice Teitelman thanked Mr. Harris "for selecting Paradise." He reaffirmed that Missouri's bench and Bar have "the best relationship in the country."

The Justices then asked for questions from the audience. One audience member asked Justice Stith's thoughts on judicial reform. Justice Stith began by noting that the reform proposals have nothing in common and do not purport to solve one common problem. Consequently, she believes that the reform proposals are nothing more than "change for change's sake."

Yet, Justice Stith admitted that our current system sometimes does not enable voters to make a sufficiently informed decision on their judicial retention vote. This constitutes a "serious" problem, as the retention vote is "intended" to catch the "one percent" of judges who are erroneously appointed. The retention vote should let the judiciary know that the people are in charge, which cannot happen if the voters remain ignorant.

The Missouri Bar has studied voter education in other states. Missouri spends approximately $100,000 to get judicial retention information to the public through the Internet and through brochures placed in grocery stores. Justice Stith would like to see us adopt Arizona's method of direct-mailing information to the public. This method, however, costs Arizona $1 million per year, so Justice Stith is not optimistic of such a program being adopted in Missouri. Justice Stith assured the conference participants that the Board will appoint commissions to look into "objective evaluations" of the Missouri Plan to ensure that the voters get "substantive" information during voting years.

The Missouri Bar received $177,000 more than it anticipated in enrollment fees and penalties. This is "quite a bit higher" than last year.

Mr. Stiegemeyer discussed several firm practices designed to help any firm survive a required or voluntary audit by the Audit Committee. The first rule is to avoid any mandatory audit triggers, such as multiple claims, large losses, loss patterns (i.e., similar mistakes repeatedly made), having a high-risk practice area, and application irregularities (e.g., inconsistent or unclear application information).

Next, a firm should begin risk management early in the legal representation process, starting with client intake and conflicts checking. A firm should integrate its conflicts checking system with other office systems; provide easy conflicts-check access for all firm members; check spelling variations; and should check all parties, witnesses, counsel, and entities involved. Mr. Stiegemeyer broke down relevant conflicts check information by practice area. For instance, a litigation department should include information about the insured, plaintiff(s), defendant(s), insurer, guardian ad litem, spouse(s), and all expert/lay witnesses. In contrast, a bankruptcy department needs to check only the client filing for bankruptcy, the client's spouse, and the client's creditor(s).

The firm should also regularly and consistently utilize engagement letters and fee agreements that clearly describe the planned representation, as well as non-engagement letters and closing letters (i.e., letters that officially terminate an attorney's representation of his or her client).

The firm's billing and records systems should be flexible enough to handle contingent fees, advance fees, non-refundable retainers, exclusive hourly billing, and flat fees. The firm should always consult the client on the role of all lawyers involved in the representation, and should always have a signed fee agreement with the client, even if the firm is not acting as lead counsel.

Firms should also provide written guidelines addressing issues of substance abuse and ethical breach reporting. Those guidelines should be tailored to maximize reporting. For instance, if the firm's policy is to fire an attorney for one instance of malpractice, the attorney will be extremely unlikely to self-report, which could leave the firm open to more liability.

A risk-averse firm should possess central calendaring technology. Central calendaring technology does not merely mean that the calendaring is electronic. Instead, the lawyers must all have access to one calendar that contains all dates and deadlines of all firm attorneys. The best calendar system would be able to account for statutes of limitations, pleading deadlines, court dates, discovery responses, adverse party deadlines, vacation schedules, state-specific time deadlines (e.g., the Kansas 90-day service rule), and area-of-law specific deadlines, like appeals. Mr. Stiegemeyer suggests that a firm designate one lawyer or a risk-avoidance board who ensures timely compliance and response to docketed events.

To prepare for emergencies, firms should maintain a central list containing docket and calendar control, which includes client contact information, firm file numbers and court file numbers, files maintained off-site, and destroyed files. Electronic backups should be conducted often and regularly. Firms should also have a representation continuity plan in the event of a lawyer's death. Finally, firms should be able to notify a lawyer's clients in the event that one lawyer leaves the firm to practice elsewhere. This notification plan should address decision-making control regarding future representation, the client's file disposition, the disposition of any trust fees, and what to do with the compensation if the matter is on a contingent fee and the contingency occurs.

Mr. Couch discussed the new Lawyer-to-Lawyer Dispute Resolution Program. The Missouri Bar designed this program to fill a need thus far imperfectly met by traditional dispute resolution systems, such as Alternative Dispute Resolution ("ADR"), the rules of professional responsibility, and the courts. When lawyers leave their firms or partnerships, sometimes the parties squabble over client files, fiduciary duties, and financial compensation. These dramas get played out before the courts, family and friends, the clients themselves, and the press. The parties often forget about the clients' best interests, which further exacerbates lawyers' negative public image. According to Mr. Couch, studies show that the public currently perceives lawyers as being below used car salesmen and above politicians in terms of trustworthiness.

The Lawyer-to-Lawyer Dispute Resolution Program provides a confidential process to resolve these disputes. One or more of the parties may submit the problem to this voluntary program. The process is designed to resolve disputes within thirty days. The Program is generally free, except if the parties decide to retain counsel, although the parties may be "encouraged" to make a contribution.

Two types of dispute resolution exist: (1.) non-binding resolution, which is much like arbitration or mediation; and (2.) binding arbitration. The parties may select binding arbitrations if the non-binding resolution fails to reach an agreement.

The Dispute Resolution Committee, a group of five Missouri Bar lawyers serving f our-year terms, selects the neutrals. Mr. Couch did not provide details regarding the selection criteria or the selection process. The neutrals are unpaid volunteers and will also serve four-year terms. If possible, the neutral will hail from a different area of Missouri than the parties involved.

Mr. Couch believes that this program will help lawyers "as self-regulators" to help themselves keep these disputes out of courts and out of the public eye.

Greetings from the Missouri Lawyers Chapter of the Federalist Society. Starting with daily dispatches from the 2008 Missouri Bar Mid-Year Meeting, this site will provide timely updates on the Missouri Bar's political, social, and legal activities. We hope this site provides helpful information to Missouri Bar members and all who wish to keep abreast of legal and political news in Missouri.

Atlantis Paradise Island - Site of the 2008 Missouri Bar Mid-Year Meeting

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