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<title><![CDATA[The Missouri Bar Newsroom]]></title>
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<pubDate>Thu, 18 Apr 2024 20:35:06 +0200</pubDate>
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<title>Top takeaways: March/April 2024 Journal of The Missouri Bar</title>
<link>https://news.mobar.org/top-takeaways-marchapril-2024-journal-of-the-missouri-bar/</link>
<guid>https://news.mobar.org/top-takeaways-marchapril-2024-journal-of-the-missouri-bar/</guid><pp:caseid>629101</pp:caseid><description><![CDATA[<img class="image_resized image-style-align-right" style="aspect-ratio:396/auto;width:396px;" src="https://content.presspage.com/uploads/2361/c1d9126e-5cb7-47af-bf5b-2037fb925e6e/800_cjrussellsotj-020724-1.jpg?x=1713465130188" alt="CJ Russell SOTJ-020724-1" width="396" height="auto">There can be any number of challenges to putting together a successful case of automobile negligence on behalf of an injured plaintiff. But when the defendant involves a government entity or employee, governmental immunity can create additional challenges. <a href="https://news.mobar.org/sovereign-immunity-caps-do-not-apply-to-motor-vehicle-negligence-claims-against-individual-government-employee-defendants/">Read Scott Templeton’s explanation</a> for why sovereign immunity caps do not apply to motor vehicle negligence claims against individual government employee defendants.Gratitude. Whether it’s for the judiciary, legislators, or citizens, Chief Justice Mary R. Russell describes why we all have a reason to be grateful in the 2024 State of the Judiciary. But there are also challenges on the horizon that will require collaboration between all branches of government. <a href="https://news.mobar.org/chief-justice-russell-addresses-legislators/">Read Russell’s full State of the Judiciary speech</a>.Audits from the Office of the Chief Disciplinary Counsel can be stressful and nerve wracking. Kelly Dillon, OCDC fraud and investigative examiner, describes real-life cases she has seen over the years and provides tips on lawyer trust accounting in the <a href="https://news.mobar.org/worried-about-an-ocdc-audit/">latest “Ethics” piece</a>.<img class="image_resized image-style-align-left" style="aspect-ratio:263/auto;width:263px;" src="https://content.presspage.com/uploads/2361/83989995-3c0c-4297-a8a1-befbabc2ec39/800_managementmattersmarchapril2024.png?x=1713465268746" alt="Management Matters MarchApril 2024" width="263" height="auto">Hon. Ron Carrier, Mark Blanton, and Carleigh Cavender give shoutouts to their professional mentors in this issue’s <a href="https://news.mobar.org/closing-statements-who-is-your-professional-mentor/">“Closing statements.”</a> For the chance to be featured in the next issue of the Journal, let us know how you maintain a work-life balance: <a href="https://mobar.wufoo.com/forms/closing-statements/" target="_blank">mobar.wufoo.com/forms/closing-statements</a>.Considering texting clients? <a href="https://news.mobar.org/sms-sos-navigating-texting-clients/">Click here</a> to read the pros, cons, and other considerations.The Journal of The Missouri Bar is the official publication of The Missouri Bar. Published six times annually, the Journal carries substantive articles on timely legal issues, as well as regular columns, practice management articles, and features covering cutting-edge topics that are trending in the legal profession. Notices of Supreme Court of Missouri rule changes, upcoming meetings, continuing legal education programs, and more may also be found in each issue. Read the full March/April issue <a href="https://mobar.org/site/NewsEvents/Journal/site/content/News-and-Events/Journal_of_the_Missouri_Bar.aspx?hkey=448946d4-be9f-40ba-9e42-348be6a86e62" target="_blank">here.</a>]]></description><category><![CDATA[molawyers,journal]]></category>
<pubDate>Wed, 17 Apr 2024 11:00:00 -0500</pubDate>
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<title>Closing statements: Who is your professional mentor?</title>
<link>https://news.mobar.org/closing-statements-who-is-your-professional-mentor/</link>
<guid>https://news.mobar.org/closing-statements-who-is-your-professional-mentor/</guid><pp:caseid>626851</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[Hon. Ron Carrier, 31st Judicial Circuit, Associate Division 26 Greene County Judicial Courts Facility, Springfield“I first had an interest in becoming an attorney when I was a freshman in high school. That year a new attorney, Jane Baxter Jones, opened her office in my hometown of Mt. Vernon. I stopped by one day and asked whether she might need some office help. She said, ‘Tell you what. This summer, I’ll pay you a dollar an hour to answer the phone and greet people when they come in the office. In exchange, I’ll teach you how to type and take you around with me so you can see what ‘being a lawyer’ is all about.’ Thus began a mentorship and friendship that continues 45 years later. I’ve never made a significant career decision without seeking her guidance. ”Mark Blanton, Blanton, Nickell, Collins, Douglas & Hanschen, Sikeston“Three of my main mentors in the legal business have been Mary Reitz, Paul Brown, and Marcy Graham. Mary was my first supervisor when I started my career at the Missouri Attorney General’s Office. Mary taught me a lot about litigation skills, building relationships with the staff and other lawyers at my office, and other skills that I have used in my practice to this day. Paul was my section chief for about a year or so while I was at the AG’s office. Paul always made time to talk with line attorneys like me when we had questions or concerns about something, and I learned a lot about how to be a resource for others in a firm or other law office from him. Marcy needs no introduction. I primarily interacted with Marcy in the legal field when I was a summer associate at Gray, Ritter & Graham between my second and third year of law school. He has advised me about many things in the practice of law and taught me a lot about how to carry myself as a lawyer.”Carleigh Cavender, Stinson, St. Louis“I have had the good fortune and privilege of being guided by several wonderful personal and professional mentors over the years. All have a few things in common. Most importantly, they have all been kind, considerate, thoughtful people who have made time for me and given me support when I’ve asked for it. They have all been good listeners and/or good observers (it’s hard to get good guidance from someone who does not know, see, or hear what you are going through). They have all been reasonable and wise. They have all been able to be honest with me and hold me accountable when I needed that, without being harsh or cruel. And, probably just as important, they have all given me the space to make mistakes and struggle (for which I am extremely grateful). S/O to a few in the practice of law: Prof. Christina Wells; Prof. Erika Lietzan; Julia Rives; the Hon. J. Karen King Mitchell; the Hon. J. W. Brent Powell; the Hon. J. Theresa Lazar Springmann; Alixandra Cossette; Nicci Warr; Mary Grace Monaco Warren; and Emily Holtzman.”We were wondering… How do you maintain a well-balanced life? Share your answer by writing to <a href="mailto:nhillen@mobar.org" target="_blank">nhillen@mobar.org</a> or filling out a form at <a href="https://mobar.wufoo.com/forms/closing-statements/" target="_blank">mobar.wufoo.com/forms/closing-statements</a>.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Tue, 16 Apr 2024 07:00:00 -0500</pubDate>
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<title>In Brief: March-April 2024</title>
<link>https://news.mobar.org/in-brief-march-april-2024/</link>
<guid>https://news.mobar.org/in-brief-march-april-2024/</guid><pp:caseid>626855</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[Complete and file your 2023-24 MCLE hours Missouri lawyers must complete their minimum 15 continuing legal education hours by June 30 and file their online annual reports by July 31. Three of the 15 CLE hours must be devoted to ethics topics, with one of those hours covering diversity, inclusion, cultural competency, or elimination of bias. Remember to remove email filters on Missouri Bar communications and have an updated email address on file to avoid missing important reminders regarding MCLE compliance and requirements. To review MCLE requirements and file your hours, visit <a href="https://mobar.org/mcle" target="_blank">MoBar.org/MCLE</a>. For a list of upcoming CLE opportunities, visit <a href="https://mobarcle.mobar.org/" target="_blank">MoBarCLE.MoBar.org</a>. <img class="image_resized image-style-align-right" style="aspect-ratio:297/auto;width:297px;" src="https://content.presspage.com/uploads/2361/9ba0df57-492c-4c13-99e2-a6ee353d3b1c/800_ylscommunityservicemarch2024.png?x=1712253371105" alt="YLS community service March 2024" width="297" height="auto">YLS members volunteer at early childhood center Several YLS members gathered at the Southside Early Childhood Center in St. Louis on Feb. 23 to give back to their community. The volunteers toured the facilities before helping staff sanitize classroom equipment and chairs, clean strollers, and build furniture. The YLS members also visited with some children at the center. Read more about the YLS Council’s community service projects at <a href="https://news.mobar.org/?h=1&t=mobaryls" target="_blank">News.MoBar.org</a>.2023 Annual Report now available From member benefits and civics education to CLE opportunities and legislative engagement, The Missouri Bar is here to help lawyers even better serve their clients and communities, while also improving the administration of justice on behalf of citizens. This mission is highlighted in the bar’s 2023 Annual Report, which outlines the organization’s activities and successes over the past year in support of its strategic goals. To read the full report, visit <a href="https://mobar.org/site/About/Our_Guidelines_Reports/site/content/About/Our_Guidelines_Reports.aspx#annual" target="_blank">MoBar.org</a>.<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/b6ec494e-5132-4bff-bafd-6b0cf991808c/500_disputeresolution.jpg?x=1712253386892" alt="Dispute resolution" width="200">Lawyer-to-Lawyer Dispute Resolution Program helps facilitate solutions Under Rule 5.10, the no-cost Lawyer-to-Lawyer Dispute Resolution Program offers a mediation-like process and binding arbitration to resolve disputes between lawyers over money and property issues, as well as complaints about professionalism matters. Lawyers can volunteer as facilitators, while the Lawyer-to-Lawyer Dispute Resolution Committee oversees the program. Read more about the bar’s dispute resolutions programs at <a href="https://mobar.org/dispute_resolution" target="_blank">MoBar.org/Dispute_Resolution</a>.Tech TipArtificial intelligence (AI) tools, such as ChatGPT, are popping up everywhere. While these tools are very useful and show a lot of promise, they also pose new risks to law firms. AI remembers and shares what you feed it, posing potential for breach of confidentiality and proprietary information. To even better serve your clients, every firm and organization would be well-served to research and write an AI policy that covers acceptable and ethical use of such tools. Read a recent practice management piece about ChatGPT and how to navigate large language models <a href="https://news.mobar.org/we-need-to-talk-about-chatgpt/" target="_blank">here</a>.<img class="image_resized image-style-align-right" style="width:200px;" src="https://content.presspage.com/uploads/2361/aa4cd614-a2dc-40fa-872a-82a6902327fd/500_savethedate-phone.jpg?x=1712253400257" alt="Save the date - phone" width="200">Save the date<ul><li><a href="https://mobar.org/site/NewsEvents/Spring_Committee_Meetings/site/content/About/2024_Spring_Committee_Meetings.aspx" target="_blank">Spring Committee Meetings</a> will be held virtually April 29-May 3. </li><li>Well-Being Week in Law will be held May 6-10. </li><li>The <a href="https://mobarcle.mobar.org/item/2024-mosolo-small-firm-conference-603890" target="_blank">MOSOLO Small Firm Conference</a> will take place June 6-8 in Osage Beach. </li></ul>]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 15 Apr 2024 08:00:00 -0500</pubDate>
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<title>The flag: Medical malpractice statute of limitations, at-will employment, and more</title>
<link>https://news.mobar.org/the-flag-medical-malpractice-statute-of-limitations-at-will-employment-and-more/</link>
<guid>https://news.mobar.org/the-flag-medical-malpractice-statute-of-limitations-at-will-employment-and-more/</guid><pp:caseid>626847</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journal-w.dudleymccarter.jpg?x=1712250440800" alt="Journal - W. Dudley McCarter" width="200"> W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.MEDICAL MALPRACTICE STATUTE OF LIMITATIONS WAS NOT EXTENDED BY CONTINUING CARE  Templeton v. Orth, 2024 WL 340946 (Mo. banc 2024). In Templeton v. Orth,1 Dane Templeton appealed the circuit court’s judgment sustaining a motion for summary judgment in favor of Dr. Charles Orth and Orthopedic Surgeons Inc. (collectively, “Dr. Orth”), arguing there were genuine issues of material fact as to whether his medical malpractice action was timely. Templeton stated his action was within the statute because the continuing care doctrine applied to toll the two-year statute of limitations. The Supreme Court of Missouri affirmed the circuit court’s judgment.2 In this case, Templeton met with Dr. Michael Tilley and received an alternative plan from Tilley. Templeton decided to follow Tilley’s plan by discontinuing the antibiotics Orth prescribed without further consultation with Orth. Based on these actions, “the only reasonable interference is that Templeton intended to terminate the physician/patient relationship with Dr. Orth at that time.”3“Templeton did not merely fail to make and keep follow up appointments. Instead, he actively pursued an alternative treatment plan and – without consulting Dr. Orth – chose to follow that alternative approach and stop taking the antibiotics Dr. Orth had prescribed … When Templeton took these actions, he terminated his continuing care relationship with Dr. Orth regardless of whether a ‘reasonable time’ had passed since Templeton’s last appointment.”4Under Missouri law, medical malpractice suits must be brought within two years of the date of the alleged act of negligence, with one exception being the common law doctrine – also referred to as the continuing care exception.5 Since “the undisputed facts show Templeton ended his physician/patient relationship with Dr. Orth before October 9, 2016,” and Templeton did not file his suit until Oct. 9, 2018, the Court found Dr. Orth was entitled to judgment since Templeton’s suit is barred by the two-year statute of limitations in § 516.105.6ARBITRATION WAS WAIVED BY PARTY THAT ENGAGED IN SUBSTANTIAL LITIGATION  GFS II, LLC v. Carson, 2023 WL 8588316 (Mo. App. W.D. 2023). GFS II, LLC (“Gateway”) filed suit against Janelle Carson alleging that Carson had defaulted on a loan which financed her purchase of a used car from a Gateway affiliate. Carson counterclaimed, alleging that Gateway violated federal and state statutes by selling her a defective vehicle and by charging her $1,800 for an extended warranty. After two years of litigation, Gateway moved to compel arbitration. The circuit court denied Gateway’s motion, finding that it had waived its rights to compel arbitration by engaging in substantial litigation. Gateway appealed, and the Missouri Court of Appeals-Western District affirmed the judgment in GFS II, LLC v. Carson.7 The court stated its pre-Morgan decisions in Ford Motor Credit Co. v. Jones8 and TD Auto Finance, LLC v. Bedrosian9 “should no longer be followed, to the extent they hold that a claim of waiver of the right to arbitration, based on active participation in litigation, must be submitted to an arbitrator under a generic delegation clause.”10 Despite the fact that an arbitration agreement generally submits issues of “enforceability” or “arbitrability” to the arbitrator, claims of waiver-by-litigation are decided by the circuit court.11"Turning to the merits, the circuit court’s conclusion that Gateway waived its right to compel arbitration, by engaging in more than two years of litigation, is amply justified. Missouri has long recognized that parties may waive the right to arbitration. ‘Waiver results from a party’s substantial participation in litigation to a point inconsistent with an intent to arbitrate[.]’12 “'The function of arbitration is to be a speedy, efficient and less expensive alternative to court litigation.' Gateway’s conduct in this case – engaging in extensive litigation of Carson’s counterclaims for more than a year – is the antithesis of seeking a streamlined, expeditious arbitral resolution."13AT-WILL EMPLOYEE WAS NOT ENTITLED TO BE PAID FOR UNUSED VACATION DAYS  Frensley v. DataFile Technologies, LLC, 681 S.W.3d 238 (Mo. App. W.D. 2023). The trial court found that Christopher Frensley became an at-will employee at DataFile and that the at-will employment doctrine applies to claims for unpaid compensation. Frensley appealed and the Missouri Court of Appeals-Western District affirmed the judgment in Frensley v. DataFile Technologies, LLC.14 Employment at-will is when “an employment relationship in which the employer and employee have the right to terminate employment at any time for any reason, or no reason at all.”15 “To establish a claim for breach of contract, the party asserting the claim must establish the existence of a contract, the rights and obligations imposed by the contract, a breach, and damages.”16 “Employment-at-will is not a legally enforceable employment relationship because it is terminable at will of either party, on a moment-by-moment basis.”17“Typically, [a]n essential element to an employment contract is a statement of duration ... Alternatively, if there is not a specific duration expressed, the contract must be one that places limits on the employer’s rights to discharge at will ... One cannot have an employment contract without either an expressed duration or some specified limitations on discharge.”18“[T]he only legally enforceable promise created out of at-will employment is the employer’s promise, whether express or implied, to pay the employee for the work performed by the employee.”19 The court found that “Frensley did not establish the existence of a contract requiring DataFile to pay him for accrued, unused paid time off.”20 FOLD IN FLOOR MAT WAS NOT OPEN AND OBVIOUS AS A MATTER OF LAW  Anslinger v. Christian Hosp. Northeast-Northwest, 2024 WL 235608 (Mo. App. E.D. 2023). At trial, a photograph was admitted depicting the Christian Hospital Northeast-Northwest vestibule before Patricia Anslinger entered, which showed a slight fold at the point where two of the floor mats converged. Shortly later, Anslinger tripped and fell on the fold as she walked through the hospital vestibule. While responding to questioning on cross-examination, Anslinger stated she couldn’t see the fold in the mat because she was not “looking straight down,” and further agreed with opposing counsel that had she been looking down, she would have seen the fold in the mat because it was “open and obvious.”21 The jury returned a verdict attributing 65% of the fault to the hospital and 35% to Anslinger. The jury assessed the total damages at $150,000, resulting in an award of $97,500 in damages in favor of Anslinger. The hospital appealed, and the Missouri Court of Appeals-Eastern District affirmed the verdict.22 “Prior Missouri holdings demonstrate that simply because a defendant presents evidence indicating a plaintiff could have seen an unobscured dangerous condition does not mean the condition is necessarily open and obvious as a matter of law. Moreover, whether an invitee fails to keep a careful lookout and notice potentially dangerous conditions, either obscured or openly visible, is a question for the finder of fact to answer at trial when allocating fault under Missouri’s comparative fault principles.”23The jury must also consider the obviousness of the dangerous condition when evaluating comparative fault.24 In this case, the jury decided Anslinger was 35% at fault for the trip and fall due partly to Anslinger not keeping a careful lookout for dangers and noticing the fold in the floor mat.25 “Plaintiff should not have reasonably been expected to discover the condition of the floor mat which she tripped upon and recognize its potential danger,” the court ruled.26Endnotes1 2024 WL 340946 (Mo. banc 2024).2 Id.3 Templeton, 2024 WL 340946 at 3.4 Id. at 4.5 Rev. Mo. Stat. § 516.105.1.6 Id. at 5.7 2023 WL 8588316 (Mo. App. W.D. 2023).8 549 S.W.3d 14, 24 (Mo. App. W.D. 2018).9 609 S.W.3d 763, 770-71 (Mo. App. E.D. 2020).10 2023 WL 8588316 at 9.11 Lopez v. GMT Auto Sales, Inc., 656 S.W.3d 315, 327-28 (Mo. E.D. 2022).12 2023 WL 8588316 at 10 (quoting Lopez, 656 S.W.3d at 327).13 2023 WL 8588316 at 12 (quoting Estate of Sanderfur v. Greenway, 898 S.W.2d 667, 669 (Mo. App. W.D. 1995)).14 681 S.W.3d 238 (Mo. App. W.D. 2023).15 Am. Fedn. of State, Cnty. And Mun. Employees, AFL-CIO, Counsel 61 v. State, 653 S.W.3d 111, 122 (Mo. banc 2022).16 Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo. App. E.D. 2014).17 Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 26 (Mo. App. W.D. 2008) (emphasis in original).18 Id.19 Id. at 26.20 Frensley, 681 S.W.3d at 243; See also, e.g., Kaskowitz v. Commerce Magazine, Inc., 793 S.W.2d 628, 630 (Mo. App. E.D. 1990).21 Anslinger v. Christian Hosp. Northeast-Northwest, 2024 WL 235608, 1 (Mo. App. E.D. 2023).22 Id.23 Id. at 5 (citing Bartel v. Central Markets, Inc., 896 S.W.2d 746, 747-48 (Mo. App. E.D. 1995); Lacy v. Wright, 199 S.W.3d 780, 784 (Mo. App. E.D. 2006); Morrison v. St. Lukes Health Corp., 929 S.W.2d 898, 905 (Mo. App. E.D. 1996)). 24 Morrison, 929 S.W.2d at 905.25 Anslinger, 2024 WL 235608 at 5.26 Id. at 6 (citing Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993)).]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 15 Apr 2024 07:00:00 -0500</pubDate>
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<title>Out of the office: March-April 2024</title>
<link>https://news.mobar.org/out-of-the-office-march-april-2024/</link>
<guid>https://news.mobar.org/out-of-the-office-march-april-2024/</guid><pp:caseid>626854</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="aspect-ratio:421/auto;width:421px;" src="https://content.presspage.com/uploads/2361/b9e21eb9-0aef-4da1-9d8a-ccef26e77040/800_outoftheofficejudgesengheiser.jpg?x=1712252612581" alt="Out of the Office Judge Sengheiser" width="421" height="auto">Hon. Jason Sengheiser had a unique view of the Milwaukee skyline during a recent sailing adventure on Lake Michigan. Sengheiser says such excursions help him come back refreshed and ready to handle whatever is on his docket: “I think sometimes we don’t even realize the stress that weighs on us until we take some time off and remove ourselves from our normal environment.”Share your “Out of the Office” photo with us for a chance to be featured in In Brief. Email <a href="mailto:hkiddoo@mobar.org" target="_blank">hkiddoo@mobar.org</a> or tag us on social media using #MOLawyersLivingWell.]]></description><category><![CDATA[journal,molawyers,MOLAP]]></category>
<pubDate>Fri, 12 Apr 2024 11:00:00 -0500</pubDate>
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<title>MoBar memory: March-April 2024</title>
<link>https://news.mobar.org/mobar-memory-march-april-2024/</link>
<guid>https://news.mobar.org/mobar-memory-march-april-2024/</guid><pp:caseid>626853</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="aspect-ratio:347/auto;width:347px;" src="https://content.presspage.com/uploads/2361/86384d82-9639-43bc-9ef1-956b430c93ce/800_jurorappreciationweek2019poster.jpg?x=1712252399123" alt="Juror Appreciation Week 2019 Poster" width="347" height="auto">   In 2019, The Missouri Bar’s Juror Appreciation Week poster was recognized with a national award. Every year, the bar distributes celebratory materials at no cost to lawyers, judges, and courthouses across the state. Order this year’s poster at <a href="https://missourilawyershelp.org/" target="_blank">MissouriLawyersHelp.org</a>, then share pictures of it on display using #ThankAJuror on social media. Read more about the celebratory week <a href="https://news.mobar.org/thankajuror/" target="_blank">here</a>.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 11 Apr 2024 08:00:00 -0500</pubDate>
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<title>Tax court finds option agreement was taxable gift</title>
<link>https://news.mobar.org/tax-court-finds-option-agreement-was-taxable-gift/</link>
<guid>https://news.mobar.org/tax-court-finds-option-agreement-was-taxable-gift/</guid><pp:caseid>626845</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[The tax court recently held that a purchase option in a family business resulted in a taxable gift.]]></pp:summary><description><![CDATA[<img class="image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journalscottvincent.jpg?x=1712249589714" width="200" alt="Journal Scott Vincent"> Scott E. Vincent is the founding member of Vincent Law, LLC in Kansas City.In Huffman v. Commissioner of Internal Revenue,1 the tax court found that when a son exercised an option to purchase shares from his parents in a family business, the valuation of the shares did not meet Internal Revenue Code requirements and was not comparable to an arm’s length transaction between unrelated parties. Background  The taxpayers in this case were Lloyd and Patricia Huffman, both long-time employees of Infinity Aerospace, Inc., formerly Dukes, Inc. (Dukes). Lloyd Huffman was a design engineer and Patricia Huffman had been a bookkeeper. In 1970, Lloyd Huffman became president and acquired 113,365 shares in Dukes. In 1979, Lloyd Huffman and Patricia Huffman formed the Huffman Family Trust, appointing themselves as trustees, and Lloyd Huffman had his Dukes shares reissued to the trust. In 1987, Lloyd Huffman was involved in a near-fatal car racing accident, and their son Chet Huffman became CEO and issued 5,000 shares of Dukes. The trust acquired 5,000 additional Dukes shares in 1990. Also in 1990, Lloyd Huffman entered into an agreement with the majority shareholder, Robert L. Barneson, granting Lloyd Huffman the right to purchase Barneson’s 322,241 Dukes shares upon Barneson’s death or by right of first refusal for a price not to exceed $2 per share. The agreement did not have a specific termination or exercise date for purchasing the Barneson shares. In June 1993, Lloyd Huffman assigned his rights in the agreement to Chet Huffman. In August 1993, Chet Huffman exercised the purchase rights and agreed to pay Barneson $150,000 for his 322,241 shares. This purchase made Chet Huffman the majority shareholder in Dukes with 43.7% of the outstanding shares. In August 1993, Chet Huffman entered into additional right-to-purchase agreements with the trust (15.8% of Dukes shares) and with an S corporation owned by Patricia Huffman called Dukes Research and Manufacturing, Inc. (DRM) that owned Dukes shares (40.5% of Dukes shares). For nominal initial consideration, these agreements gave Chet Huffman the right to purchase the DRM shares for $3.6 million and the trust shares for $1.4 million, upon the deaths of Lloyd and Patricia Huffman or by right of first refusal, except for family purchase offers. A later addendum gave Chet Huffman the right to exercise the right-to-purchase agreements at any time. Chet Huffman’s rights under the agreements were not assignable without mutual consent. The agreements specifically stated that they were for family ownership retention and were not compensatory, and Chet Huffman obtained a tax opinion letter confirming that the purpose of the right-to-purchase agreements was not compensatory. Chet Huffman significantly grew the Dukes business as CEO, expanding product offerings and acquiring a strong workforce. For the fiscal year 2006, Dukes had revenue of $28 million. Chet Huffman exercised his purchase rights under the right-to-purchase agreements in 2007, purchasing the DRM shares for $3.6 million and the trust shares for $1.4 million, about $11.83 per share. The IRS determined a gift tax deficiency and penalties with respect to Patricia Huffman’s 2007 tax return, asserting that Chet Huffman received a taxable gift when he exercised his purchase rights under the right-to-purchase agreements. Statutory background and positionsSection 2512(b) of the Internal Revenue Code provides that property transferred for less than adequate and full consideration results in a deemed gift to the extent the value of the property transferred exceeds the value of the consideration. For gift tax purposes, § 2703(a)(1) provides that the value of property is to be determined without regard to options, agreements, or other rights to use the property for a price less than fair market value. Section 2703(b) provides an exception for any option, right, or restriction that (1) is a bona fide business arrangement; (2) is not a device to transfer the property to family members for less than full and adequate consideration; and (3) has terms comparable to similar arrangements in arm’s length transactions. The IRS argued that the second and third requirements in § 2703(b) were not met by the right-to-purchase agreements. The IRS asserted that the value of the shares transferred pursuant to the agreements was about $31.3 million, and that the excess of this value of the $5 million paid should be deemed a taxable gift. The taxpayers, Patricia and Lloyd Huffman’s estate, argued the right-to-purchase agreements represented valid business arrangements, and that Chet Huffman paid additional consideration for the shares in reduced compensation over the years rather than full value at the time of purchase. Chet Huffman’s salary from 1993-2006 was $65,000-85,000. His salary in 2007 increased to $147,000 but that was still significantly less than another Dukes officer salary of $243,300. The taxpayers thus argued that Chet Huffman had forgone approximately $3.5 million in prior year compensation. The taxpayers also argued that the right-to-purchase agreements were comparable to the agreement with Barneson, which they asserted was an arm’s length transaction. Tax court analysis With respect to the right-to-purchase agreements, the tax court first found the agreements were not a testamentary device to transfer the shares for less than full consideration under § 2703(b)(2). Even though there was a prior opinion that the agreements were not compensatory, the court found that Chet Huffman’s reduced salary over the years should be deemed consideration for the right-to-purchase agreements. The court also found that Chet Huffman’s purchase of shares in 2007 for $11.83 per share represented an increase in value of 2,414%, which the court viewed as unusual and unexpected. The court finally noted the right-to-purchase agreements have some characteristics of an arm’s length transaction, including Lloyd and Patricia Huffman’s desire to obtain enough from the shares for retirement and Chet Huffman’s desire to pay a lower price and obtain a profitable return in a shorter period of time. However, the tax court next determined that the right-to-purchase agreements were not sufficiently comparable to arrangements in other arm’s length transactions to meet the requirement under § 2703(b)(3). The court noted there were similarities with the Barneson agreement but ultimately found there were material differences and this was only one isolated comparable agreement. As a result, the court held the right-to-purchase agreements were to be disregarded for purposes of valuing the Dukes shares that Chet Huffman purchased in 2007. The tax court then turned to the IRS and taxpayer valuation opinions and evidence. As noted, Chet Huffman had paid $5 million for the shares but the IRS expert concluded the value of the Dukes shares in question was $31.3 million. The taxpayers argued the proper value was $5 million under the right-to-purchase agreements, but also offered an expert valuation of about $16.1 million at trial. After comparing the valuation reports and testimony in some detail, the court found the IRS expert’s valuation was proper with an adjustment relating to revenue assumptions. Importantly, the tax court found the taxpayers had reasonable cause in failing to file gift tax returns and pay gift tax due because they reasonably relied on their professional advisors and provided them with all necessary information to determine a potential gift tax liability.2 Conclusion Huffman is a detailed opinion that may help identify key considerations for family buy-sell agreements and transition planning, particularly in the context of potentially taxable gifts. The opinion also provides good insight into the tax court’s view of expert valuations and the importance of obtaining expert opinions and advice to avoid potential penalties.Endnotes1 T.C. Memo. 2024-12.2 Of note but not addressed in this article, the tax court found in favor of the IRS on some income tax issues relating to a subsequent sale of Dukes.]]></description><category><![CDATA[journal,molawyers,LPMMoney,PracticeManagement]]></category>
<pubDate>Wed, 10 Apr 2024 08:00:00 -0500</pubDate>
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<title>SMS SOS: Navigating texting clients</title>
<link>https://news.mobar.org/sms-sos-navigating-texting-clients/</link>
<guid>https://news.mobar.org/sms-sos-navigating-texting-clients/</guid><pp:caseid>626837</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[Texting is such an integral part of American life that we shouldn’t be surprised it has entered the chat in attorney-client interactions.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journaljeffreyschoenberger.jpg?x=1712247097720" alt="Journal Jeffrey Schoenberger" width="200"> Jeffrey R. Schoenberger is a senior consultant at Affinity Consulting Group.For many clients, their cell phone is usually their only phone line, often their primary source of internet connectivity, and unsurprisingly, the center of their communication universe. Texting clients is divisive among lawyers, with some denouncing the practice under any circumstance and others doing so routinely. It’s easy to fall into the habit of regularly texting for work matters without fully considering the ramifications and the ways we, as lawyers, can take advantage of technology that could help us even better serve our clients and communities. Weigh the pros and cons While you may have a gut reaction one way or the other, when it comes to texting with clients, take time and review your options before making the best decision for your firm. Find a middle ground and question sources provided by absolutists on either side. Here are some benefits and risks to consider:<table><tr><td>Benefits</td><td>Risks</td></tr><tr><td>Ease of communication</td><td>Need for or risk of constant availability</td></tr><tr><td>Record of communication</td><td>Security pitfalls</td></tr><tr><td>Potential for automation</td><td>Potential for messages to be misunderstoood</td></tr></table>Decide on a case-by-case basis Every legal case comes with unique circumstances, so decide whether to text based on what’s best for each client. For example, perhaps your client works constantly, and you can reach them only via text during the day. If your client is younger and accustomed to communicating through messages, a text may be more efficient and more likely to garner a response. While unthinkable in a law firm, I’ve had clients who rarely checked personal email accounts or did so only when I told them I was sending something. Texting also occurs on our most personal, portable, lockable, and concealable computing device. In some practice areas, such as family law, that could benefit your client. It facilitates client communication while minimizing the risk of interception or viewing by an adverse party. Remember to review methods of communication as part of your standard intake procedure, and make sure your client understands any boundaries you choose to implement. Consider technology options Many lawyers, including myself, are uncomfortable with texting via a personal number. Apps like Corvum, Grasshopper, SendHub, SMS for Legal, and Text Request provide enterprise solutions for texting clients. Several case management programs also offer forms of text message integration via smartphone apps, giving the client a single texting number while, on the law firm side, operating like a shared email inbox that any firm staffer can triage. Remember to back up your texts with clients, and store copies in your client’s file. If you’re in the market for a practice management program, several, such as Clio, integrate with text message vendors or offer text-message-like experiences in their apps. And, if you are using a personal cell phone, programs like iMazing can backup client texts for long-term storage in the file. Secure your mobile device Ensure the safety of both your client’s information and your own by locking your phone with your fingerprint; enabling FaceID; or setting a complex password, passcode, or pattern lock. Set up device location and remote wipe via Apple or Google’s “Find My” service. Avoid engaging in complex legal discussion via text Short messages on complex subjects can lead to miscommunication and misinterpretation. If you can’t say it briefly, consider a phone call or web meeting instead.]]></description><category><![CDATA[journal,molawyers,PracticeManagement]]></category>
<pubDate>Wed, 10 Apr 2024 07:00:00 -0500</pubDate>
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<title>Worried about an OCDC audit?</title>
<link>https://news.mobar.org/worried-about-an-ocdc-audit/</link>
<guid>https://news.mobar.org/worried-about-an-ocdc-audit/</guid><pp:caseid>626832</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[As an investigator with the Office of Chief Disciplinary Counsel, I’ve been asked to share some of my more interesting cases and impart a few words of wisdom on the topic of lawyer trust accounting. ]]></pp:summary><description><![CDATA[<img class="image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/2bf1ca29-9fe5-4bbf-a4ed-1e699560e4ca/500_kellydillon.jpg?x=1712246553578" width="200" alt="Kelly Dillon"> Kelly Dillon is a certified fraud examiner and an investigative examiner for the Missouri Office of Chief Disciplinary Counsel. In her 23 years with OCDC, Kelly has conducted thousands of audits, testified as an expert witness in disciplinary cases involving safekeeping property violations, and provided instruction to lawyers on trust accounting.As an investigator with the Office of Chief Disciplinary Counsel, I’ve been asked to share some of my more interesting cases and impart a few words of wisdom on the topic of lawyer trust accounting. The information here is all based on actual cases, running the gamut from minor accounting mistakes to outright criminal activity. When and why does the OCDC conduct audits?When OCDC receives an insufficient funds notification from the bankThere are many reasons the OCDC might decide to audit a lawyer’s accounts. Most obvious is, of course, an insufficient funds notice on a client trust account. An overdraft is usually due to an accounting error. And while an accounting error on its own may be best remedied through additional education and support to the lawyer, sometimes a quick review reveals bigger problems.That was the case with JM. JM’s overdraft was simply the product of a premature disbursement to a favored client. Rules require a lawyer wait a reasonable period of time after depositing client funds prior to disbursing against them. JM disbursed against uncollected funds; by failing to wait, he used other clients’ money. However, my review of JM’s client trust account revealed a bigger issue. We noticed that JM had been writing checks to his bank with a note in the memo line with the client’s name and/or their medical provider in an exact amount due to the provider. That practice suggested the checks were being converted to cashier’s checks to pay third-party providers. However, when copies of the cashier’s checks were obtained from the bank, they revealed the checks were payable to JM’s creditors instead of the third-party providers. When OCDC gets a client complaint The OCDC may also audit if it receives a complaint or report alleging the lawyer failed to return unearned fees or failed to disburse client or third-party funds. In these instances, the OCDC must determine whether the client funds remained in the client trust account as required by the rule. The OCDC investigators — and lawyers holding client funds — must take into consideration that the client trust account is a pooled account. It contains not only the funds of the client in question, but in most cases, it also contains other clients’ funds. It is the OCDC’s duty to conduct an audit that considers all those clients and to learn whether the balance was sufficient for each client whose funds were to be held in trust. In the case with LH, we found that the lawyer maintained funds in trust for more than one client, but when we looked at all of the clients whose funds should have been held in trust, the account fell short. When statements submitted to the OCDC don’t reconcile with bank records When the OCDC audits lawyer accounts, the lawyer is asked to produce copies of monthly bank statements, cancelled checks, and deposit slips with the items deposited. Those are among the records that Rule 4-1.15 requires lawyers to keep as a routine. When we asked SW for his records, we entered them into a spreadsheet for reconciliation. The statements SW sent did not reconcile. A visit to SW’s office revealed the statements he submitted to OCDC were altered. His altered bank statements excluded payments he was making to himself. SW’s altered statements constituted additional serious violations. Two sets of books? Once the bank records are received, OCDC may request additional required client records such as settlement statements, fee agreements, and others to support deposits and disbursements. We then use those records to reconcile the individual client account ledgers within the pool of trust account funds. In JA’s case, during that reconciliation process, we found that he was not making complete disbursements of client settlement funds and he produced copies of settlement statements. He claimed the undisbursed funds were fees for representing the same clients in additional legal matters, but he had no supporting documentation. Further investigation revealed that JA created two settlement statements for many of his clients. One statement reflected a lesser gross settlement amount than JA actually received on behalf of the client, thus resulting in a lesser amount due to the client. That first statement contained the actual signature of the client. The second statement contained the actual gross settlement amount (which the client was unaware of) and a client signature forged by JA.What’s wrong with mixing personal or operating funds in trust accounts? Client funds must be held separately from lawyers’ business and personal funds. That means that business funds, such as earned fees, must be removed from trust accounts, and client funds should never be in an operating account. Commingling in either account violates Rule 4-1.15(a). It creates a significant risk to client funds because lawyers’ creditors (such as the IRS) can and will collect from any account holding any personal funds. When lawyers don’t separate operating funds from personal accounts, problems and embarrassments can result. If during an audit it is discovered that funds required to be held in trust are being transferred to or directly deposited into another account, the OCDC must also audit the receiving account. Are “non-refundable fees” enforceable? A few lawyers are still depositing flat fees of more than $2,000 to their operating accounts. Even though Missouri Supreme Court Advisory Committee Formal Opinion 128 dates back to 2010,1 we still frequently see lawyers treating larger flat fees as “earned upon receipt.” A few lawyers wrongly believe they may lawfully deposit them to their operating account by describing them as “nonrefundable” in their contracts. Depositing these funds to an operating account or spending them before they are earned can lead to charges of misappropriation. In the case of RJ, the lawyer had a large-volume criminal practice. The lawyer deposited all flat fees, even advanced flat fees, into the operating account. Because RJ considered these advanced fees “earned upon receipt,” he kept no record of when or how the fees were earned. When audited, it was determined that in many cases, RJ had spent the advanced fees prior to earning them, misappropriating client funds. Removing earned fees from the client trust account is an important part of the process. Not only does it keep the lights on and provide a paycheck, but it prevents the lawyer from commingling in the client trust account. A common and very serious mistake we see when a lawyer withdraws earned fees from the client trust account is the removal of fees with no basis in an actual accounting. Like others, RJ routinely transferred funds to himself when he needed the income. Too often, lawyers base the withdrawals on an “estimation” of fees earned, believing they are taking less than what was earned. In reality, they often take more, resulting in the misappropriation of client funds. Fees might be earned on an hourly basis or by benchmark of the case, but no matter the method or agreement with the client, each withdrawal from the client trust account must come with a ledger accounting showing the withdrawal, the associated client, and purpose. A general journal of transactions and ledgers for each client are requirements of the rule. They are also essential to an effective reconciliation process.What do I do if I’m audited? Respond promptly and honestly. I’ve seen many lawyers incur additional rule violations for failing to cooperate with an audit. Ignoring a request for records will not make it go away; it will simply lead to issuance of investigative subpoenas to the bank and/or the lawyer to complete the audit. The OCDC will follow up when lawyers ignore requests for records. Honesty is the best policy during an audit. If records are requested that the lawyer is not maintaining, it’s best to advise the auditor. With that information, we can work together to gather what is necessary to reconcile the account. In my experience, lawyers who try to create documents after the fact almost never reconcile to the bank account records. Also, bank records leave an absolute trail of where the money went. Lawyers who try to rewrite history eventually face the consequences when records reveal the truth.In closing While I could go on and on with cautionary tales of trust accounting breakdowns, I’m told that too long of an article may cause drowsiness, fatigue, and, in rare cases, anxiety. For more detailed information, I encourage every lawyer to visit the <a href="https://mochiefcounsel.org/" target="_blank">OCDC </a>and <a href="https://mo-legal-ethics.org/" target="_blank">Missouri Legal Ethics Counsel</a> websites and study <a href="https://www.courts.mo.gov/courts/clerkhandbooksp2rulesonly.nsf/c0c6ffa99df4993f86256ba50057dcb8/14649d79be0d211b8625769d0079035c?OpenDocument" target="_blank">Missouri Supreme Court Rule 4-1.15</a>. Also, consider reaching out for an in-person CLE for your group or organization.Endnotes 1 Missouri Supreme Court Advisory Committee Formal Opinion 128 was amended in 2018 to allow advance fees under $2,000 that are not payments towards a larger flat fee into an operating account.]]></description><category><![CDATA[journal,molawyers,Ethics]]></category>
<pubDate>Tue, 09 Apr 2024 07:00:00 -0500</pubDate>
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<title>Executive summary: Springing forward</title>
<link>https://news.mobar.org/executive-summary-springing-forward/</link>
<guid>https://news.mobar.org/executive-summary-springing-forward/</guid><pp:caseid>626829</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[During a recent visit to the Boone County Bar, I was excited to share about the many things The Missouri Bar offers you, its members, to even better serve your clients and communities. ]]></pp:summary><description><![CDATA[<img class="image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journalmischabufordepps.jpg?x=1712245806423" width="200" alt="Journal Mischa Buford Epps"> Mischa Buford Epps is executive director of The Missouri Bar.Our newly released <a href="https://mobar.org/site/About/Our_Guidelines_Reports/site/content/About/Our_Guidelines_Reports.aspx#annual" target="_blank">2023 Annual Report</a> highlights the work of volunteer leaders, members, and bar staff to better the lives of all Missourians by improving the law, the legal profession, and the administration of justice. I encourage you to take a few minutes to scroll through the 2023 Annual Report at MoBar.org to review all our offerings and efforts. One such effort is the work of our government relations department, which helps carry out the bar’s goal of ensuring Missouri laws are uniform, clear, and precise, and our justice system, which interprets and applies them, is supported with adequate resources. Missouri Bar officers recently visited with legislators at the capitol, sharing about the many public resources the bar provides – and how those resources can serve their constituents. We also had the opportunity to hear Supreme Court of Missouri Chief Justice Mary R. Russell deliver her 2024 State of the Judiciary address to a joint legislative session. (Read her speech <a href="https://news.mobar.org/chief-justice-russell-addresses-legislators/" target="_blank">here</a>.) While this was only one day, our government relations team continues to keep up with the many happenings at the bustling capitol. From tracking bills of interest to educating elected officials about the justice system and legal profession, the department works hard to keep you informed of state law changes. In 2023, staff reviewed 2,330 bills and resolutions. Throughout the Annual Report, you’ll also see the impact of your work through Missouri Bar committees and sections. These groups provide an opportunity to collaborate with like-minded lawyers, learn through continuing legal education, build relationships, and stay abreast of matters impacting relevant areas of law. With Spring Committee Meetings taking place April 29-May 3, I would be remiss not to encourage you to join one or more that tie to your practice or interests. Many of these virtual committee gatherings offer free CLE in furtherance of our goal of providing CLE to support and improve professionalism, competence, and ethics. You can browse all the open committees on our website and collaborate with fellow members on <a href="https://connect.mobar.org/home" target="_blank">connect.MOBAR</a>. Spring also brings Well-Being Week in Law, taking place May 6-10. This national observation week aims to raise awareness about mental health and encourage action and innovation across our legal profession to improve well-being. Our Standing Committee on Well-Being in the Profession is coordinating with the Missouri Lawyers’ Assistance Program to host programming throughout the week. This includes helpful resources and no-cost CLE. As we all know, our health impacts our ability to do our jobs, and I encourage you to invest in your own well-being to thrive and be your best for your clients, colleagues, organizations, families, and communities. As always, if you need support for a personal concern, MOLAP is here to help you. The above are just a few of the exciting things we’re up to here at your Missouri Bar this spring. We hope you will join us. If you want to learn even more, please reach out about having a board governor or officer visit your local organization or community.]]></description><category><![CDATA[journal,molawyers,ExecutiveSummary]]></category>
<pubDate>Mon, 08 Apr 2024 08:00:00 -0500</pubDate>
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<title>President's page: The widest influencers</title>
<link>https://news.mobar.org/presidents-page-the-widest-influencers/</link>
<guid>https://news.mobar.org/presidents-page-the-widest-influencers/</guid><pp:caseid>626827</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[Faithful readers now recognize this theme – an aspiration borrowed from my college sorority yet equally apt for The Missouri Bar: to exert the widest influence for good.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/8658c6d6-ba15-4c10-8b95-79de12c06fde/500_meganphillips-2023.jpg?x=1712244516071" alt="Megan Phillips-2023" width="200"> Megan Phillips is the 2023-24 Missouri Bar president.In an effort to maximize cross-generational synergy toward this ideal, I recently crashed a meeting of our Young Lawyers’ Section Council – a truly impressive group who will  lead the bar into the future.<img class="image_resized image-style-align-right" style="aspect-ratio:290/auto;width:290px;" src="https://content.presspage.com/uploads/2361/9ba0df57-492c-4c13-99e2-a6ee353d3b1c/800_ylscommunityservicemarch2024.png?x=1712245098701" alt="YLS community service March 2024" width="290" height="auto">The mission of YLS is to enhance the professional growth and public service of Missouri lawyers age 36 or under or in their first five years of practice. YLS organizes and/or sponsors, often with other bar groups, numerous public service projects, CLEs, and networking experiences for young and newly admitted lawyers across the state. Just this past year, the YLS Council:<ul><li>Completed service projects to benefit the community at each of its five meeting locations;</li><li>Organized free professional headshot photos and the wildly popular puppy playtime for stress relief at Annual Meeting in Kansas City; </li><li>Increased CLE attendance by 200% during the monthly “YLS Accelerator Series” CLE; </li><li>Hosted “The Milly Project,” an award-winning production about an enslaved woman who litigated her way to freedom before the Civil War, which inspired 300 attendees throughout the state; </li><li>Provided programming to students at Missouri’s four law schools; </li><li>Sent 450 welcome boxes, which included handwritten notes of congratulation, to new admittees; and </li><li>Coordinated with the bar’s citizenship education department to send volunteer lawyers into 15 schools to talk about the Constitution – perhaps my personal favorite.</li></ul>In conjunction with the recent YLS Council meeting I attended in St. Louis, YLS leadership spent a day volunteering at Southside Early Childhood Center, answered citizens’ questions through the online pro bono platform Missouri.FreeLegalAnswers.org, and hosted a happy hour for area members.In addition to their public impact throughout the state, members of the council contribute considerable time and stellar leadership skills in service to The Missouri Bar. During the council’s formal meeting (on a Saturday morning!), I learned about myriad service and social events in the works to uplift and unite young lawyers in this new era of remote practice, and I witnessed a deeply thoughtful and respectful debate resolved through collaboration and compromise. I left the meeting full of hope. Giddy, even. The future of our bar is bright, and our influence for good continues to expand.New and young lawyers have the potential and shared ethos to change the profession for the better. Their career ambitions surpass professional or financial gains; rather, they see success as holistic and collective. They set boundaries to protect their personal lives and their own well-being. Gender parity is a given. They think beyond visible diversity and strive for meaningful inclusion and belonging. They expect these things. And they should. Missouri’s young lawyers and leaders are invaluable to the bar as both a focus group and a pipeline. They will catapult us forward as a profession and reinforce public confidence through their good works. They promise to be the widest influencers.Photo caption: YLS members help staff at the Southside Early Childhood Center in St. Louis on Feb. 23 build furniture, sanitize classroom equipment and chairs, and clean strollers. Photo taken by Erica L. Frank]]></description><category><![CDATA[journal,molawyers,PresidentsPage,MOBarYLS]]></category>
<pubDate>Mon, 08 Apr 2024 07:00:00 -0500</pubDate>
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<title>Meet #MOLawyers: Madeline Johnson</title>
<link>https://news.mobar.org/meet-molawyers-madeline-johnson/</link>
<guid>https://news.mobar.org/meet-molawyers-madeline-johnson/</guid><pp:caseid>626715</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/f98359e1-7af1-4714-bf59-58cce88514f3/500_madelinejohnson.jpg?x=1712174805781" alt="Madeline Johnson" width="200"> Madeline Johnson, alongside Alex Pearson, co-founded Missouri Kansas Queer Law. A Kansas City native, Johnson graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 2005.  Why did you found Missouri Kansas Queer Law? We wanted to serve and advocate for our community directly as we felt our LGBTQ+ family was underserved and lacking a law firm dedicated to our community’s specific needs. As members of the LGBTQ+ community ourselves, we feel uniquely positioned in understanding the divergent issues our clients face in all types of legal matters. As a lawyer, what are you most passionate about? Advocating for the equal protection of the laws for gender non-conforming folks. What advice would you give to lawyers who want to start a solo or small firm? Dream big, lean into your dreams, and trust your authentic self to lead you in the right direction. When you do, you will be very pleasantly surprised. What are three tips you would give to new or young lawyers? 1. Never stop learning; the moment you do you begin to stagnate.  2. Take time for yourself and your family – a balanced life is essential.  3. Don’t overlook or underestimate the amazing clients who come into your life; they have some amazing stories!  And I will add a fourth: Have a sense of humor about yourself and what you are doing (avoid taking yourself too seriously). If you could eliminate one food so no one could eat it ever again, what would you destroy? Celery! Answers have been edited for brevity and clarity. Know a Missouri lawyer you think should be featured in a future “Meet #MOLawyers”? Email <a href="mailto:nhillen@mobar.org" target="_blank">nhillen@mobar.org</a> your suggestion.]]></description><category><![CDATA[molawyers,journal]]></category>
<pubDate>Fri, 05 Apr 2024 07:00:00 -0500</pubDate>
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<title>In memoriam: March-April 2024</title>
<link>https://news.mobar.org/in-memoriam-march-april-2024/</link>
<guid>https://news.mobar.org/in-memoriam-march-april-2024/</guid><pp:caseid>626713</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[How to submit an obituaryObituaries are submitted to The Missouri Bar through a variety of mechanisms. To facilitate this process, the bar created a form that may be accessed via <a href="https://mobar.wufoo.com/forms/in-memoriam/" target="_blank">MoBar.wufoo.com/forms/in-memoriam/</a>. We will not print the obituary unless a copy of the death certificate or obituary is submitted.]]></pp:summary><description><![CDATA[Kermit “Butch” Almstedt, age 78, of Weeki Wachee, FL, on June 17, 2023. Almstedt was a trial attorney for the U.S. Department of Justice Antitrust Division; assistant attorney general and chief counsel of the Missouri Antitrust Division; legislative assistant and trade counsel to U.S. Sen. John C. Danforth; and co-chair of the International Trade Litigation Group at O’Melveny & Myers, LLP. He graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1970. John W. Briscoe, age 81, of New London, on Jan. 1, 2024. Briscoe was prosecuting attorney for Ralls County and operated a law office in New London. Briscoe is a past president of The Missouri Bar. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1966. Adam M. Burkemper, age 48, of Troy, on June 20, 2023. Burkemper was a partner at The Burkemper Law Firm for over 20 years before taking a position at Legal Services of Eastern Missouri. He graduated from the Gonzaga University School of Law and was admitted to The Missouri Bar in 2002. Thomas Bennett Burkemper, age 83, of Troy, on Jan. 11, 2024. Burkemper founded The Burkemper Law Firm and practiced law for 59 years. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 1965. Ross A. Bush, age 51, of Vienna, on Feb. 5, 2024. Bush was city attorney for Vienna and operated a private practice there. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 2009. Roger Wayne Calton, age 73, of Laguna Niguel, CA, on Nov. 26, 2023. Calton was admitted to The Missouri Bar in 1975. Bruce Feldacker, age 83, of Durham, NC, on Feb. 15, 2024. Feldacker served in the U.S. Army’s Judge Advocate General’s Corps before practicing labor and employment law in St. Louis. He also taught courses at Saint Louis University School of Law, George Meany Center for Labor Studies, Indiana University, and Cornell University. He earned his juris doctor from the University of Chicago School of Law and master of laws from Georgetown University Law Center. John Kimball Greider Sr., age 77, of Creve Coeur, on Dec. 14, 2023. Greider practiced law in the St. Louis area for over 40 years. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1972. Greider served in the U.S. Army. Thomas M. Gunn, age 80, of Clayton, on Jan. 24, 2024. Gunn worked for the McDonnell Douglas Corporation, serving as vice president of marketing; president of McDonnell Douglas Helicopter Company; and president of McDonnell Douglas International. He later ran The Gunn Group consulting firm. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 1967. James Kenyon Heitman, age 32, of St. Louis, on May 3, 2023. Heitman was assistant circuit attorney for the City of St. Louis. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 2018.Rhonnie Hemphill, age 71, of O’Fallon, on June 28, 2023. Hemphill operated Hemphill Law Office, focusing on criminal defense and personal injury. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 2010. Lynn C. Hoover, age 86, of Leawood, KS, on Feb. 15, 2024. Hoover worked at United Missouri Bank in Kansas City; Morris, Larsen, King, and Stamper; and Stinson, Morrison, and Hecker. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1962. Eugene Oliver Howard Jr., age 69, of St. Louis, on Dec. 18, 2023. Howard was a public defender for 30 years after graduating from the Saint Louis University School of Law and being admitted to The Missouri Bar in 1993. Hon. John Robert Jack, age 72, of Independence, on May 11, 2023. Jack was admitted to The Missouri Bar in 1977. Lawrence Albert Knecht, age 72, of Kansas City, on Nov. 2, 2023. Knecht was admitted to The Missouri Bar in 1977. Neil John Maune, age 62, of St. Louis, on July 16, 2023. Maune was founder and managing partner at Maune Raichle Hartley French & Mudd, LLC. He graduated from the University of Notre Dame School of Law and was admitted to The Missouri Bar in 1989. David McAllister, age 66, of Jefferson City, on June 21, 2023. McAllister was deputy counsel for the Missouri Department of Conservation. Prior to that, he held several positions including city attorney, prosecuting attorney, and assistant attorney general. He was also a frequent author and reviewer of MoBarCLE publications. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1984. Dwayne Wright McConnell, age 74, of Anchorage, AK, on March 28, 2023. McConnell was admitted to The Missouri Bar in 1975. James Alan Miller, age 70, of Springfield, on March 6, 2023. Miller ran his law practice in Springfield. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1977. Neal Eugene Millert, age 86, of Kansas City, on Dec. 28, 2023. Millert was senior partner at Houts, James, Hogsett, McCanse & Welte. He graduated from Boston College Law School and was admitted to The Missouri Bar in 1962. Daniel V. O’Brien, age 93, of St. Louis, on Jan. 24, 2024. O’Brien was a lawyer with the U.S. Air Force; an assistant prosecuting attorney and prosecuting attorney for St. Louis County; and a private practice criminal defense lawyer. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 1954. Dennis Edward O’Connell, age 79, of St. Louis, on Jan. 12, 2024. O’Connell was an associate, partner, and senior counselor at Bryan Cave Leighton Paisner for 46 years. He graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 1969. O’Connell served in the Judge Advocate General’s Corps for the U.S. Army.Hon. John Russell O’Malley, age 75, of Kansas City, on Oct. 2, 2023. O’Malley served as a judge for the Circuit Court of Jackson County for 20 years. He also served in the U.S. Army Reserve Judge Advocate General’s Corps. O’Malley graduated from the Saint Louis University School of Law and was admitted to The Missouri Bar in 1973. John Joseph Phillips, age 96, of Odessa, on Jan. 18, 2024. He graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1962. Phillips practiced law in the Independence area for over 50 years and served in the U.S. Navy. Walter Ray Phillips, age 91, of Elsberry, on Nov. 8, 2023. Phillips served in the U.S. military and was admitted to The Missouri Bar in 2001. Alan Edward Popkin, age 89, of St. Louis, on Jan. 20, 2024. Popkin was a lawyer with Husch Blackwell. He graduated from the Washington University School of Law and was admitted to The Missouri Bar in 1963. Ralph Elwyn Pratt, age 92, of Independence, on April 28, 2023. He graduated from the University of Kansas School of Law and was admitted to The Missouri Bar in 1959. Pratt served in the U.S. Marines. Karen Aline “KK” Read, age 51, of Kansas City, on Feb. 1, 2024. Read worked at Shook, Hardy & Bacon; the Missouri Attorney General’s office; and Baker Sterchi, Cowden & Rice. She graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1998. Norma “Naomi” Leslie Reynolds, age 58, of Overland Park, KS, on Dec. 22, 2023. Reynolds graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1993.John West Rourke, age 58, of Town and Country, on June 10, 2023. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1990. William Garrett Stack, age 90, of Annandale, VA, on Nov. 27, 2023. Stack was a trial lawyer and associate general counsel for the National Labor Relations Board. He graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1965. Stack served in the U.S. Army. Michael James Stapp, age 67, of Shawnee, KS, on Jan. 15, 2024. Stapp worked for 40 years at Blake & Uhlig, focusing on labor law, and was general counsel of the International Brotherhood of Boilermakers. He graduated from the University of Kansas School of Law and was admitted to The Missouri Bar in 1990. Buell F. Weathers, age 99, of Waco, TX, on Dec. 25, 2023. Weathers practiced with the Mann law firm in Springfield until retiring in 1997. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1950. Weathers served in the U.S. Army. David L. West, age 86, of Cary, NC, on Aug. 10, 2023. West was a lawyer at Blackwell, Sanders, Matheny, Weary and Lombardi. He graduated from Harvard Law School and was admitted to The Missouri Bar in 1962. West served in the U.S. military. Candis Love Young Lochmann, age 64, of Kansas City, on June 22, 2023. She worked in private practice for 37 years after graduating from the University of Missouri School of Law and being admitted to The Missouri Bar in 1984.]]></description><category><![CDATA[journal,molawyers,InMemoriam]]></category>
<pubDate>Thu, 04 Apr 2024 06:00:00 -0500</pubDate>
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<title>Chief Justice Russell addresses legislators</title>
<link>https://news.mobar.org/chief-justice-russell-addresses-legislators/</link>
<guid>https://news.mobar.org/chief-justice-russell-addresses-legislators/</guid><pp:caseid>626710</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[Hon. Mary R. Russell, chief justice of the Supreme Court of Missouri, delivered the State of the Judiciary address Feb. 7 during a joint session of the Missouri General Assembly in Jefferson City.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="aspect-ratio:530/auto;width:530px;" src="https://content.presspage.com/uploads/2361/90a89f18-7966-4fd3-9e50-0d480e258426/1920_cjrussellsotj-020724-5.jpg?x=1712173324432" alt="Photo 1" width="530" height="auto">Lt. Gov. Kehoe, Speaker Plocher, President Pro Tem Rowden, Auditor Fitzpatrick, members of the General Assembly, my colleagues in the judiciary, and guests: I am grateful to be here this morning to present to you this 50th State of the Judiciary. I last spoke to this body a decade ago, but I’m no stranger to the legislature. I worked for my local legislators in both chambers during college and law school, and over the years, I have made many legislative friends. Having those friendships – past, present, and future – fills me with gratitude. My late husband represented northwest Missouri here in the House – he sat right there! Although Jim is only with us in spirit now, other members of my family are here this morning – please welcome them as they stand! We have three of our adorable grandchildren here – Avery, age 11; Evan, age 7; and Isabelle, who just turned 4. Claire, who is almost 2, is missing today – she couldn’t get paroled from daycare. The grandkids even brought their parents, Heather and Allen, and Laura and Tom. I am thrilled to have you all here today, and I love you and appreciate all your support for my public service habit!My family consciously practices gratitude. We try to teach our youngest to have an “attitude of gratitude.” At Sunday dinners at my house, we go around the table and we say what we are grateful for. Rules are simple: Don’t repeat anything, and don’t eat until everyone has spoken. Whether at home or at work, we all have many reasons to express gratitude. Gratitude for those in the judiciaryTo start, I have deep gratitude for my second family, within the judiciary. For more than two decades, I have worked with many fabulous judges – including my “housemates” across the street. It’s worth noting again what the governor mentioned two weeks ago: For the first time in the history of our great state, we have a majority of female judges on our Court! Missouri’s high Court is now one of only 15 in the nation with a female majority. This is something I simply never imagined happening. I truly hope this historic achievement inspires Missouri’s children – no matter their background – to believe that they, too, can become a state Supreme Court judge if they want. Our newest colleagues, elevated last fall from the court of appeals, are Judge Kelly Broniec, of Montgomery City, and Judge Ginger Gooch, of Springfield – who, by the way, is the first Supreme Court judge from southwest Missouri in more than two decades! We are all grateful for Gov. Parson’s appointments under The Missouri Plan and for his recognition that, sometimes, the best man for the job is actually a woman! Although I currently serve as the “face” of the judiciary, the hard work is performed in your local courthouses, by nearly 3,600 clerks, bailiffs, court reporters, jury supervisors, juvenile office staff, and others, plus more than 400 judges and commissioners. All of us should have immense gratitude for these frontline heroes and their daily work behind the scenes for your constituents. Thanks to them, we are problem solvers as we decide hundreds of thousands of legal disputes each year. Because of their hard work, I am proud to say the state of Missouri’s judiciary is strong. During my two-year term as chief justice, I am personally visiting all 46 judicial circuits to witness the important work our trial courts do; I have been to 14 so far! My goal on this “gratitude tour” is to meet local court staff, shake their hands, and express how much we appreciate them. I also listen carefully to their ideas about how we could help them better serve their local communities. I have been inviting you to tour your local courthouses with me. I am grateful so many of you have joined me to meet your local frontline heroes and learn more about their work. I look forward to seeing more of you on one of my next 32 visits. <img class="image_resized image-style-align-right" style="aspect-ratio:488/auto;width:488px;" src="https://content.presspage.com/uploads/2361/c1d9126e-5cb7-47af-bf5b-2037fb925e6e/800_cjrussellsotj-020724-1.jpg?x=1712173427688" alt="CJ Russell SOTJ-020724-1" width="488" height="auto">Gratitude for legislative support I also enjoy opportunities like this, when we come together from separate branches of government and work as constitutional partners to improve the administration of justice for all Missourians.Judicial Privacy ActJudges and prosecutors across Missouri – and their families – are grateful for your action last session to pass the Judicial Privacy Act and protect us from violence and threats of violence as we do our jobs. Expungement assistance You are aware of the challenges presented by the passage of Amendment 3. Your constituents, working in circuit clerk offices statewide, are grateful for the financial assistance you have provided to help them do the highly detailed expungement work the constitution now requires. We are making significant strides. As of this week, our courts have reviewed more than 245,000 cases, of which they have expunged nearly 109,000. Plus, they’ve done all this while still processing all your constituents’ other cases. A number of circuit clerks who were meeting in Jefferson City today are with us now. Please join me in giving all these dedicated court staff – and all those working in your local courthouses – an incredibly well-deserved round of applause! Court technology We also want to express our gratitude for your ongoing support of our statewide court automation system. We believe Missouri was the first state to have such a system. It now includes all of our municipal courts, too – a major milestone that we’ve just completed! Technology allows us to continue delivering the customer service your constituents expect and deserve. Our most popular service, Case.net, provides web-based access to more than 27 million public case records ... and counting. And now, people can see public case documents filed on or after July 1 remotely, from the convenience of a smart phone or home computer. Since remote public access started, the average number of hits on Case.net has reached nearly 5.2 million per day, with an average of nearly 7,000 people a month signing up to track cases through Case.net. Gratitude for legislative support We are also grateful for your consideration this session of bills to increase juror compensation – a need I have heard expressed consistently in my local courthouse visits. The right to a jury of your peers has always been a part of our nation’s fundamental values. But many of our courts struggle to have enough jurors. To comply with jury service, our citizens must take time off work and make other arrangements to care for their families. In turn, they may receive only the statutory minimum of just $6 per day and seven cents per mile for traveling from their homes to the courthouse and back. These amounts have not been updated since at least 1989. Judges are embarrassed to tell jurors these rates, and one clerk described the amounts as an insult to those who show up for jury service. We are grateful for your consideration of how best to compensate your local citizens for performing this important constitutional duty. Treatment court programs We are also grateful for your ongoing support of treatment courts. After three decades, we have thousands of successful treatment court graduates who are testaments to how well these programs work. If you haven’t already, please attend a local treatment court graduation. But bring a tissue, as every ceremony abounds with inspiring stories of lives restored and families healed. Here is one example: Loretta Huff came from a broken home. Just as Johnny Lee once sang, she went “lookin’ for love in all the wrong places.” She ended up incarcerated five times for a variety of convictions. She was in a dark place, believing there was no room in society for someone with her criminal history. But then she was accepted into Boone County’s treatment court. She credits this with saving her life. Upon graduation, she began helping others. She now works as a counselor and helps lead a support group for treatment court alumni in Callaway County. She has gratitude for her treatment court experience and is proud of her new pattern of making good choices. Loretta is here – let’s give her our gratitude for her success and for paying it forward!We are grateful you are considering adding mental health courts to the list of approved treatment courts, expanding our ability to serve even more people. <img class="image_resized image-style-align-left" style="aspect-ratio:440/auto;width:440px;" src="https://content.presspage.com/uploads/2361/a48cd5f2-d03e-4994-af5f-f145fd6abf27/800_cjrussellsotj-020724-6.jpg?x=1712173496721" alt="CJ Russell SOTJ-020724-6" width="440" height="auto">Impact of mental health issues on our courts Speaking of mental health, these issues – either alone or in tandem with substance abuse – increasingly impact our courts on a daily basis in all types of cases. These problems compound in our communities, taking a toll on our law enforcement officers, our jails, our hospitals, and our nursing homes as everyone struggles for solutions. Our jails have become the largest mental health facilities in our counties. But that is not how jails are designed, nor how their staff are trained. Jails should be used in the short term to detain people accused of crimes or found guilty of minor crimes. Concrete cell blocks are not conducive for treating mental health or addiction issues. Individuals with mental health issues pose a danger to themselves and others in jail. One judge in outstate Missouri recently told me, despite the court ordering a much-needed mental health competency evaluation, the inmate had to wait eight months – creating difficult, if not impossible, conditions for deputies trying to keep control in the jail. Unfortunately, I hear similar stories all over our state. The longer inmates with mental health problems remain detained – without treatment or without being tried for a crime, let alone convicted – the worse they get. So, what do we do about it? We work together. Growing up on a farm, I learned that silos are great for holding grain. But government cannot operate in silos. We cannot afford to say, “not our problem,” and kick the proverbial can down the road. Because these are not cans – they are our loved ones, our neighbors, all the people who make up our local communities. Instead, we must work together – across all branches of government, at the state and local levels, and with the nonprofit and private sectors. Only by sharing our best ideas and pooling our limited resources can we make a positive difference. All areas of the state are in dire need of mental health services for defendants. Together, we can build networks to help keep those in need of mental health services out of our courts and jails so they can live safely and successfully in all our local communities. Simply put: Justice cannot be by geography. Pretrial services programs We owe our gratitude to court and community leaders paving the way with new programs to help defendants with mental health issues. To address mental health and other needs at the earliest opportunity, pretrial services programs are proving efficient and effective. Like treatment courts, these programs are community-driven, with judges, prosecutors, public defenders, law enforcement officers, and mental health professionals all collaborating to get offenders the help they need. Consider Montgomery County – one of only five pilot sites in the nation, selected to improve pretrial diversion for defendants with mental health needs. I had a chance to visit with its pretrial services staff a few months ago. Although in its early stages, the program shows great promise. It has also been received well by victims, who are pleased to learn there are local options for those who don’t need incarceration but do need help with mental health issues. Other defendants who qualify for pretrial release need different types of structure and support. Resources for these defendants can also include basic assistance such as locating a place to live, getting a GED, finding a job, applying for a driver’s license, and even transportation. This support helped one Montgomery County man turn his life around since last summer. At the time of his arrest, with a barely livable home, he had no regular mental health assistance, abused alcohol, and was surrounded by criminal activity. Then he was released into the prosecutor’s mental health diversion program. Now, six months later, he is sober, receives regular mental health treatment, has severed his relationships with criminal associates, and lives in a structurally safe home. He credits pretrial services with kick-starting him onto a pathway to success.We know the success of these programs can be far-reaching. Consider Sheila Santillan, one of Jasper County’s earliest pretrial services program successes. She spent her teens bouncing around foster homes. As a young adult, she became entangled with drugs, got clean, but then had trouble finding stable housing. She took care of her father as he battled cancer, but after he died, she slipped again and was arrested for felony drug possession. Thanks to the pretrial services she received, Sheila was able to keep her job at a local restaurant, checking in with her pretrial release officer twice a week. Ultimately, she pleaded guilty, received a suspended execution of sentence, and performed community service. In the six years since, she has not returned to our criminal justice system and is happy to have moved on with her life. Sheila, I know you are watching online; please hear our applause showing how proud we are of your accomplishments!It is our courts – through your local judges and court staff – who are keeping people like Sheila out of needless incarceration, instead making sure they receive life-changing treatment. We owe our heartfelt gratitude to these court heroes for protecting our communities and helping defendants like Sheila and so many others live up to their potential. Members of our Jasper and Montgomery County pretrial services teams are here today; please join me in showing them our gratitude for the investment they are making in the lives of our fellow Missourians! But unfortunately, not every county has a pretrial services team. Regardless of geography, defendants everywhere deserve the same opportunities. We are grateful for your consideration of our request to establish a statewide pretrial services program. Juvenile detention There is one final area in which we really need your partnership. Unfortunately, many juveniles suffer from mental health issues, too. During my visits to your districts, I have heard a lot about the need for increased mental health and security services in our juvenile detention facilities. These facilities are housing more, and older, youth. There is a lack of available beds for juvenile offenders who need to be detained, especially outstate. Older, more streetwise youth are now being housed with younger juveniles, who I fear may not be learning good things from their older peers. <img class="image-style-align-right image_resized" style="aspect-ratio:448/auto;width:448px;" src="https://content.presspage.com/uploads/2361/245e9ba3-eb24-4e05-a411-8379724ce040/800_cjrussellsotj-020724-3.jpg?x=1712173704184" width="448" alt="CJ Russell SOTJ-020724-3" height="auto">In addition, more youth are being certified to stand trial as adults. This is due to the seriousness of their alleged offenses.And more of these youth are remaining in secure juvenile facilities until their cases in adult courts are final. Having more high-risk, high-need youth staying longer in detention impacts the overall safety, security, and rehabilitative focus of our entire juvenile justice system. I admire the dedication and fortitude of all your local juvenile office staff, detention personnel, and judges who serve these youth  and families under increasingly difficult circumstances. We are grateful for your consideration of our budget request to help us better serve youth in detention. Conclusion In conclusion, we have many challenging issues facing us, but I am grateful for the opportunity to work with you in tackling them. I am confident, working together as constitutional partners, we can succeed. Every session brings a unique blend of stress, challenges, and opportunities. I know how hard it is to leave your loved ones behind, week in and week out, to come here, plowing through thousands of bills, as you set out to do the people’s business. And I know you, like me, are grateful for our families who support us in our public service. The public may identify us by “fancy titles,” like representative or senator or judge. But the titles that our loved ones give us are far more dear. My heart just melts when my grandkids call me “Mimi.” Ultimately, you and I all owe a debt of gratitude to the people of our great state of Missouri for entrusting us to be their public servants. I imagine our younger selves never dreamed of such incredible opportunities or such tremendous responsibilities. I am grateful for our time together this morning. Please take care of yourselves this session. It is stressful, and easy to dwell on conflicts and negativity. So, I encourage you – just as I encourage my family at Sunday dinners – to focus on gratitude. God bless you, and God bless this great state of Missouri, the home of our Kansas City Chiefs!!!Photo captions1 Chief Justice Mary R. Russell presents the State of the Judiciary address on Feb. 7 to the Missouri General Assembly. Photo courtesy of Tim Bommel, Missouri House of Representatives2 Chief Justice Mary R. Russell shakes hands with Missouri legislators and guests during the State of the Judiciary address on Feb. 7. Photo courtesy of Tim Bommel, Missouri House of Representatives3 Missouri legislators and guests listen as Chief Justice Mary R. Russell presents the State of the Judiciary address on Feb. 7 to the Missouri General Assembly. Photo courtesy of Tim Bommel, Missouri House of Representatives4  Chief Justice Mary R. Russell’s family stands to be recognized during the State of the Judiciary. Photo courtesy of Tim Bommel, Missouri House of Representatives]]></description><category><![CDATA[journal,molawyers,SCOMO,YourMOLaw,GovernmentRelations]]></category>
<pubDate>Wed, 03 Apr 2024 12:00:00 -0500</pubDate>
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<title>Sovereign immunity caps do not apply to motor vehicle negligence claims against individual government employee defendants</title>
<link>https://news.mobar.org/sovereign-immunity-caps-do-not-apply-to-motor-vehicle-negligence-claims-against-individual-government-employee-defendants/</link>
<guid>https://news.mobar.org/sovereign-immunity-caps-do-not-apply-to-motor-vehicle-negligence-claims-against-individual-government-employee-defendants/</guid><pp:caseid>626702</pp:caseid><pp:subtitle>Vol. 80, No. 2 / March-April 2024</pp:subtitle><pp:summary><![CDATA[There can be any number of challenges to putting together a successful case of automobile negligence on behalf of an injured plaintiff.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journalscotttempleton.jpg?x=1712169162372" alt="Journal Scott Templeton" width="200"> Scott Templeton is a Kirksville lawyer and an assistant professor of business administration at Truman State University. He has a bachelor of business administration from Iowa State University and a juris doctor from the University of Missouri School of Law.When the defendant is a government entity or government employee, additional challenges in the form of claims of governmental immunity can be expected. The Supreme Court of Missouri has described the applicability of and interplay between the different immunity theories as “muddied” and “murky,” and one commentator described the need to “demystify” this area of the law.1 Confusion may remain, but there should no longer be any dispute that sovereign immunity caps do not apply to claims based upon motor vehicle negligence against individual government defendants. Governmental immunity theories The three primary theories of governmental immunity in Missouri are: 1) sovereign immunity; 2) official immunity; and 3) the public duty doctrine.2 It is important to recognize that sovereign immunity is exclusively applicable to government entities while the official immunity and public duty doctrines are exclusively applicable to individual government defendants sued in their individual capacities.3 Sovereign immunity is a judicial doctrine which precludes a suit against governmental entities without their consent on the ancient concept that the “king can do no wrong.”4 The doctrine originated in England and became applicable in Missouri when, upon its establishment, Missouri adopted the English common law.5 The Supreme Court of Missouri did away with the doctrine in Jones v. State Highway Commission after considering six “justifications” for its continued application and rejecting them as being “illogical and unconvincing and not compelled by constitutional mandate.”6 The legislature quickly responded by reinstating a modified form of sovereign immunity with the enactment of Mo. Rev. Stat. § 537.600 (1977) which restored such sovereign immunity as existed at common law as of the date of the Jones decision, with exceptions for “[i]njuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment.”7 Official immunity protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during their official duties for the performance of discretionary acts if there is no showing of malice.8 The public duty doctrine provides that there can be no cause of action against a government employee for injuries sustained because of an alleged breach of duty to the community as a whole.9 Government employees driving in routine, non-emergency, nondiscretionary situations are not entitled to official immunity or to the protection afforded by the public duty doctrine.10 Official immunity protects government employees from liability from their discretionary, as opposed to ministerial, acts.11 Simply failing to abide by traffic rules and regulations in a non-emergency is not a discretionary act that triggers official immunity.12 Similarly, a government employee’s duty to operate a motor vehicle with the highest degree of care and to obey traffic rules and regulations is not a duty owed to the public at large to justify application of the public duty doctrine. 13 Due to the statutory waiver of sovereign immunity, causes of actions based upon negligence in the operation of a motor vehicle can also be maintained against government entities, but the waiver of sovereign immunity is subject to statutory caps.14 When the legislature reinstated sovereign immunity with the waiver for automobile accident claims, it provided a per-person and per-accident statutory cap.15 The per-person cap was originally $100,000 but raised to $300,000 with increases or decreases based upon an inflationary index.16 Arguments have repeatedly been made and rejected that these caps apply to claims against individual defendants, perhaps stemming from confusion related to the different immunity theories. Sovereign immunity caps do not transfer to individual government defendants The issue was first addressed by the Supreme Court of Missouri in State ex rel. Trimble v. Ryan17 where the plaintiff filed a negligence action against the Bi-State Development Agency and the driver of a Bi-State bus. The defendant driver claimed the sovereign immunity statutory caps were applicable to him.18 The opinion doesn’t supply any legal support for or reasoning behind that contention. The Court held that official immunity did not apply given that the driver was performing the ministerial act of navigating a left turn and directed the trial court to make its judgment clear that the statutory cap did not apply to the driver.19 The Missouri Court of Appeals-Western District tackled the issue in Cottey v. Schmitter,20 where the plaintiff alleged negligence on the part of a snowplow driver working in the course and scope of his employment with the Missouri Highways and Transportation Commission. The trial court entered judgment against the employee in the full amount of the damages but limited the judgment against MHTC to the applicable statutory amount.21 The defendant claimed the judgment against him should also have been reduced to the statutory caps.22 His theory was the sovereign immunity caps were triggered on the basis that the State Legal Expense Fund was required to pay the judgment and, as such, it was essentially a claim against the State of Missouri.23 The court of appeals rejected this theory and affirmed the trial court’s decision to reduce the judgment only as to MHTC, but not as to the employee.24The Missouri Court of Appeals-Eastern District next considered the issue in Cole v. Warren County R-III School District,25 a personal injury lawsuit against both the school district and its employee school bus driver. After the jury returned a verdict in favor of the plaintiff, the trial court reduced the judgment with respect to the sovereign school district pursuant to the caps provision of § 537.600 but denied the motion to reduce the judgment against the employee driver.26 The defendant driver argued the “intent of the statute, to limit liability, would be thwarted and violate public policy” if the cap were not applied to him as well.27 The court of appeals rejected that argument, relying upon Cottey in holding that the trial court properly refused to reduce the judgment against the employee because sovereign immunity “is not transferable to the employee.”28 The issue popped up again more recently in Brancati v. Bi-State Development Agency.29 In that case, it was admitted that a Bi-State employee failed to yield the right-of-way to a bicyclist.30 The jury returned a verdict in favor of the plaintiff in the amount of $625,000.31 Thereafter, Bi-State filed a motion for remittitur asking that the judgment be reduced to the then per-person statutory cap of $414,418 for both defendants.32 In so doing, Bi-State conceded the sovereign immunity cap had never been applied to an individual government defendant, but nonetheless asked the court to overrule prior case law on the subject without any credible explanation as to why it was appropriate to depart from the various decisions of the Supreme Court of Missouri and the Missouri Court of Appeals.33 The Missouri Court of Appeals-Eastern District quickly rejected the argument, stating succinctly: “We decline to do so.”34 The common theme from each of these cases is that there is no viable claim that sovereign immunity caps are applicable to individual government defendants. Conclusion Whether it is confusion over the immunity doctrines or the laying of a trap for the unwary or simply wishful thinking, claims continuously resurface that sovereign immunity caps should apply to individual government defendants. These claims will continue to be rejected. Sovereign immunity is applicable only to governmental entities. The doctrine has been waived by statute for all Missouri public entities in connection with negligence claims related to motor vehicle accidents. The official immunity and public duty doctrines do not apply in an ordinary, non-emergency motor vehicle accident situation involving a governmental employee. The sovereign immunity waiver is subject to caps, but sovereign immunity is not applicable to claims asserted against individual governmental employees and the sovereign immunity caps do not transfer.Endnotes1 Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008); Shane K. Blank, King’s Court: Demystifying Missouri’s Governmental Immunity Doctrines, 71 J. Mo. B. 192 (2015).2 Southers, 263 S.W.3d at 608.3 Rustici v. Weidemeyer, 673 S.W.2d 762, 768 (Mo. banc 1984); Southers, 263 S.W.3d at 613.4 St. Louis Sewer Dist. v. Bellefontaine Nbrs., 476 S.W. 3d 913, 921 (Mo. banc 2004); BLACK’S LAW DICTIONARY at 1252 (5th Ed. 1979).5 O’Dell v. School District of Independence, 521 S.W.2d 403, 406 (Mo. banc 1975). For a very thorough evaluation of the history of sovereign immunity in Missouri, see Blank, supra note 2 generally and specifically as to this issue at 197 n.11.6 Jones v. State Highway Commission, 557 S.W.2d 225, 230 (Mo. banc 1977).7 MO. REV. STAT. § 537.600(1); Southers, 263 S.W.3d 603, n.5; Boever v. Special School District of St. Louis, 296 S.W.3d 487, 493 (Mo. E.D. 2009).8 State ex rel. Alsup v. Kanatzer, 588 S.W 3d 187, 190 (Mo. banc 2019).9 Southers, 263 S.W.3d at 612.10 Brown v. Tate, 888 S.W.2d 413, 415 (Mo. App. W.D. 1994); State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 675 (Mo. banc 1988). Whether a motor vehicle accident occurs in a routine, non-emergency, nondiscretionary situation can be hotly contested. See State ex rel. Barron v. Beger, 655 S.W.3d 356 (Mo. banc 2022). 11 Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985); Davis v. Lambert-St. Louis International Airport, 193 S.W.3d 760, 763 (Mo. banc 2006).12 Brown, 888 S.W.2d at 415.13 Id. at 416.14 MO. REV. STAT. § 537.610.15 MO. REV. STAT. § 537.610 (1986) (imposing a $100,000 per person and a $1 million per accident or per occurrence cap).16 “The limitation on awards for liability provided for in this section shall be increased or decreased on an annual basis effective January first of each year in accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published by the Bureau of Economic Analysis of the  United States Department of Commerce.” MO. REV. STAT. § 537.610(5). The per person cap in 2023 is $488,755. <a href="https://insurance.mo.gov/industry/sovimmunity.php" target="_blank">https://insurance.mo.gov/industry/sovimmunity.php</a>.17 Trimble, 745 S.W.2d 672, 675 (Mo. banc 1988).18 Id. at 679.19 Id.20 24 S.W.3d 126 (Mo. App. W.D. 2000).21 Id.22 Id. at 129.23 Id.24 Id.25 23 S.W.3d 756 (Mo. App. E.D. 2000).26 Id. at 758–759.27 Id. at 761.28 Id.29 571 S.W. 3d 625 (Mo. App. E.D. 2018).30 Id. at 630.31 Id.32 Id. at 636.33 Id. at 637.34 Id.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 03 Apr 2024 11:00:00 -0500</pubDate>
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<title>Top Takeaways: January/February Journal of The Missouri Bar</title>
<link>https://news.mobar.org/top-takeaways-januaryfebruary-journal-of-the-missouri-bar/</link>
<guid>https://news.mobar.org/top-takeaways-januaryfebruary-journal-of-the-missouri-bar/</guid><pp:caseid>621654</pp:caseid><description><![CDATA[For employment law practitioners and human resource professionals, a significant U.S. Supreme Court decision recently changed the game regarding religious workplace accommodations. Learn more about Groff v. DeJoy in <a href="https://news.mobar.org/groff-v-dejoy-a-paradigm-shift-for-religious-workplace-accommodations/" target="_blank">this article by Kirk Davis.</a> “Before I met my lawyer, I felt hopeless, and after I met my lawyer, I got that hope back.” Late last year, The Missouri Bar’s 2022-23 Leadership Academy launched a PSA campaign spotlighting the work of Missouri lawyers and the voices of real clients. Find out the motivation behind the project and watch the videos for yourself <a href="https://news.mobar.org/as-seen-on-tv-how-lawyers-impact-their-clients-and-communities/" target="_blank">here.</a> Why did you become a lawyer? That’s the question we posed to three Missouri Bar members in the Journal’s <a href="https://news.mobar.org/closing-statements-why-did-you-become-a-lawyer/" target="_blank">new “closing statements” feature.</a> See their replies and share your own thoughts – you might be featured in our next issue! If you find Missouri’s attorney discipline system overwhelming, you’ll appreciate this guide and flow chart from the Office of Chief Disciplinary Counsel. Check it out <a href="https://news.mobar.org/ethics-understanding-rule-5-a-flow-chart-for-attorney-discipline-in-missouri/" target="_blank">here.</a> Did you resolve to be more efficient – and less stressed – in 2024? Don’t miss our <a href="https://news.mobar.org/five-things-lawyers-rarely-do-but-should/" target="_blank">latest Management Matters article,</a> which spotlights five techniques that can help you even better serve your clients.  The Journal of The Missouri Bar is the official publication of The Missouri Bar. Published six times annually, the Journal carries substantive articles on timely legal issues, as well as regular columns, practice management articles, and features covering cutting-edge topics that are trending in the legal profession. Notices of Supreme Court of Missouri rule changes, upcoming meetings, continuing legal education programs, and more may also be found in each issue. Read the full January/February issue <a href="https://mobar.org/site/NewsEvents/Journal/site/content/News-and-Events/Journal_of_the_Missouri_Bar.aspx?hkey=448946d4-be9f-40ba-9e42-348be6a86e62" target="_blank">here.</a>]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 19 Feb 2024 10:27:00 -0600</pubDate>
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<title>Closing statements: Why did you become a lawyer?</title>
<link>https://news.mobar.org/closing-statements-why-did-you-become-a-lawyer/</link>
<guid>https://news.mobar.org/closing-statements-why-did-you-become-a-lawyer/</guid><pp:caseid>619983</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><description><![CDATA[Whitney Scurlock, chief deputy counsel, Missouri Public Service Commission, Jefferson City“I always think it’s funny when someone asks why I became a lawyer because I never even thought about going to law school as a kid. I loved to read and write my whole life and in my second year of college I thought, ‘Maybe I should try going to law school?’ As if going to law school was the same as going somewhere on vacation! But I think in hindsight I have spent my whole life advocating for what I believed in and listening to all of the facts of a situation before I come to a decision. Deep down I think my soul always knew it wanted to be a lawyer; it just took time for the rest of me to catch up.”Jessica Chinnadurai, attorney advisor, U.S. Copyright Office, Washington, D.C.“I’ve always deeply appreciated the creative arts. My love of music started with piano lessons as a young girl, while college courses in photography expanded my artistic interests. Today, I still finish a good book or movie and reflect on the story, in complete awe of the author or director. I became a lawyer because I’m fascinated by the human mind—how we perceive and process our experiences and feel inspired to create music, artwork, literature, and more. It’s a privilege to educate people about their intellectual property rights and help them understand the economic and cultural value of their creativity.”John Gunn, The Gunn Law Firm, St. Louis“Becoming a lawyer was never really on my radar. As a senior in college, I realized that I had no job prospects and no clue where I even wanted to live. My parents understood how difficult this might become and made me an offer: if I decided to take the LSAT, they would pay for it. I took them up on the offer, did fairly well on that test, and applied to Saint Louis University School of Law. I was accepted and enrolled. By the end of the first semester (while studying for a torts final) it washed over me like a warm bath that this, the legal profession, is where I belonged.”We were wondering… Who is your professional mentor? Share your answer by writing to <a href="mailto:hkiddoo@mobar.org" target="_blank">hkiddoo@mobar.org</a> or filling out a form at <a href="https://mobar.wufoo.com/forms/closing-statements/" target="_blank">mobar.wufoo.com/forms/closing-statements</a>.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 15 Feb 2024 08:00:00 -0600</pubDate>
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<title>Taxes in your practice: IRS penalty relief and ERC disclosure program</title>
<link>https://news.mobar.org/taxes-in-your-practice-irs-penalty-relief-and-erc-disclosure-program/</link>
<guid>https://news.mobar.org/taxes-in-your-practice-irs-penalty-relief-and-erc-disclosure-program/</guid><pp:caseid>619981</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><pp:summary><![CDATA[As we transitioned into the new year, the Internal Revenue Service made important announcements regarding penalty relief for taxpayers affected by the COVID-19 pandemic and employers involved in Employer Retention Credit. The following summary notes what lawyers should know to even better serve their clients. ]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journalscottvincent.jpg?x=1707238180012" alt="Journal Scott Vincent" width="200">  Scott E. Vincent is the founding member of Vincent Law, LLC in Kansas City.Penalty relief IRS announcement 2023-244 (Dec. 19, 2023) provides background and information on new penalty relief for taxpayers affected by the pandemic and refers taxpayers to IRS notice 2024-7 for further details.The announcement promises new penalty relief for approximately 4.7 million individuals, businesses, and tax-exempt organizations that were not sent collection reminder notices during the pandemic.The IRS expects to provide about $1 billion in penalty relief, with most of the relief provided to taxpayers that have income of less than $400,000 per year. The IRS also indicated that nearly 70% of the individual taxpayers receiving relief have income of less than $100,000 per year. As background, starting in February 2022, the IRS temporarily suspended mailing of automated reminders for overdue taxes that normally would be issued following initial notices of a balance due. Even though the reminder notices were suspended, failure-to-pay penalties continued to accrue on unpaid taxes after issuance of initial balance due notices. As the IRS now resumes normal notice and collection processes for the 2020 and 2021 tax years, it is taking several steps to help taxpayers with unpaid tax bills, including some taxpayers who have not received any notices from the IRS in more than a year. The IRS will be issuing a special reminder letter to alert taxpayers of their liability, options for payment, and the amount of any applicable penalty relief.As part of this process, the IRS will waive failure-to-pay penalties for eligible taxpayers affected by the pandemic for tax years 2020 and 2021. This will include adjusting individual; business; and trust, estate, and tax-exempt organizations accounts, in that order. Some of the adjustments may already have occurred, but others may not be processed until March 2024. The penalty relief is automatic, so eligible taxpayers should not have to apply or take any action to receive relief. For taxpayers that already paid failure-to-pay penalties for 2020 and 2021 tax years that would have been eligible for relief, the IRS will issue a refund or credit the payment to other outstanding tax liabilities. This penalty relief only applies to eligible taxpayers. Eligible taxpayers include individuals, businesses, trusts, estates, and tax-exempt organizations that filed applicable tax returns for tax years 2020 or 2021 with an assessed tax of less than$100,000 as of Dec. 7, 2023, and that were in the IRS collection notice process or were issued an initial balance due notice between Feb. 5, 2022, and Dec. 7, 2023. The IRS indicates that this $100,000 limit applies separately to each return and each entity. Notably, the relief is not available for any return to which a fraud penalty applies. The relief also does not apply to penalties resolved through offers in compromise, closing agreements, or final determinations in judicial proceedings.The “relief period” identified in the notice begins on the later of the date of the initial balance due on Feb. 5, 2022, and ends on March 31, 2024. Failure-to-pay penalty assessments will resume on April 1, 2024, for taxpayers eligible for relief. Eligible taxpayers will remain liable for failure-to-pay additions that accrued before or after the relief period. Individual and business taxpayers should see this automatic relief as a refund or credit on their IRS transcript. For additional questions regarding this penalty relief, you can contact the IRS after March 31, 2024, presumably after the automatic processes are complete. The IRS announcement also encourages taxpayers that are not eligible for this automatic relief to consider other options. They may be able to obtain penalty relief by applying under reasonable cause criteria or the first-time abate program. The announcement directs taxpayers to seek additional information on these programs at <a href="https://www.irs.gov/payments/penalty-relief" target="_blank">IRS.gov/PenaltyRelief</a>.ERC Voluntary Disclosure Program IRS announcement 2024-3 outlines a Voluntary Disclosure Program for certain employers to resolve erroneous claims or refunds resulting from participation in the Employer Retention Credit program. The ERC is a refundable credit intended to assist businesses and tax-exempt organizations that continued paying employees during the pandemic. It generally applies to employers whose operations were suspended due to a government order, experienced a decline in gross receipts, or were a recovery startup business during applicable eligibility periods. The IRS has concerns about scams and potential fraud relating to ERC claims based on false and misleading public advertisements and solicitations. Taxpayers that have erroneously received the ERC could face assessment and collection enforcement action from the IRS. The IRS expects to prevail in any assessments and litigation imposing penalties and interest in these circumstances. However, in the interest of “efficient tax administration,” the IRS announced this Voluntary Disclosure Program for taxpayers to avoid potential assessments, litigation, penalties, and interest. The Voluntary Disclosure Program allows participants in the ERC to finally settle the ERC for purposes of employment tax obligations by eliminating their eligibility for the ERC but allowing them to retain 20% of the claimed ERC amount and avoid penalties and interest. Since the ERC reduces income tax expenses for qualified wages, the program also resolves the issue of corresponding adjustment to income tax expense for participants. The program requires the participant to acknowledge they are not eligible for the ERC for the periods at issue and remit 80% of the claimed ERC. The participant also must provide preparer and advisor information with respect to submission of the ERC claim, if they were assisted by a third party in making the claim. The program is available to any participant that has received an ERC credit or refund, provided that (1) the participant is not under criminal investigation; (2) the IRS has not already received or acquired information related to the participant’s noncompliance; (3) the participant is not under an employment tax examination for the tax periods relating to the program; and (4) the participant has not previously received a demand for repayment of all or part of the ERC claimed. Conclusion The recent IRS announcements on penalty and ERC relief reflect an effort to get IRS processes back to “normal” after pandemic administrative changes and pandemic relief programs. The IRS positions may be helpful to many taxpayers as they work toward compliance after the pandemic.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 15 Feb 2024 07:00:00 -0600</pubDate>
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<title>The flag: Home association restrictions, arbitration agreements, and more</title>
<link>https://news.mobar.org/the-flag-home-association-restrictions-arbitration-agreements-and-more/</link>
<guid>https://news.mobar.org/the-flag-home-association-restrictions-arbitration-agreements-and-more/</guid><pp:caseid>619964</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_journal-w.dudleymccarter.jpg?x=1707232035143" alt="Journal - W. Dudley McCarter" width="200"> W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.RESTRICTIVE COVENANTS ON REALTY ARE STRICTLY CONSTRUED   Willow Farm Pool and Home Assoc., Inc. v. Zorn, 676 S.W.3d 49 (Mo. App. W.D. 2023). The trial court found that Scott and Rachel Zorn breached their homeowner association’s Declaration of Restrictions by providing childcare services from their single family residential home. The Zorns appealed the judgment, and the Missouri Court of Appeals-Western District reversed the decision in Willow Farm Pool and Home Association, Inc. v. Zorn.1 “Residential purposes” has been defined by Missouri courts as “one in which people reside or dwell, or in which they make their homes, as distinguished from one which is used for commercial or business purposes.”2 Restrictive covenants on realty are strictly construed as the law favors untrammeled use of real estate.3 It is the burden of the party attempting to enforce restrictions to prove that how a real estate is being used violates the restrictions.4 “Restrictive covenants will not be extended by implication to include anything not clearly expressed in them, and if there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property.”5 “It seems that no Missouri court has addressed whether a home day care violates a restrictive covenant requiring a property to be used for residential purposes,” the court of appeals stated. “Other jurisdictions have considered whether a home day care violates applicable restrictive covenants pertaining to residential purpose. There is no clear consensus.”6 The Zorns own property that is bound by an amendment to the “Use of Land” section of the Willow Farm Pool and Homes Association’s Declaration and Declaration of Restrictions (“Homes Association Restrictions”).7 The section states that “none of the lots … shall be used or occupied for other than single family residence purposes.”8 The Willow Farm Pool and Homes Association argued any and all business or commercial activity is prohibited by the Homes Association Restrictions, adding the Homes Association Restrictions “create a bright line between residential and business and that the prohibition against business activity is complete and absolute.”9 “The Homes Association interpretation is extreme in today’s modern world,” the court stated. “Under the Homes Association’s bright line argument, an employee would be prohibited from checking their work email, making a work phone call, completing a work project, or engaging in any work activity in their home. We reject this interpretation.”10 “We agree with the cases … discussing the difference between a restriction requiring residential use and a restriction prohibiting businesses or commercial use. We are also persuaded by this court’s analysis in Country Club Dist. Home Ass’n discussing how residential purposes is a broad term that does not necessarily mean only residential purposes and is a term that can be narrowed with additional language. It is undisputed that the Zorns and their children live at the Property full time. It is their residence, and they use it for residential purposes. The trial court erred in finding that a licensed family childcare home is prohibited … under the Homes Association Restriction.”11THIRD-PARTY BENEFICIARY NOT BOUND BY ARBITRATION AGREEMENT  Rister v. NHC Healthcare – Osage Beach, LLC, 674 S.W.3d 794 (Mo. App. S.D. 2023). The NHC Healthcare-Osage Beach, LLC (NHC) appealed an order denying NHC’s motion to compel arbitration with Joan Rister, a resident at NHC’s skilled nursing facility. Joan did not sign the arbitration agreement. Instead, it was signed by her husband, Fred Rister. The Missouri Court of Appeals-Southern District affirmed the judgment in Rister v. NHC Healthcare – Osage Beach, LLC.12 “When there are factual disputes regarding the existence of an agreement to arbitrate, the trial court must determine ‘whether an arbitration agreement exists.’”13 “The party asserting the existence of a valid and enforceable contract to arbitrate bears the burden of proving that proposition.”14 The court notes a party can only be compelled to arbitrate if they have agreed to do so.15 In this case, the court found there was “no evidence that Fred had any legal authority to sign on Joan’s behalf.”16 Absent any evidence that Fred had any legal authority to sign on Joan’s behalf, “there was no agreement to arbitrate binding Joan.”17 “NHC’s second point contends the trial court ‘erred in denying [NHC’s] motion to compel arbitration’ because Joan ‘was a third-party beneficiary to the agreement’ in that she ‘accepted a benefit under the Preadmission and Arbitration Agreement’ and is ‘therefore estopped from denying its effect[.]’ We disagree,” the court stated.18 “Assuming, arguendo, that Joan could be considered a third-party beneficiary of the Arbitration Agreement, [m]ere status as a third-party beneficiary, alone, is not sufficient to support binding an unwilling nonsignatory to an arbitration agreement. 'Even if a party is a third-party beneficiary of an agreement containing an arbitration provision, the third-party must still manifest some agreement to arbitrate or otherwise be bound[.]' Here, there is nothing in the record that indicated Joan’s willingness to arbitrate.”19TRIAL COURT DID NOT ERR IN ORDERING NEW TRIAL BASED ON CHANGE IN TESTIMONY BY EXPERT WITNESS  Z.R. v. Kansas City Pediatrics LLC, 2023 WL 7136352 (Mo. App. W.D. 2023). Scott Dattel, M.D., and Kansas City Pediatrics, LLC, (“Defendants”) appealed the circuit court’s judgment granting Z.R.’s motion for a new trial. The trial court granted Z.R.’s motion after a jury found in favor of Defendants on Z.R.’s claim for medical malpractice. “The trial court determined that Z.R. was entitled to a new trial because a defense expert witness provided trial testimony that ‘directly contradicted’ his earlier deposition testimony, this change in testimony was not disclosed to Z.R. prior to trial, and the ‘undisclosed testimony unfairly resulted in substantial prejudice’ to Z.R.”20 The Missouri Court of Appeals-Western District affirmed the trial court order.21"Discovery rules and case law establish the principle that when an expert witness has been deposed and later changes his opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition … If an expert provides different testimony from that disclosed in discovery, then the trial court is vested with discretion to determine how to remedy the situation."22The court of appeals found the trial court “was within its discretion to grant Z.R. relief by ordering a new trial” and “to conclude that Z.R.’s ability to cross-examine or impeach defense expert on his new opinion at trial was insufficient to mitigate the prejudice suffered by Z.R. from the surprise trial testimony.”23 MECHANIC’S LIENS HAD PRIORTY OVER DEEDS OF TRUST THAT SECURED FINANCING FOR CONSTRUCTION  Custom Construction Solutions LLC v. B & P Construction, 2023 WL 8192918 (Mo. App. E.D. 2023). Following a bench trial, the trial court found the mechanic’s liens filed by Custom Construction Solutions, LLC; Cannon Design, Inc.; and Concrete Strategies, LLC (collectively, “lien claimants”) “had priority over the deed of trust” filed by Gamma Real Estate Capital, LLC for a project involving the Railway Exchange Building and parking garage in downtown St. Louis.24 The Missouri Court of Appeals-Eastern District affirmed the judgment.25“A mortgagee holding a deed of trust can waive its priority interest to a mechanic’s lien if the mortgagee induces 'the furnishing of labor and material.' Generally, the priority of a superior deed of trust over an equitable lien can be waived where there is evidence that the holder of a superior deed of trust is aware that its loan will be used for construction on the property and will be secured by the property where the construction activity will be undertaken.”26The court of appeals stated: “[T] he trial court found that Gamma was 'clearly aware that its loan would be used for construction on the property and that the loan would be secured by the property where the construction activity would be undertaken' … [S]ubstantial evidence supported the trial court’s findings that Gamma was aware its loan proceeds would be used for construction and the property would be subject to liens, and Gamma waived the priority of its deed of trust for the Railway Exchange Building and garage.”27 Endnotes1 676 S.W.3d 49 (Mo. App. W.D. 2023).2 County Club Dist. Homes Ass’n v. Country Club Christian Church, 118 S.W.3d 185, 189 (Mo. App. W.D. 2003).3 Golf Club of Wentzville Community Homeowners Assn. v. Real Homes, Inc., 616 S.W.3d 339, 342 (Mo. App. E.D. 2020).4 Id.5 Id.6 676 S.W.3d at 55.7 Id.8 Id. at 51.9 Id. at 59.10 Id.11 Id. at 59-60.12 674 S.W.3d 794 (Mo. App. S.D. 2023).13 Id. (quoting Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020)).14 Id. (quoting Duncan v. TitleMax of Mo., Inc., 607 S.W.3d 243, 249 (Mo. App. 2020)).15 Finney v. Nat’l Healthcare Corp., 193 S.W.3d 393, 395 (Mo. App. 2006).16 674 S.W.3d at 799. 17 Id. 18 Id. 19 Id. (quoting Cent. Tr. Bank v. Graves, 495 S.W.3d 797, 803 (Mo. App. 2016)). 20 Z.R. v. Kansas City Pediatrics LLC, 2023 WL 7136352 (Mo. App. W.D. 2023). 21 Id. 22 Beverly v. Hudak, 545 S.W.3d 864, 869–70 (Mo. App. W.D. 2018). 23 2023 WL 7136352 at 5. See also Whitted v. Healthline Mgmt. Inc., 90 S.W.3d at 474 (Mo. App. E.D. 2002) (trial court did not abuse its discretion in awarding the plaintiffs a new trial on basis of “inconsistent testimony” where the defense expert’s deposition testimony as to the cause of death differed from his trial testimony); see also Pasalich v. Swanson, 89 S.W.3d 555, 561–63 (Mo. App. W.D. 2002) (trial court did not abuse its discretion in granting the plaintiff a new trial where the defense expert offered a new opinion at trial as to what caused the plaintiff’s injuries and did not disclose the change in opinion prior to trial. The trial court also did not abuse its discretion in finding the plaintiff was sufficiently prejudiced by surprise expert testimony to warrant a new trial, even though the plaintiff cross-examined the expert at trial “on variances of his opinion and attack[ed] his credibility”). 24 Custom Construction Solutions LLC v. B & P Construction, 2023 WL 8192918, 1 (Mo. App. E.D. 2023). 25 Id. 26 Id. at 4 (quoting H.B. Deal Const. Co. v. Labor Disc. Ctr., Inc., 418 S.W.2d 940, 952 (Mo. Div 1 1967) overruled on other grounds by R.L. Sweet Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365 (Mo. banc 1974); and First Banc Real Est., Inc. v. Johnson, 321 S.W.3d 322, 335 (Mo. App. W.D. 2010)). 27 2023 WL 8192918 at 4-5.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 14 Feb 2024 07:00:00 -0600</pubDate>
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<title>In Brief</title>
<link>https://news.mobar.org/in-brief/</link>
<guid>https://news.mobar.org/in-brief/</guid><pp:caseid>619822</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><description><![CDATA[Utilize the bar’s forms bank to streamline your practice Whether you’re new to the profession, a solo practitioner, or a lawyer with decades of large firm experience, having the appropriate tools at your disposal makes all the difference in succeeding within the practice of law and even better serving your clients. Through the forms bank on <a href="https://connect.mobar.org/home" target="_blank">connect.MOBAR</a>, The Missouri Bar provides free forms, white papers, comparison charts, checklists, and articles related to various practice areas and stages of managing a law firm. Get started at <a href="https://connect.mobar.org/communities/community-home/librarydocuments?LibraryKey=180a597a-279f-48aa-87f7-9457ff960363" target="_blank">MoBar.org</a>. <img class="image_resized image-style-align-right" style="aspect-ratio:419/auto;width:419px;" src="https://content.presspage.com/uploads/2361/ec806bbc-72d8-4899-a361-e4fa5a665426/800_awardsimage.png?x=1707146626131" alt="Awards image" width="419" height="auto">Award nominations open March 1 Starting March 1, The Missouri Bar, The Missouri Bar Foundation, and The Missouri Bar Young Lawyers’ Section will begin accepting nominations for several awards that recognize the amazing work of lawyers and non-lawyers. This includes: <ul><li>E.A. Richter Award for Excellence in Citizenship Education; </li><li>Dr. Warren H. Solomon Civic Virtue Award; </li><li>Purcell Professionalism Award; </li><li>Spurgeon Smithson Awards; </li><li>Liberty Bell Award; and </li><li>Tom Cochran Community Service Award.</li></ul>Visit <a href="https://mobar.org/site/content/About/Awards.aspx" target="_blank">MoBar.org/Awards-Info</a> to read about the various recognitions and submit nominations. View past award recipients at <a href="https://news.mobar.org/?h=1&t=awards" target="_blank">MoBar.org/Awards</a>.Need ethics advice? Contact the Office of Legal Ethics Counsel! Many questions can be answered over the phone at 573-638-2263, or lawyers may also request a written informal advisory opinion. There is a searchable database of published informal opinions at <a href="https://mo-legal-ethics.org/" target="_blank">mo-legal-ethics.org</a>, as well as links to formal opinions, resource pages, and other helpful ethics information.<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/81816b9c-25dc-4c51-90cf-412da256d5d7/500_rememberingwellness-brain.png?x=1707147017507" alt="Remembering wellness - brain" width="200">Remembering wellnessIf you’re dealing with seasonal depression during winter, treatment can help! Reach out for assistance if you’re experiencing seasonal depression symptoms: sadness, loss of energy, fatigue, and changes in sleeping or eating habits. For more resources, go to <a href="https://mobar.org/MOLAP" target="_blank">MoBar.org/MOLAP</a>.Tech Tip Using unknown charging devices is like chewing used gum off a public surface. Phones and other devices can be compromised when plugged into a malicious charging device or USB port – putting your professional and personal data at risk. Never use a public charging station or even the provided USB charge ports in a hotel room. Always use your own charging brick that you know to be secure because you have purchased it new.<img class="image_resized image-style-align-right" style="width:200px;" src="https://content.presspage.com/uploads/2361/aa4cd614-a2dc-40fa-872a-82a6902327fd/500_savethedate-phone.jpg?x=1707147062098" alt="Save the date - phone" width="200">Save the date<ul><li>The February Missouri Bar Exam is Feb. 27-28 in Columbia. Share your advice with those sitting for the exam on social media using #NewMOLawyers. </li><li>The Missouri Bar Board of Governors will meet March 7-8 in Jefferson City. </li><li>Show Me The Constitution, a mock constitutional hearing competition for high school students sponsored by The Missouri Bar’s Citizenship Education Department, will take place April 8. </li></ul>]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Tue, 13 Feb 2024 07:00:00 -0600</pubDate>
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<title>President's page: What’s the point(illism)?</title>
<link>https://news.mobar.org/whats-the-pointillism/</link>
<guid>https://news.mobar.org/whats-the-pointillism/</guid><pp:caseid>619955</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><pp:summary><![CDATA[Greetings, colleagues. I write this in the first days of the new year, full of high aspirations and fresh resolve.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/8658c6d6-ba15-4c10-8b95-79de12c06fde/500_meganphillips-2023.jpg?x=1707227658953" alt="Megan Phillips-2023" width="200"> Megan Phillips is the 2023-24 Missouri Bar president.As lawyers, we expect much of ourselves, striving for whatever we perceive as perfection. But let’s be real. We’re in a challenging season. And the winter blues are only a fraction of it.It’s hard to stay positive in this era of division and global conflict.The World Justice Project estimates that the rule of law is declining in 82 countries, including the United States.1 We went to law school to make a difference, to serve our communities, and to advance democracy. So, in today’s climate, it might often feel like your best efforts are tantamount to rearranging deck chairs on the Titanic. But here’s the thing. We can and do make a difference, collectively, with each good act. The Supreme Court of Missouri created The Missouri Bar as a unified bar to unite us in our mission to improve the profession, the law, and the administration of justice on behalf of the public. Today, we enjoy the combined strength of 31,000 members. Together, our potential for good is greater than the sum of our parts. Think of a pointillist painting in which each small victory, act of integrity, and gesture of kindness is a tiny individual dot of color. Up close, they may seem like nothing more than random dots. But, stepping back and shifting focus, one can see that your individual daily heroics form a greater, cohesive tableau that elevates the Third Branch and improves the lives of those we serve. In 2023, thousands of you provided pro bono or reduced fee services. Last year, 65 volunteer lawyers answered 2,266 questions through Missouri.FreeLegalAnswers.org. We provided training for high school civics teachers, and we visited classrooms. We helped our clients, served our communities, and uplifted each other in our strategic work and in infinite spontaneous moments. So, as we start a new year and trudge through these cold months, I urge you to carry on and seek out connection and collaboration through our bar as a form of perseverance, to paint more dots. News.MoBar.org and the weekly ESQ. e-newsletter contain a wealth of information about opportunities to network, learn, volunteer, and witness your inspirational service to the profession and the public. It feels good to do good, and we exert the widest influence when we do it together. So, grab a paintbrush and pick a color.<img style="aspect-ratio:824/auto;" src="https://content.presspage.com/uploads/2361/c66f1458-88a4-44aa-8b7c-6d002df52cfc/pointilismmissouribar.png?x=1707249579101" alt="Pointilism Missouri Bar" width="824" height="auto">Endnotes 1 “WJP Rule of Law Index,” World Justice Project, 2023 at worldjusticeproject.org/rule-of-law-index.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 12 Feb 2024 08:00:00 -0600</pubDate>
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<title>Executive summary: Super – and everyday – heroes</title>
<link>https://news.mobar.org/executive-summary-super--and-everyday---heroes/</link>
<guid>https://news.mobar.org/executive-summary-super--and-everyday---heroes/</guid><pp:caseid>619999</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><pp:summary><![CDATA[As a young kid on Saturday mornings, I rarely missed watching the superheroes of the “Super Friends” cartoon solve problems and vanquish villains from their Hall of Justice headquarters. They stood up for others and nurtured hope, spurring on viewers to build a better world. ]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/500_mischabufordepps-030620-2.jpg?x=1707244106137" alt="Mischa Buford Epps-030620" width="200">  Mischa Buford Epps is executive director of The Missouri Bar.As I got older and expanded my worldview, I learned about several real-life heroes who were pioneers in the legal profession – Thurgood Marshall, William Henry Hastie, and Constance Baker Motley to name a few. These legal pioneers’ work and sacriﬁce ﬁghting for civil rights opened doors of opportunity and helped bring about historic change to make our profession more inclusive and more representative of our population as a whole – and their commitment to the law provides a lesson we can all use to help us better serve our clients and communities. Heroes serve as symbols, demonstrating qualities we would like to possess and the ambitions we would like to satisfy. They inspire us by exemplifying values and overcoming challenges. Yet, it’s important to remember that heroes are human, just like us. As lawyers, we can nourish our own inner hero – and the inner heroes of those around us – by aiming to live up to our ideals and making an effort to tell the stories of those we look up to. As I reﬂect on Black History Month, I am reminded of a hero of mine, Charles Hamilton Houston. The ﬁrst special counsel of the National Association for the Advancement of Colored People, Houston was the primary architect of the legal strategy aimed at toppling segregation, earning him the moniker “The Man Who Killed Jim Crow.” After serving in the segregated U.S. Army during World War I, Houston returned to the U.S. in 1919 and entered Harvard Law School, where he became the ﬁrst Black student elected to the editorial board of the Harvard Law Review. After graduating and completing a fellowship at the University of Madrid, he was admitted to the District of Columbia Bar and joined forces with his father to practice law.1 Houston joined the law faculty at Howard University School of Law in 1924, eventually becoming vice-dean. He transformed Howard’s curriculum, leading to accreditation by the American Bar Association in 1930. Houston’s vision for Howard Law School was to train a generation of Black lawyers who would lead the ﬁght against racial oppression, exclusion, and discrimination.2 In 1935, he joined the NAACP on a full-time basis and led the organization’s litigation strategy to overturn the 1896 Plessy v. Ferguson “separate but equal” doctrine. Houston was the visionary in the development of the NAACP’s long range, carefully coordinated litigation campaign that challenged the laws that enforced segregation. He played a pivotal role in nearly every U.S. Supreme Court civil rights case in the two decades before the landmark Brown v. Board of Education ruling in 1954.3Notably, he assisted 1935 Lincoln University graduate Lloyd Gaines in his quest for admission into the University of Missouri School of Law, at the time, an all-white university and the state’s only public law school. In Missouri ex rel. Gaines v. Canada,4 Houston argued that though the state had offered to pay Gaines’ tuition to attend a law school out of state, Missouri had a duty to provide him a qualiﬁed “equal” legal education within the state and there was no “separate but equal” facility within Missouri. The U.S. Supreme Court agreed. Houston died in 1950 before the U.S. Supreme Court’s ruling in Brown v. Board of Education, but his legacy lives on through his famous arguments and the generations of lawyers whose lives he has touched, including mine. Aptly stated by one of his most famous students, the late Justice Thurgood Marshall, “[w]e wouldn’t have been any place if Charlie hadn’t laid the groundwork for it.”5 We may never have the legacy that Houston holds, but his story proves that heroes are often ordinary people doing extraordinary things to make a difference in the lives of others. You are heroes when you help your clients overcome overwhelming situations. You are heroes when you provide pro bono services to those in need and share your knowledge educating students on the role of our courts and the importance of the rule of law. You are heroes when you volunteer and work to improve the law and access to our legal system. It never hurts to consider our heroes and ask ourselves whether we are doing all we can to emulate and carry on their efforts. Perhaps what is possible for them, is possible for us.Endnotes1 Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights 117 (1983); https://legacyofslavery.harvard.edu/alumni/charles-hamilton-houston. 2 McNeil, at 53-54. [136-136] 3 347 U.S. 483 (1954). 4 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). 5 McNeil, at 34 citing “College Honors Charles Houston ’15,” Amherst Magazine, Spring 1978, p. 12, 14.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 12 Feb 2024 07:00:00 -0600</pubDate>
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<title>Meet #MOLawyers: Monique Abby</title>
<link>https://news.mobar.org/meet-molawyers-monique-abby/</link>
<guid>https://news.mobar.org/meet-molawyers-monique-abby/</guid><pp:caseid>619837</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><description><![CDATA[<img class="image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/f6a9128d-9ec3-40e9-8731-7fdc6043bede/500_moniqueabbyheadshot.jpg?x=1707149814902" width="200" alt="monique abby headshot"> Monique Abby is a newly elected member of the Board of Governors of The Missouri Bar representing the eastern district. Abby, an assistant circuit attorney for the City of St. Louis’ Circuit Attorney’s Office, earned her J.D. from Saint Louis University School of Law. Board members serve two-year terms.What made you interested in serving on the Board of Governors? I became interested in serving on the Board of Governors after being a member of the planning committee for the Annual Meeting for a couple of years and witnessing the awesome work that the board does for our entire state. What part of being on the board are you most excited about? I am most excited about working with fellow governors to uphold the bar’s commitment to fostering diversity and inclusion in the profession by furthering our goal of having Missouri lawyers reflect the diverse populations that we serve. As a Black female lawyer, this is an issue that is near and dear to my heart, and I want to continue to provide pathways and access to the legal profession for those who look like me. What do you want the lawyers you represent to know? I am truly a public servant, and I am committed to ensuring that the lawyers, pre-law students, law students, and community are well-represented and informed. I also want them to know that I am knowledgeable regarding legal issues that may affect them directly and/or indirectly and that I am open and available to meet and speak with them about the issues that are important to them. What do you enjoy doing outside of work? I enjoy serving on many boards and volunteering my time with various civic organizations in the area. Also, 15 years ago I created Books & Bubbly Book Club wherein my friends and I meet once per month to patronize a local restaurant and discuss the book chosen by that months’ hostess.Editor’s note: These responses have been edited for clarity and brevity. Do you know a lawyer doing exceptional work who should be highlighted in “Meet #MOLawyers?” Let us know by emailing <a href="mailto:nhillen@mobar.org" target="_blank">nhillen@mobar.org</a>.]]></description><category><![CDATA[molawyers,journal,MOBarBOG]]></category>
<pubDate>Fri, 09 Feb 2024 07:00:00 -0600</pubDate>
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<title>MoBar memory</title>
<link>https://news.mobar.org/mobar-memory/</link>
<guid>https://news.mobar.org/mobar-memory/</guid><pp:caseid>619830</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="aspect-ratio:398/auto;width:398px;" src="https://content.presspage.com/uploads/2361/12e41745-4950-4b65-908c-90888fd50c3b/800_morrycole2017psa.png?x=1707148843338" alt="Morry Cole 2017 PSA" width="398" height="auto">   In 2017, then-Missouri Bar President Morry Cole filmed a public service announcement centered on the importance of having fair and impartial judges, just as sports fans desire fair and impartial umpires or referees. Learn about the bar’s latest PSAs <a href="https://news.mobar.org/as-seen-on-tv-how-lawyers-impact-their-clients-and-communities/" target="_blank">here</a>.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 08 Feb 2024 08:00:00 -0600</pubDate>
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<title>Ethics: Understanding Rule 5: A flow chart for attorney discipline in Missouri</title>
<link>https://news.mobar.org/ethics-understanding-rule-5-a-flow-chart-for-attorney-discipline-in-missouri/</link>
<guid>https://news.mobar.org/ethics-understanding-rule-5-a-flow-chart-for-attorney-discipline-in-missouri/</guid><pp:caseid>619972</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><pp:summary><![CDATA[The goals of the Missouri attorney discipline system are to protect the public and to maintain the integrity of the legal profession.]]></pp:summary><description><![CDATA[In Rule 5, the Supreme Court of Missouri implemented procedures that provide clients and the public with opportunities to have their complaints heard and also provide regulators and Missouri lawyers with a fair process for enforcing the Rules of Professional Conduct contained in Rule 4. The system is operated by and through committees and panels of volunteer lawyers and non-lawyers, professional regulators (the Office of Chief Disciplinary Counsel - OCDC), and the Court’s judicial process. This flow chart depicts the Rule 5 procedures for routine complaints against Missouri lawyers. It indicates options and respective consequences available at various stages to complainants, lawyer respondents, the OCDC and Regional Disciplinary Committees, Disciplinary Hearing Panels, and the Supreme Court of Missouri. Anyone involved in or more curious about a disciplinary proceeding should study Supreme Court of Missouri Rule 5. The process generally begins with the OCDC’s analysis of complaints. If the OCDC determines it has jurisdiction, the OCDC or Regional Disciplinary Committees conduct investigations. If complaints are closed with a finding of insufficient probable cause to justify discipline, complainants may seek review by the Missouri Supreme Court Advisory Committee (Rule 5.11). The OCDC and Regional Disciplinary Committees resolve many disciplinary matters with an admonition or a diversion – with the consent of the lawyer (Rule 5.12 and Rule 5.105). When formal charges (Informations) are filed under Rule 5.12, a Disciplinary Hearing Panel conducts a hearing under Rules 5.14 and 5.15, and then makes findings and recommendations to the Supreme Court of Missouri under Rule 5.16. That rule permits the parties to decide whether to accept or reject the panel’s recommendation and sets the procedures following those decisions. Except for dismissals accepted by all parties, the Court decides all formal disciplinary cases. Rules 5.17 and 5.19 establish the process for the Supreme Court’s analysis of those cases.<img class="image_resized image-style-align-left" style="aspect-ratio:856/auto;width:856px;" src="https://content.presspage.com/uploads/2361/eb672b07-db60-4ef5-9235-367c8fbe34b9/flowchartfinal-1.jpg?x=1707236391433" width="856" alt="flow chart showing disciplinary pathways for lawyers" height="auto">]]></description><category><![CDATA[journal,molawyers,Ethics]]></category>
<pubDate>Thu, 08 Feb 2024 07:00:00 -0600</pubDate>
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<title>Out of the office</title>
<link>https://news.mobar.org/out-of-the-office/</link>
<guid>https://news.mobar.org/out-of-the-office/</guid><pp:caseid>619831</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><description><![CDATA[<img class="image-style-align-left image_resized" style="aspect-ratio:341/auto;width:341px;" src="https://content.presspage.com/uploads/2361/3c3f2d57-15c4-4df7-b94d-48d56a651500/800_outoftheoffice-janfeb24.jpg?x=1707149265735" width="341" alt="Out of the office - JanFeb24" height="auto">   Lawyers Anne Schneider and Debra Snoke-Adams first met while working as Missouri assistant attorneys general in the consumer protection division. In October, the two, along with their spouses, traveled to Norway to explore its fjords and countryside, including the Gol Stave Church at the Norwegian Museum of Cultural History. Share your “Out of the Office” photo with us for a chance to be featured in In Brief. Email <a href="mailto:hkiddoo@mobar.org" target="_blank">hkiddoo@mobar.org</a> or tag us on social media using #MOLawyersLivingWell.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 07 Feb 2024 08:00:00 -0600</pubDate>
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<title>Management matters: Five things lawyers rarely do, but should</title>
<link>https://news.mobar.org/five-things-lawyers-rarely-do-but-should/</link>
<guid>https://news.mobar.org/five-things-lawyers-rarely-do-but-should/</guid><pp:caseid>619869</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><pp:summary><![CDATA[We all know lawyers with great qualities: compassion for those they work with, willingness to listen, and the ability to write and speak clearly and creatively. ]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/1b0dc119-5839-4d65-8930-098588ebdc64/500_jeffreyschoenberger.jpg?x=1707165406219" alt="Jeffrey Schoenberger" width="200">  Jeffrey R. Schoenberger is a senior consultant at Affinity Consulting Group.Hopefully you recognize these qualities in yourself, too. Still, there are five things I’ve noticed lawyers rarely do – but should – to help them even better serve their clients.1. Use your calendar to its full potentialThere are obvious dates we need to track, like statutes of limitations, discovery, motion, and appeal deadlines. You also have deadlines unrelated to work matters, like personal or civic commitments. Use a technique called “time blocking” on your calendar, where you schedule meetings and time to work on these responsibilities.2. Keep better track of your tasksWe live in the golden age of task management applications. For a solo practice, I’d start with the task management app included with your smartphone, the device you’re most likely to have with you. For iOS users, that’s Apple Reminders. For Android users, it’s Google Keep or Gmail Tasks. If you need something with more robust sharing/team capabilities, Microsoft 365 subscribers get Microsoft To Do. Google Workspace subscribers can share tasks with Google Keep or Gmail Tasks. The Microsoft and Google offerings are cross-platform (Android, iOS, Mac, and PC). Apple Reminders is accessible on Windows, with some work, but not on Android. Finally, a third-party option I really like is Todoist. Although a subscription service, it has a free tier, works on major platforms, possesses excellent search and filter tools, and integrates with many web services.3. Plan your workWhile an aimless road trip or walk may be delightful, few people run a successful practice or career that way. If you’re using your calendar and have your tasks and deadlines in order, it’s time to create a clear picture of that day’s work. Most task management apps have a “today” view that shows the tasks you’ve scheduled for the day. If you want to stay “techie,” I’d start there for a daily plan.Personally, I eschew tech in this area. I want something physical that gives me the satisfaction of checking off a list. For this, I use Analog, a system of pre-printed index cards from Ugmonk, though there’s no reason you couldn’t use traditional index cards. You can also try index card-sized templates in Notability or GoodNotes.4. Huddle upIf your practice is more than a true solo situation, it’s good to know what everyone on your team has on their plate. Start each day with a morning huddle. Hold it at the same time every day, and keep it brief. Each team member should arrive with their daily plan. The team leader highlights priorities for the day, and each team member then has one minute to describe their daily plan. Using a task management service makes it easier for team members to compile their daily plan. Google Meet, Microsoft Teams, and Slack offer channels where people can post updates in advance of the meeting. It also gives you an action list for later review.5. Be deliberate in your e-communicationsYour e-communications are more than apps “dinging” at you. I think of all the electronic ways people can reach me like a candy dish sitting on someone else’s desk. I wasn’t hungry, and if I hadn’t walked by it, I would have felt no need to grab a piece. But it was there and convenient, so I snagged one. Make e-communications less front-of-mind by reducing how and when they notify you. Establish a schedule of when you check them. Instead of having email or chat always open, consider scheduling four email checks via time blocking throughout the day (e.g., 8:30 a.m., 11 a.m., 2 p.m., and 4:30 p.m.). This schedule is a good mix of frequency interspersed with solid blocks for substantive work, and the 4:30 p.m. check allows you to read and respond to emails by end of business day. Using these five techniques with the right technology will help you achieve a more efficient and less stressful work environment.Turn these “never do’s” into “have dones.”]]></description><category><![CDATA[journal,molawyers,PracticeManagement]]></category>
<pubDate>Wed, 07 Feb 2024 07:00:00 -0600</pubDate>
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<title>In memoriam: January-February 2024</title>
<link>https://news.mobar.org/in-memoriam---january-february-2024/</link>
<guid>https://news.mobar.org/in-memoriam---january-february-2024/</guid><pp:caseid>619866</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan.-Feb. 2024</pp:subtitle><description><![CDATA[Swanson W. “Rocky” Angle, age 81, of Frisco, TX, on Jan. 2, 2023. Angle earned his J.D. from the University of Virginia School of Law and a masters of laws in government contracts from George Washington School of Law. He was admitted to The Missouri Bar in 1991. Angle served in the U.S. Air Force, including as a NATO trial observer and a senior legal member of the Strategic Air Command at Offutt AFB. Angle later worked as private legal counsel in St. Louis and Dallas, TX, where he retired as general counsel at Dallas Area Rapid Transit. P. Dale Barrett, age 76, of Kirksville, on Feb. 18, 2023. Barrett earned his J.D. from the University of Missouri-Kansas City School of Law, was admitted to The Missouri Bar in 1975, and practiced law for over 45 years. Barrett served in the U.S. Army. Thomas H. Bennett, age 86, of Independence, on Aug. 4, 2023. He was a graduate of the University of Kansas School of Law and was admitted to The Missouri Bar in 1966. He served as general counsel for the Community of Christ Church in Independence for 32 years. Bennett served in the U.S. Army. David M. Bryan, age 66, of Kansas City, on Aug. 4, 2023. Bryan graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1995. Adam M. Burkemper, age 48, of Troy, on June 20, 2023. Burkemper earned his J.D. from Gonzaga University School of Law and was admitted to The Missouri Bar in 2002. He worked at the Burkemper Law Firm and Legal Services of Eastern Missouri. Barkley Clark, age 83, of Tucson, AZ, on July 29, 2023. Clark was admitted to The Missouri Bar in 1991. Fritz G. Faerber, age 80, of Elsah, IL, on Sept. 11, 2023. Faerber was admitted to The Missouri Bar in 1968 and practiced with Faerber & Anderson, PC. He served in the JAG Corps. Douglas A. Forsyth Sr., age 71, of St. Louis, on Nov. 6, 2022. Forsyth operated a criminal defense practice until 2018. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1976. Thomas W. Gray, age 68, of Leawood, KS, on July 18, 2023. Gray was a lawyer for over 40 years and was admitted to The Missouri Bar in 1980. Robert Charles Griesbauer, age 89, of Ellisville, on Nov. 6, 2023. He was admitted to The Missouri Bar in 1965. Charles L. “Chase” Hickman, age 72, of Hannibal, on Sept. 1, 2023. Hickman served as Palmyra city attorney for over 40 years. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 1977. Patricia Hughes, age 73, of Holt, on Feb. 12, 2023. Hughes was admitted to The Missouri Bar in 1982 and practiced with Liberty Law Offices. Russell D. Jones, age 73, of Independence, on Feb. 6, 2023. Jones earned his J.D. from the University of Chicago School of Law and was admitted to The Missouri Bar in 1974. He practiced corporate tax law with Lathrop GPM LLP for 40 years.James “Jim” Michael Kelly, age 76, of Springfield, on Sept. 13, 2023. Kelly earned his J.D. from Saint Louis University School of Law and was admitted to The Missouri Bar in 1972. He served as Greene County prosecuting attorney before opening a private practice. Stephen Matthew King, age 54, of Riverside, on July 27, 2023. He was admitted to The Missouri Bar in 1995. Kenneth D. Kyser, age 78, of Moberly, on June 13, 2023. Kyser attended the University of Missouri School of Law and was admitted to The Missouri Bar in 1968. While in Moberly, he served as assistant prosecuting attorney and juvenile officer. He opened a private practice and went on to become a partner in the Kyser and Suter Law Firm. He concluded his career in private practice and with the 14th Circuit Court. Kyser served in the U.S. Army. Barbara Blee Maille, age 75, of St. Louis, on Aug. 6, 2023. Maille attended the University of Kansas School of Law and was admitted to The Missouri Bar in 1981. She practiced at the KU Medical Center and Danna McKitrick, P.C. Hon. Gene R. Martin, age 97, of Kansas City, on Dec. 19, 2023. Martin earned his J.D. from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1953. He practiced with Ennis, Browne, Martin and Tapp before serving as a judge in Division 10 of the 16th Jackson County Circuit Court. Charles J. Meler Jr., age 75, of Oconomowoc, WI, on Nov. 22, 2022. Meler earned his J.D. from Washington University School of Law and was admitted to The Missouri Bar in 1974. He served as vice president and general counsel at Employers Health Insurance Company; a senior vice president and general counsel to Western Life Insurance Company; and an executive vice president at Fortis Health, Time Insurance Company. He then started his own managed care consultancy, Meler & Associates, Inc., and was majority owner of Health Care Direct, LLC. Maureen M. Miller, age 58, of Lake Saint Louis, on Nov. 12, 2023. Miller was general counsel at several companies in the St. Louis area and operated her own law practice. She graduated from Saint Louis University School of Law and was admitted to The Missouri Bar in 1993. Howard T. Nelson, age 86, of Florissant, on Nov. 17, 2023. Nelson earned his J.D. from George Washington University School of Law and was admitted to The Missouri Bar in 1969. He worked at Ralston Purina for the majority of his career. David G. Platt, age 40, of Bolivar, on Feb. 22, 2023. Platt was a state public defender. He graduated from Washburn University School of Law and was admitted to The Missouri Bar in 2019. John M. Putzel, age 76, of St. Louis, on Oct. 3, 2023. Putzel was admitted to The Missouri Bar in 1976. Norma Leslie Reynolds, age 58, of Overland Park, KS, on Dec. 22, 2023. Reynolds earned her J.D. from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1993. Jeanne Marie Rueth, age 72, of St. Louis, on March 11, 2023. Rueth was a U.S. Air Force judge advocate general. She graduated from Saint Louis University School of Law and was admitted to The Missouri Bar in 1975. Richard D. “Rick” Sabbert, age 73, of St. Charles, on Dec. 15, 2023. Sabbert was admitted to The Missouri Bar in 1977 and practiced law for 45 years. Charles Clifford “Chuck” “Cliff” Schwartz, age 79, of Arnold, on Nov. 27, 2023. Schwartz earned his J.D. from University of Tulsa School of Law and was admitted to The Missouri Bar in 1971. He practiced for 50 years. Robert Michael Schwartz, age 71, of Columbia, March 4, 2022. Schwartz worked in the family real estate brokerage business. He was admitted to The Missouri Bar in 1993. Bryan H. Schemph, age 76, of Williamsburg, VA, on Oct. 14, 2023. Schemph was admitted to The Missouri Bar in 1974. He was a staff judge advocate of Army Training and Doctrine Command before entering private practice at Stein & Smith, JBW&K, and finally his own firm. Ira H. Sharp, age 80, of Del Mar, CA, on June 10, 2023. Sharp was admitted to The Missouri Bar in 1968. He was a partner at Armstrong Teasdale in St. Louis and Chief Counsel and CEO for Alderson Reporting Co. in Washington, D.C. Terry C. Smith, age 88, of Naples, FL, on July 16, 2023. He was admitted to The Missouri Bar in 2002. Joseph R. Soraghan, age 82, of St. Louis, on Oct. 26, 2023. Soraghan attended Washington University School of Law and received his masters of laws from Yale University School of Law. He was admitted to The Missouri Bar in 1965. Soraghan was most recently a principal at Danna McKitrick and was an adjunct professor at Washington University. He served in the U.S. Navy. Michael James Stapp, age 66, of Shawnee, KS, on Jan. 15, 2023. Stapp earned his J.D. from the University of Kansas School of Law and was admitted to The Missouri Bar in 1990. Stapp practiced labor law at Blake & Uhlig for 40 years and was general counsel to the International Brotherhood of Boilermakers.Timothy D. “Tim” Steffens, age 41, of Kansas City, on July 29, 2023. Steffens worked in corporate law for more than 15 years, 10 of them at Polsinelli. He graduated from the University of Missouri School of Law and was admitted to The Missouri Bar in 2006. Peter N. Sterling, age 76, of Kansas City, on Dec. 12, 2023. Sterling attended the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1973. Sterling was briefly in private practice before joining the Missouri State Public Defender System, where he retired as trial division director and general counsel. Jack C. Stewart, age 82, of Hillsboro, on Oct. 2023. Stewart earned his J.D. from the University of Missouri School of Law and was admitted to The Missouri Bar in 1965. He was a senior partner at Wegmann Law and served in the U.S. Army JAG Corps. Jessica L. Sullivan, age 40, of Indianapolis, IN, on Aug. 23, 2023. Sullivan graduated from the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 2010. William (Tom) H. Thomas, Jr., age 76, of Lithia, FL, on June 2, 2023. Thomas attended the University of Missouri School of Law and was admitted to The Missouri Bar in 1973. Thomas practiced law in Rolla for more than 40 years. Cynthia Louise Turley, age 65, of Columbia, on Dec. 22, 2023. Turley was admitted to The Missouri Bar in 1983 and served as an assistant attorney general and a Supreme Court of Missouri deputy clerk. Robert L. Wehrman, age 79, of Blue Springs, on Aug. 11, 2023. Wehrman was admitted to The Missouri Bar in 1970. James M. Whittier, age 85, of Mission Hills, KS, on April 19, 2023. Whittier earned his J.D. from the University of Kansas School of Law and was admitted to The Missouri Bar in 1966. He practiced at Spencer, Fane, Britt and Browne, as well as Ferree, Bunn, Rundberg, Radom, and Ridgeway. Dr. Robert A. Young, age 71, of St. Louis, on July 29, 2023. Young was a plastic surgeon at St. Luke’s Hospital. He graduated from Saint Louis University School of Law and was admitted to The Missouri Bar in 1997.]]></description><category><![CDATA[journal,molawyers,InMemoriam]]></category>
<pubDate>Tue, 06 Feb 2024 07:00:00 -0600</pubDate>
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<title>Groff v. DeJoy: A paradigm shift for religious workplace accommodations</title>
<link>https://news.mobar.org/groff-v-dejoy-a-paradigm-shift-for-religious-workplace-accommodations/</link>
<guid>https://news.mobar.org/groff-v-dejoy-a-paradigm-shift-for-religious-workplace-accommodations/</guid><pp:caseid>619861</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><pp:summary><![CDATA[The U.S. Supreme Court ruled that employers cannot refuse to accommodate an employee’s request for religious accommodation under Title VII of the Civil Rights Act of 1964 unless they can demonstrate that it would have a substantial increase in the cost of doing business.]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="aspect-ratio:274/auto;width:274px;" src="https://content.presspage.com/uploads/2361/258c95b5-6cbd-41ff-93b5-707df9844e7a/800_kirkdavis.jpg?x=1707162426551" alt="Kirk Davis" width="274" height="auto">Kirk Davis, J.D., SPHR, SHRM-SCP, is the HR director for Enterprise Client Relations at <a href="http://www.tandemhr.com/" target="_blank">Tandem HR,</a> a full-service professional employer organization offering outsourced HR solutions, brokerage services, and employee assistance programs to businesses of all sizes since 1998. He has 25 years of combined employment law and human resources experience.For employment law practitioners and human resource professionals, a significant U.S. Supreme Court decision recently changed the game regarding religious workplace accommodations.The Groff v. DeJoy decision establishes a new definition of “undue hardship,” making it fundamentally more difficult for employers to brush aside employees’ requests because they either inconvenience the employers or have expenses associated with the requests. This decision not only changes the standard for evaluating these cases, but will also likely increase the number of requests made by employees and cases filed by lawyers as the courts determine how to apply the Groff decision. Background In a unanimous opinion, the U.S. Supreme Court addressed the “undue hardship” standard which religious accommodation requests have been evaluated against under Title VII of the Civil Rights Act of 1964.1 On June 29, 2023, Justice Samuel A. Alito wrote the decision for the Court which rejected the de minimis cost test previously used to consider “undue hardship.” The Court held that employers rejecting religious accommodation requests must demonstrate that the accommodation “would result in substantial increased costs in relation to the conduct of its particular business.”2Gerald Groff was a U.S. postal worker who, due to his firmly held religious beliefs, wanted to be off on Sundays. While the post office does not ordinarily deliver on Sundays, it recently had entered into a contract with Amazon, which does. Groff argued that he could not work on Sundays because his Sabbath should be set aside for rest and worship. Groff refused to work on Sundays. The United States Postal Service reallocated his work to other mail carriers and disciplined Groff. Groff later resigned and filed suit, alleging there was no undue hardship to USPS in granting his request. USPS countered that Groff worked in a small branch and allowing one employee to be exempt from the Sunday work requirement placed a burden on other employees.3The district court awarded summary judgment to USPS.4 The 3rd U.S. Circuit Court of Appeals then affirmed the ruling based on the precedent established in Trans World Airlines, Inc. v. Hardison, that requiring an employer “to bear more than a de minimis cost” to provide a religious accommodation “is an undue hardship.”5  The court found that allowing Groff to be off on Sundays indeed “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”6 The U.S. Supreme Court granted certiorari and overturned the appellate court decision.7PrecedentSo, how did we get to this point?Title VII prohibits discrimination based on an individual’s chosen religion. It defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”8 It is the definition of “undue hardship” that was at issue in this case. In Hardison, the Court interpreted the term “undue hardship” to mean anything more than a de minimis cost.9 Even though there has been much debate over the years regarding whether the Court intended this de minimis standard to play such a significant role when interpreting the statutory term “undue hardship,” lower courts latched onto the phrase de minimis as the law of the land for decades. Over time, multiple U.S. Supreme Court justices have articulated that the Court should revisit this standard.10 Groff provided them with the opportunity to do so. Analysis There are basically two fundamental questions posed in Groff: (1) Should the Court throw out the de minimis cost standard for evaluating Title VII religious accommodation requests under Hardison; and (2) can an employer establish “undue hardship” by proving the burden on the employee’s co-workers instead of on the business as a whole? With respect to the first question, the Court concluded that an “undue hardship” was one that would result in “substantial increased costs in relation to the conduct of its particular business.”11 The Court articulated this would result in a unique “fact-specific inquiry” for each case. It further offered that the analysis would hinge on a fundamental understanding of the word “hardship.” Alito explained that “[i]n common parlance, a ‘hardship’ is, at a minimum, ‘something hard to bear.’”12Employers clearly will not meet this standard by simply demonstrating they incurred any expense. It must be substantial. There are unique factors to consider in the analysis, like the size of the business, revenues, profitability, number of employees, and the overall impact to business operations. What is clear from the opinion is things like the regular payment of premium wages, hiring of additional employees, or whether the requested accommodation violated other employees’ contractual seniority rights would cause increased safety risks or expose the employer to claims or the risk of legal liability would fall into the realm of “substantial.”13 This new standard not only approaches the analysis from a more holistic viewpoint of business operations, but also considers these unique variables of the business that make a fact-specific inquiry (thus, a detailed conversation with the employee) necessary before reaching a conclusion. Regarding the second question, the Court fundamentally narrowed the scope of the analysis. Not all effects on co-workers are relevant, but only those that “go on to affect the conduct of the business.” Moreover, the Court added that hardship due to employee animosity to a specific religion, religion in general, or to the idea of accommodating religious practices cannot be considered “undue.”14Quite interestingly, the court went on to explain that the analysis does not stop there. It is simply not enough for an employer to determine whether a proposed accommodation was an undue hardship; the employer must also consider other alternatives. In this case, shift swapping was the proposed alternative, but other options were not fully explored. Alito expounded that “it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship.”15 This requirement is similar to the Americans with Disabilities Act interactive process frequently used to evaluate the reasonableness of requests for disability accommodations. There, as long as an employer engages in the interactive process with a disabled employee to offer a reasonable accommodation that equips the employee to perform the essential functions of the job, the employee has no claim that the proposed accommodation is not specifically the preferred or requested accommodation.16 Practical application What are the takeaways for practitioners? There is no doubt that we will see an increase in religious accommodation requests and resulting litigation. This new rule will encourage some plaintiffs to see where courts will side in culture disputes with their employers or co-workers. Employers should be put on notice that the prior de minimis cost test is no longer viable; the revised substantial “undue burden” analysis should be applied on a case-by-case basis; and in doing so, organizations should evaluate all factors relevant to whether a requested religious accommodation would result in substantial increased costs in conducting their business operations. Employers are advised to engage in the interactive process to discover alternatives if the requested accommodation is decided to, in fact, result in an undue burden. While the Court does impose a more rigorous standard here, this is less of a burden on the employee in the Title VII religion context than the ADA disability context. Also, the analysis hinges upon helping employees understand the difference between a “reasonable” accommodation and their “preferred” accommodation. Employers are not obligated to provide the latter if it truly results in an undue hardship. Conclusion  “It is against my religion to work on Sundays.” Before Groff, an employer could respond, “Unless you can have someone pick up your shift, it’s an undue burden to redo the schedule and unexcused absences can be counted against you.” After Groff, the employer’s response should be, “Let’s talk about this.” Undue hardship is now much more difficult to establish, and employers will be advised to think hard about relying on it as a defense except in the most obvious cases. It is likely that the focus will now shift to the reasonableness of the request itself as it has been under the ADA for years. But we will have to wait to see how lower courts begin to interpret and apply Groff.Endnotes1 42 U.S.C. § 2000e(j). 2 Groff v. DeJoy, 600 U.S. 447 (2023).3 Id. at 455.4 Groff v. DeJoy, No. 19-1879, 2021 WL 1264030, at *5 (E.D. Pa. Apr. 6, 2021). 5 TWA v. Hardison, 432 U.S. 63 (1977).6 Groff v. Dejoy, 35 F.4th 162, 175 (3d Cir. 2022). 7 cert. granted (Jan. 13, 2023).8 42 U.S.C. § 2000e(j).9 Hardison, 432 U.S. at 69.10 See Small v. Memphis Light, Gas & Water, 952 F.3d 821, 825 (6th Cir. 2020) (per curiam). Hardison’s de minimis cost test does not appear in the statute. The Court announced that standard in a single sentence with little explanation or supporting analysis. Neither party before the Court had even argued for the rule. Patterson v. Walgreen Co., 589 U.S. ___ (2020) (ALITO, J., concurring in denial of certiorari). Justice Marshall highlighted all these problems at the time, noting in dissent that the de minimis cost test cannot be reconciled with the “plain words” of Title VII, defies “simple English usage,” and “effectively nullif[ies]” the statute’s promise. Hardison, 432 U.S., at 88, 89, 93, n. 6 (Marshall, J., dissenting). 11 Groff, 600 U.S. at 470.12 Id. at 468.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 05 Feb 2024 08:00:00 -0600</pubDate>
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<title>As seen on TV: How lawyers impact their clients and communities</title>
<link>https://news.mobar.org/as-seen-on-tv-how-lawyers-impact-their-clients-and-communities/</link>
<guid>https://news.mobar.org/as-seen-on-tv-how-lawyers-impact-their-clients-and-communities/</guid><pp:caseid>619856</pp:caseid><pp:subtitle>Vol. 80, No. 1 / Jan. - Feb. 2024</pp:subtitle><pp:summary><![CDATA[“When someone’s fighting for you, it just makes you feel like you’re not alone anymore.”]]></pp:summary><description><![CDATA[<img class="image_resized image-style-align-left" style="width:200px;" src="https://content.presspage.com/uploads/2361/86c0c55c-9ac5-406d-ae4a-ee74cb60b157/500_samreevesheadshot.jpg?x=1707161357188" alt="Sam Reeves headshot" width="200">  Sam Reeves earned her bachelor’s of journalism from The University of Missouri in 2023. Following graduation, she joined The Missouri Bar as a communications coordinator, where she produces content to even better inform the public about resources provided by The Missouri Bar and Missouri courts.Although lawyers remain the punchline of many jokes, the truth is lawyers help find solutions to legal problems and navigate the complex legal system. In fact, many lawyers will tell you they joined the profession to help people experiencing difficult situations. Recognizing that public perception doesn’t always favor lawyers, The Missouri Bar’s 2022-23 Leadership Academy class created public service announcements showing real stories of how lawyers have helped their clients. Traditionally, each <a href="https://mobar.org/leadershipacademy/" target="_blank">Leadership Academy</a> class – a dozen lawyer leaders in their first 10 years of practice selected from nominations representing diverse aspects of the profession including diversity in gender, race, area of practice, and region within the state – carries out a service project. When the class learned about the idea for client-focused PSAs, they jumped at the opportunity to take on the project, which they titled <a href="https://missourilawyershelp.org/My-Missouri-Lawyer/" target="_blank">“My Missouri Lawyer.”</a>The vision for “My Missouri Lawyer” included concrete examples of the work lawyers across the state do on a daily basis. When looking for participants, they reached out to members of the bar as well as organizations that provide pro bono or reduced-fee legal services. “The PSAs created for ‘My Missouri Lawyer’ represent the diverse ways that our Leadership Academy class and lawyers in Missouri are helping our citizens,” says Erin Lueker, a member of the 2022-23 Leadership Academy class and lawyer at Sedey Harper Westhoff, PC in St. Louis. “We hope this project helps connect people with services and acknowledges the thousands of lawyers dedicated to their communities.” <img class="image_resized image-style-align-left" style="aspect-ratio:498/auto;width:498px;" src="https://content.presspage.com/uploads/2361/a09998a1-efd9-4d25-8f1b-545597da9635/800_katie039sstory2.jpg?x=1707160709986" alt="katie's story 2" width="498" height="auto">Katie’s storyOne video focuses on St. Louis resident Katie – and the work her lawyer did to help her keep her house. “Before I met my lawyer, I felt hopeless, and after I met my lawyer, I got that hope back,” Katie says in the PSA.Katie shares how she loved going into her grandmother’s room as a child. It was filled with knickknacks, trinkets, and mementos; each item had a story, and she loved to hear her grandmother tell them. Fast forward to 2012, when Katie retired and used the lump sum payout to purchase a cozy home of her own to fill with precious items, just as her grandmother had. In 2014, before she had a chance to truly live in her new home, Katie began receiving letters from the IRS. She had missed one box on the paperwork that should have been checked. This simple mistake caused her to underpay the possible taxes on her retirement – and she worried she would lose her home.“Fear just gripped me,” Katie said. “When fear grips you like that you can’t think, you can’t make logical decisions.” Unsure of what to do, Katie reached out to a Missouri lawyer, who was able to ease her concerns and ultimately help her keep her home. They wrote an offer in compromise, which the IRS accepted. When Katie learned the letter had been accepted, she says she was finally able to breathe again. She realized she wasn’t going to lose her home and was able to get her life back. “I’m happy to say, I love my home and now I can live in it,” Katie tells viewers. Reggie’s story A second PSA spotlights Raytown resident Reggie and his battle to receive disability benefits through the United States Department of Veterans Affairs. In 1972, at the age of 18, Reggie and several of his friends made the life-altering decision to join the U.S. Navy. Reggie says graduating from bootcamp was one of the proudest moments of his life. When he left the Navy, he spent 20 years suffering from undiagnosed post-traumatic stress disorder – a time of his life he describes as “a black hole.” In 2013, he applied for VA disability benefits but was denied. Unsure of how to navigate the process, Reggie reached out to Missouri lawyers. “It was dark,” Reggie says in the PSA. “But when they came into my life, that’s when the sun came out and the storm clouds went away. When someone’s fighting for you, it just makes you feel like you’re not alone anymore.”His lawyers helped him receive the disability benefits he qualified for. Just as importantly, he says they made him feel valued and comforted throughout the process, reassuring him the whole way. “My lawyer gave me my life back,” Reggie tells viewers. This project holds a special place in the hearts of the 2022-23 Leadership Academy class as they continue to strive to better serve their clients and communities.“It means a great deal that The Missouri Bar has a focus on showcasing the amazing work lawyers are doing for their clients and showing the public that access to legal services is paramount to our profession,” says Keegan Tinney, of Dreyer & Tinney in Joplin and a member of the 2022-23 Leadership Academy class.The PSAs began airing on TV and radio in late 2023 and highlight MissouriLawyersHelp.org, a website produced by The Missouri Bar where the public can find a Missouri lawyer and information on various legal topics. You can view the 30-second PSAs and longer video versions at <a href="https://missourilawyershelp.org/My-Missouri-Lawyer/" target="_blank">MissouriLawyersHelp.org/My-Missouri-Lawyer</a>. Lawyers and members of the public are invited to share their own stories of client interactions via submission forms on that webpage.]]></description><category><![CDATA[journal,molawyers,YourMOLaw]]></category>
<pubDate>Mon, 05 Feb 2024 07:00:00 -0600</pubDate>
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<title>Top takeaways: November/December 2023 Journal of The Missouri Bar</title>
<link>https://news.mobar.org/top-takeaways-novemberdecember-2023-journal-of-the-missouri-bar/</link>
<guid>https://news.mobar.org/top-takeaways-novemberdecember-2023-journal-of-the-missouri-bar/</guid><pp:caseid>614041</pp:caseid><description><![CDATA[Corporate Transparency Act If you have not heard of the Corporate Transparency Act, you are not alone. But you’ll want to learn more about this new federal reporting option that impacts nearly everyone beginning Jan. 1. Polsinelli lawyer Bill Quick breaks down the details <a href="https://news.mobar.org/the-corporate-transparency-act-a-new-federal-reporting-obligation-for-business-entities/">in this Journal article.</a>President’s Page “Missouri teenagers need to see their future selves in the successful lawyers and judges in their own communities.” <a href="https://news.mobar.org/pipelines-and-public-confidence/">In her latest President’s Page,</a> Megan Phillips implores lawyers to get involved in civics education through The Missouri Bar and share information on the profession and legal system with youth.Ethics and witness preparation Witness preparation, if not done carefully, can lead to ethical violations. <a href="https://ow.ly/I2Xm50Qi0NU">Here,</a> Nancy Ripperger with OCDC discusses what's ethical - and what crosses the line - when it comes to counseling witnesses.Writing it Right In the September/October 2023 issue, Doug Abrams concluded his final “Writing it Right” column. <a href="https://news.mobar.org/thank-you-prof-abrams/">In this piece,</a> Scott Robbins, Journal of The Missouri Bar Editorial Board Chair, offers his appreciation to Prof. Abrams and reflects on the legacy he leaves.Practice management As year-end approaches for 2023, taxes are front of mind for many Missouri lawyers. In his regular <a href="https://news.mobar.org/year-end-tax-planning-for-2023/">“Taxes in Your Practice” column,</a> Scott Vincent offers some helpful considerations for both individuals and business owners.]]></description><category><![CDATA[molawyers,journal]]></category>
<pubDate>Tue, 12 Dec 2023 15:41:00 -0600</pubDate>
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<title>President's page: Pipelines and public confidence</title>
<link>https://news.mobar.org/pipelines-and-public-confidence/</link>
<guid>https://news.mobar.org/pipelines-and-public-confidence/</guid><pp:caseid>613679</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/8658c6d6-ba15-4c10-8b95-79de12c06fde/1920_meganphillips-2023.jpg?10000">Megan Phillips, Missouri Bar presidentVisit any high school classroom and it starts the same way.  Who here believes in fairness? All hands shoot up. Who is good at arguing? Same. Who likes to solve problems? Hands. Who likes to help people? Hands. Ok, well, so far, you’re all future lawyers. Now, who feels passionate about human rights? Hands. Who likes science and technology? Hands. Who wants to start a business? Work for a business? Protect children? Resolve disputes? Right wrongs? Serve your community?  Great news! You’re all lawyers! Because no matter where your strengths and interests lie, there’s a place for you in the legal profession. Am I right? I mean, how many lawyers do you know whose specialties require skill sets vastly different than your own? We have a big professional tent! But we’re falling short on filling it. Without access to counsel, bad things happen to everyday people, and citizens become disillusioned with the entire system. This is bad for democracy. In his speech at The Missouri Bar Annual Meeting and Judicial Conference in 2022, then-Chief Justice Paul Wilson argued that only by expanding the size and composition of our bar can we improve the credibility of our profession, public confidence in the legal system, and respect for the rule of law.  Indeed, nationwide, bar organizations face demographic challenges that hinder access to justice and public trust in the Third Branch.   On my recent visit to the 9th Judicial Circuit, lawyers expressed concern about the declining rates of lawyers who practice in rural areas while confirming that there’s a good living to be made in small communities. So why aren’t there more lawyers setting up shop on Main Street?   The answer came from a high school guidance counsel at our dinner table. The average teenager knows exactly nothing about lawyers or the legal system beyond what they see on TV or experience in their own lives (often traumatically). Many of these students plan to stay and work in their hometowns after graduation, but they might not envision or can’t even conceptualize a career in the law.   Some of our sister states have piloted loan forgiveness programs to entice new graduates into underserved areas. But, lacking ties to the community, these lawyers rarely stay past the contract term. The alternative is obvious. We must grow our own, right from their roots, starting in high school.  Missouri teenagers need to see their future selves in the successful lawyers and judges in their own communities. On another front, our profession is still far less diverse than the public we serve. The Missouri Bar Special Committee on Lawyers of Color recognized that we must actively fill the pipeline by recruiting students of color starting in high school. How can we expect a diverse public to trust a homogenous institution? And we can’t evolve as a profession without more diverse perspectives at the table. Judge Wilson urged us to take personal responsibility for recruiting the next generation of lawyers. I join his plea. Countless among you have expressed a desire to increase your involvement in the bar. I submit to you that high school outreach through the bar’s Citizenship Education Program could have the greatest impact within and beyond the profession. This spring, dozens of Missouri teens are expected to gather in Columbia for Show Me the Constitution, an annual competition that asks students to consider challenging constitutional issues and debate them in front of volunteer judges – many of whom are lawyers. This is just one example of how the bar is investing in our youth and how you can be involved in that effort. Teenagers give me hope for the future. They are smart, savvy, ambitious, curious, and hilarious. Above all, they want to make a difference. We must engage with these promising young people and show them the potential for self-realization in service to the Third Branch and our democracy. So here is your charge: Contact the nearest high school and offer to visit a social studies class to talk about the legal system and careers in the law. You might inspire a teenager to think about law school. And just by showing up you will dispel misconceptions and instill greater confidence in the legal system. Let’s shape the future. ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 11 Dec 2023 14:56:00 -0600</pubDate>
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<title>Executive summary: Good is all around</title>
<link>https://news.mobar.org/good-is-all-around/</link>
<guid>https://news.mobar.org/good-is-all-around/</guid><pp:caseid>613870</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/1920_mischabufordepps.jpg?10000">Mischa Buford-Epps, Executive Director of The Missouri Bar<img src="https://content.presspage.com/uploads/2361/e2259e86-7e70-4083-8b89-258eefbd4a38/1920_bythenumbers.jpg?10000">This season is always a reminder to pause and reflect on all we have to be thankful for. For me and The Missouri Bar staff, that includes you – Missouri’s lawyers.In 2023, you have demonstrated on multiple occasions the passion you have for the profession and your commitment to helping your colleagues and others in your community.This year, we convened at meetings and CLEs – both virtually and in person – to exchange ideas and build connection. We welcomed hundreds of new lawyers into our fold and continued outreach to law students in our state. We shared valuable resources with Missouri’s teachers, students, and adult citizens and schools, including lesson plans, Juror Appreciation Week materials, and free legal guides and forms. We launched new public service announcements that highlight the valuable contributions of lawyers. And, together, we navigated the practical effects of implementing expanded remote access to Case.net filings.All of these accomplishments help fulfill our charge to improve the legal profession, the administration of justice, and the law on behalf of the public. Yet none of this could have happened without the contributions of so many.Behind our numerous activities are lawyers contributing their time and talent to present to peers, teach students, edit content, develop programming, serve as mentors, and so much more. The bar has a storied history of lawyers stepping up to serve and lead our board, sections, and committee, do pro bono work, and share information. Today, that group of volunteering lawyers is more diverse and representative of the population than ever before. See the chart below highlighting a handful of key stats from this year.By volunteering your time, you define how the bar functions, you impact your fellow lawyers, and you shape how the public perceives our legal profession. Just flip through this issue or follow us on social media and you’ll see examples of how this is being done in real time. I encourage you to consider being more involved in The Missouri Bar in 2024. Take a look at the many opportunities listed on MoBar.org.In a world punctuated by chaos, it sometimes might feel easier to focus on the bad. I challenge you to instead focus on the good around you, this season and every day.Thank you for all you do!With appreciation, Mischa ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 11 Dec 2023 13:54:00 -0600</pubDate>
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<title>Thank you, Prof. Abrams</title>
<link>https://news.mobar.org/thank-you-prof-abrams/</link>
<guid>https://news.mobar.org/thank-you-prof-abrams/</guid><pp:caseid>613652</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[Scott Robbins practices in Poplar Bluff at Kennedy, Kennedy, Robbins & Yarbro, LC. He is chair of the editorial board for the Journal of The Missouri Bar.“Thank you.”Two words, one sentence.Thank you is always easy to say, is almost always appropriate, and sadly, is not said often enough.There are times, however, when a mere thank you doesn’t seem to be appreciative enough. This is one of those occasions, as I have been asked to say “thank you” to my friend, Prof. Douglas E. Abrams, for his 24 years of service to the Journal of The Missouri Bar. Prof. Abrams chaired the editorial board of the Journal of The Missouri Bar for 21 years, and I am privileged to be following in his footsteps.I first met Prof. Abrams through a phone call arranged by David “Duke” Snyder, the ice hockey coach at Wesleyan University, in Middletown, CT. I was a senior, looking to get into Mizzou for law school. Coach Snyder put me in touch with Prof. Abrams. That phone call began a wonderful relationship that we both, as history majors, refer to as the “WPA” or “Wesleyan Protective Agency.” The relationship deepened through my work as Prof. Abrams’ research assistant on his book, “The Law of Civil RICO,” and through my time reading every article published on the O.J. Simpson trial to prep him for his radio appearances in mid-Missouri as a legal expert about the historic trial.Prof. Abrams joined the University of Missouri School of Law faculty in 1989. In the past 34 years, he has written or co-written six books. From the book royalties, he created the Happiness for Health program, a permanent endowment that provides toys, stuffed animals, games, and parties for sick and injured children at the MU Children’s Hospital. The U.S. Supreme Court has cited his law review articles in four decisions. His writings have been downloaded worldwide more than 50,000 times, many of which have appeared in the pages of this publication. The September/October edition of his “Writing it Right” column was his last contribution to the Journal of The Missouri Bar. This series of columns has inspired lawyers to make legal writing informative, persuasive, and enjoyable to read.Prof. Abrams is not merely a professor; he is a fantastic teacher. He has the unique ability to make difficult subjects enjoyable to learn. He is even more than a fantastic teacher, however, as his role has been more of a mentor and a source of inspiration to his students. Prof. Abrams’ commitment to the growth and success of his students is unwavering. His influence on my life, and the lives of countless others, extends far beyond our time together in the classroom. He is always willing to provide guidance and to assist in the development of his students’ legal careers.Beyond the academia, he has given tirelessly and unselfishly to thousands of children through coaching youth ice hockey. Prof. Abrams was instrumental in creating the first organized youth hockey teams in mid-Missouri. Many people, meeting Prof. Abrams through the sport that he played as a youth and collegiately, never even knew that he was a lawyer. What they saw was the same thing I have been privileged to see - a kind, compassionate, and genuine man, dedicated to helping others. Prof. Abrams exhibited these character traits by teaching Missouri children a love for the sport hockey. More importantly, he placed an emphasis on sportsmanship and life skills that were useful off of the ice. These character traits are different from what most non-lawyers expect to see in an attorney. The legal profession is often mischaracterized as one filled with people who are only in the profession to make money. Prof. Abrams reminds everyone, lawyer and non-lawyer alike, that we are here to serve others first. His is, and remains, a life well-lived. Myself, and others, look forward to the next chapters of his life and to the opportunity for a deeper friendship.Thank you seems to be the very least of words that could be said to Prof. Abrams for his remarkable career and contributions to the legal profession. Hopefully, they are enough. ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Fri, 08 Dec 2023 10:31:00 -0600</pubDate>
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<title>Year-end tax planning for 2023</title>
<link>https://news.mobar.org/year-end-tax-planning-for-2023/</link>
<guid>https://news.mobar.org/year-end-tax-planning-for-2023/</guid><pp:caseid>613510</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[As year-end approaches for 2023, it is important to consider tax planning. Individual taxpayers will want to review applicable tax rates, the standard deduction, limits on itemized deductions, and multiple other issues. Businesses should review corporate tax rates, limits on business deductions, increased expensing, and first-year depreciation for some assets. The deduction for qualified business income also continues to impact individuals and their businesses. This article outlines several individual and business planning issues to consider before year-end. These items will not apply in every situation, and taxpayers should adjust their planning for their circumstances, as well as monitoring legislation that impacts planning matters. Year-end planning for individuals <ul><li>Consider the expanded standard deduction, eliminated personal exemptions, and limits on itemized deductions. For 2023, the basic standard deduction is $27,700 for joint filers, $20,800 for heads of household, and $13,850 for singles and married taxpayers filing separately. For taxpayers either 65 or older or blind, there are additional standard deductions. Many itemized deductions remain either reduced or eliminated. So, unless allowable medical deductions (as limited by 7.5% of adjusted gross income, or AGI), allowable state and local taxes (as limited), allowable charitable deductions, interest deductions on qualifying residence debt, and other allowable itemized deductions exceed the standard deduction, taxpayers may find that the increased standard deduction provides more tax benefit. For taxpayers with timing flexibility, there may also be an incentive for “bunching” allowable itemized deductions into one year and using the standard deduction in other years. </li><li>Have an employer increase withholding of state and local taxes (or pay estimated tax payments of state and local taxes) before year-end for deduction of those taxes this year. This can be beneficial if a taxpayer expects to itemize deductions this year and doing so will not cause state and local tax deductions to exceed the applicable limitation. </li><li>Plan for the 3.8% tax on unearned income. This surtax is 3.8% of net investment income (NII) that exceeds modified adjusted gross income (MAGI) thresholds. Year-end planning for the 3.8% surtax depends on estimated MAGI and NII. Some taxpayers may want to defer additional NII until next year, some may want to reduce MAGI other than NII, and some may be able to minimize both NII and other MAGI. </li><li>Consider the additional 0.9% Medicare tax. This tax applies to individuals receiving a combination of wages with respect to employment and self-employment income exceeding applicable thresholds. Employers must withhold the additional Medicare tax from wages in certain circumstances. Self-employed persons must include it in estimated tax payments, and some employees may need more withholding to cover the tax. </li><li>Accelerate income into this year in cases where a taxpayer’s marginal tax rate is expected to be lower this year than it will be next year due to economic conditions or expected changes in filing status or applicable rates. Postponing income can produce savings for taxpayers who expect to be in a lower tax bracket next year. </li><li>Consider lower long-term capital gain rates on sales of assets held for more than one year. Depending on taxable income levels, taxpayers may want to utilize these lower rates for capital gain sales and avoid selling capital assets with offsetting losses that reduce the benefits of the lower rates. The reduced rates apply to adjusted net capital gain to the extent that this amount, when added to regular taxable income, does not exceed certain thresholds based on filing status. So, analysis of taxable income, potential capital gains, and other applicable taxes is required to determine the best combination. </li><li>Consider retirement plan contributions, including catch-up contributions of additional amounts for taxpayers 50 and older. </li><li>Remember that retirement plan distributions may be subject to a 10% early withdrawal tax penalty for taxpayers that are not at least 59 ½. There are certain exceptions to this penalty, including a limited qualified birth or adoption distribution. </li><li>Review required minimum distributions (RMDs) from retirement accounts. RMDs are the minimum amounts that must be withdrawn from qualified retirement plan accounts beginning at age 72 for prior years and then beginning date at age 73 for taxpayers reaching age 72 after Dec. 31, 2022. Participants who are still working and making contributions to an employer-sponsored retirement account also may be able to further delay RMDs on that account. Taxpayers who fail to take RMDs can be subject to a substantial excise tax on the required amounts that are not withdrawn. </li><li>Consider making charitable donations from traditional IRAs. Qualified charitable distributions are made directly to charities, and the amount is not included in gross income or itemized deduction calculations and limits. In addition, the qualified charitable distribution may reduce RMDs when applicable. Taxpayers can plan for this benefit by maximizing contributions to traditional IRAs with amounts that may later be used for qualified charitable distributions. </li><li>Consider a Roth IRA conversion. A taxpayer that would prefer a Roth IRA can convert traditional IRA investments into a Roth IRA if eligible. A conversion will increase AGI for this year, so taxpayers should consider the impact on other AGI tax calculations. </li><li>For taxpayers eligible to make health savings account (HSA) contributions, consider HSA contributions before the end of the year. HSA contributions may be deductible from AGI, so the benefits could be available even if a taxpayer does not itemize deductions. </li><li>Increase the amount set aside for next year in a flexible spending account (FSA) if the taxpayer did not set aside enough for this year. Earnings set aside in an FSA allow payment of medical and dental bills with pre-tax earnings. </li><li>Complete annual gift tax exclusion gifts before the end of the year to save gift and estate taxes. For 2023, taxpayers can give $17,000 each to an unlimited number of individuals but cannot carry over unused exclusions from one year to the next. These transfers also may save family income taxes where income-earning property is given to family members in lower-income tax brackets who are not subject to tax at their parents’ rates (kiddie tax). </li><li>Consider education deductions and other credits. Tax-free distributions from § 529 qualified tuition programs of up to $10,000 are allowed for higher education expenses, which has been expanded to include elementary or secondary public, private, and religious schools, as well as expenses for participation in certain apprenticeship programs and limited amounts of qualified education loan repayments. For taxpayers under certain income thresholds, there are also several credits and deductions available and limited student loan interest may be deductible. Student loan forgiveness in 2023 should generally be excludible from income for federal tax purposes but may result in state or local income taxes. </li><li>Consider home-related tax provisions. Working from home continues to be a significant consideration for many taxpayers. Self-employed workers and business owners may be able to deduct related expenses, although these would not be deductible for employees. Mortgage interest is limited to the level of acquisition indebtedness depending on when the home was acquired ($750,000 for homes acquired after Dec. 16, 2017; $1,000,000 for homes acquired before that date), but mortgage interest allocable to the portion of a home used to operate a business is not subject to this limitation. Interest on home equity indebtedness may be deductible to the extent the debt was used to buy, build, or substantially improve the home. Gain of up to $500,000 for married taxpayers ($250,000 for other taxpayers) on the sale of a home is excluded from income, but the portion of the home used for business or rented reduces this exclusion from gain. Discharges of qualified principal residence indebtedness in 2023 are not included in gross income. </li><li>Consider clean energy credits. Clean energy credits available in 2023 include residential energy property credits and vehicle related credits. Eligibility for property credits depends on the improvements made, annual limits, and/or applicable percentages. Vehicle credits vary by date of acquisition, battery size, and manufacturer eligibility, which can be impacted by total qualifying vehicles sold and place of final assembly. </li></ul> Year-end planning for business owners <ul><li>Consider the qualified business income deduction for non-corporate taxpayers of up to 20% of qualified business income from a domestic business operated as a sole proprietorship, partnership, LLC taxed as a partnership, or S corporation. For 2023, the deduction may be limited (with a phase-in for the limitation) if taxable income is over $362,400 for married couples filing jointly or $182,100 for other filers. These deduction limitations may apply depending on whether the taxpayer has a service-type trade or business such as law, accounting, health, or consulting, or whether the trade or business meets W-2 wage and qualified property (like machinery and equipment) requirements. Because there are taxable income thresholds and phaseouts for certain taxpayers, there may also be significant tax savings from deferring income or accelerating deductions into a particular year, depending on the taxpayer’s circumstances. Similarly, a taxpayer may be able to increase the deduction available by increasing W-2 wages or qualified property before year-end. </li><li>Consider making expenditures before year-end that qualify for §179 business property expensing. For tax years beginning in 2023, the expensing limit is $1,160,000 for property placed in service this year, reduced dollar for dollar for property placed in service over $2,890,000. This expensing is available for most depreciable property and qualified improvement property, which generally includes interior building improvements, and roofs, HVAC, fire protection, alarm and security systems. Importantly, property acquired and placed in service before year-end is eligible for full expensing for the year. </li><li>Consider 80% first year bonus depreciation for new and some used machinery and equipment purchased and placed in service. Like expensing, bonus depreciation is available for the full year even if the asset was placed in service late in the year, so year-end purchases may receive a full first year bonus write-off. Notably, bonus depreciation is being phased out, with 80% available in 2023, 60% in 2024, 40% in 2025, 20% in 2026, and elimination in 2027. </li><li>Consider changing to the cash method of accounting, rather than the accrual method. Small businesses with less than $29 million of average annual gross receipts over a three-year period may be eligible for the cash method if they meet other requirements. Depending on the business, the cash method of accounting may allow more flexibility in timing income and deductions. </li><li>Consider timing for a debt-cancellation event, including whether lower effective tax rates are expected this year or next year.  </li><li>Consider timing for disposition of a passive activity to allow a deduction for suspended losses to reduce current year taxable income. </li><li>Review partnership and S corporation basis to make sure it is sufficient to deduct losses in current and future years. </li><li>Review S corporation salaries to ensure that shareholders receive reasonable wages. The Internal Revenue Service often audits S corporations that pay all profits as distributions without accounting for reasonable wages to shareholders for their work in the business. </li><li>Consider setting up a retirement plan and health insurance plan. These plans can provide key benefits for retention of employees and for owners of a business. </li></ul>Taxpayers should carefully consider these matters, taking their specific circumstances into account and watching for continuing tax law changes. As noted, legislation is always possible which could provide additional considerations for year-end planning, including possible change]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 07 Dec 2023 14:52:00 -0600</pubDate>
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<title>In Memoriam, November - December 2023</title>
<link>https://news.mobar.org/in-memoriam-november---december-2023/</link>
<guid>https://news.mobar.org/in-memoriam-november---december-2023/</guid><pp:caseid>613649</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[Jerry Courtney Bowlin, age 81, of Kansas City, on Feb. 1, 2023. Bowlin was admitted to The Missouri Bar in 1968.Anita L. Burns, age 54, of Kearney, on Aug. 29, 2023. Burns was admitted to The Missouri Bar in 1987.Howard K. Butler Jr., age 54, of Sunrise, FL, on Nov. 21, 2022. Butler was admitted to The Missouri Bar in 1995.Hon. James F. Davis, age 74, of Shawnee, KS, on Nov. 13, 2022. Davis was a partner with Lewis Rice & Fingersh LLC before serving as a judge on the Kansas District Court for 26 years in Johnson County. He was admitted to The Missouri Bar in 1975.Thomas F. Fisher, age 80, of Kansas City, on Oct. 29, 2023. Fisher earned his J.D. from the University of Missouri School of Law and was admitted to The Missouri Bar in 1967. After a stint in the Jackson County prosecutor’s office, Fisher joined the law firm of Shughart Thomson & Kilroy. Fisher served in the U.S. Navy.Hon. Kathleen Forsyth, age 76, of Kansas City, on Oct. 13, 2023. Forsyth practiced at several local firms, including Shughart Thompson & Kilroy as a partner. In 2003, she was appointed as circuit judge to the 16th circuit court. She was a judge of the probate division before retiring and serving as a contributing writer to Thomson Reuters. Forsyth attended the University of Missouri-Kansas City School of Law and was admitted to The Missouri Bar in 1980.Hon. Robert T. Hart, age 84, of St. Louis, on Aug. 9, 2023. Hart attended Saint Louis University School of Law and was admitted to The Missouri Bar in 1963. Hart practiced workers’ compensation law and was later a judge.Hon. Alan Harriss, age 75, of Ironton, on July 30, 2023. Harriss earned his J.D. from Chicago-Kent College of Law and was admitted to The Missouri Bar in 1975. He practiced law in the Arcadia Valley the majority of his adult life, including as assistant prosecuting attorney and prosecuting attorney. Harriss served as associate circuit court judge for Iron County from 1991 to 2000.Robert L. (Bob) Jackson, age 82, of Clayton, on Feb. 11, 2023. Jackson attended New York University Law School, where he later taught. After clerking in the U.S. tax court, Jackson practiced tax law in St. Louis for over 50 years. He was admitted to The Missouri Bar in 1969.Russell Dan Jacobson, age 93, of Kansas City, on July 6, 2023. Jacobson was admitted to The Missouri Bar in 1959.Hon. Kent E. Karohl, age 88, of Lady Lake, FL, on Sept. 20, 2023. In addition to private practice, Karohl served as a judge for the Missouri Court of Appeals, Eastern District, from 1982 to 2000. He earned his J.D. from the University of Chicago and was admitted to The Missouri Bar in 1958.Paul A. Kirk, age 81, of Springfield, on July 20, 2023. Kirk earned his J.D. from Saint Louis University School of Law and was admitted to The Missouri Bar in 1972. He served in the U.S. Army.Hugh D. Kranitz, age 72, of St. Joseph, on Aug. 13, 2023. Kranitz attended the University of Puget Sound Law School in Seattle, WA, before returning to St. Joseph to join the family firm of Kranitz & Kranitz. He was admitted to The Missouri Bar in 1975. Kranitz served in the U.S. Army.James Dennis Laster, age 75, of Jacksonville Beach, FL, on May 23, 2023. Laster served in the U.S. Navy and was a department head at the University of Central Missouri before attending the University of Missouri-Kansas City School of Law and being admitted to The Missouri Bar in 1985. He served as Cass County prosecuting attorney and municipal judge for Knob Noster, among other roles.Hon. Arthur Litz, age 100, of St. Louis, on Aug. 19, 2023. Litz earned his J.D. from Harvard Law School and practiced in St. Louis until 1975, when he was appointed as a circuit judge. He retired from the bench in 1993 before serving as a mediator until 2013.Hon. Reginald (Regi) Lynn Martin, age 63, of Springfield, on Feb. 16, 2023. Martin most recently practiced family law and served as a Greene County circuit judge. She obtained her J.D. from Southern Methodist University and was admitted to The Missouri Bar in 2007.James L. McMullin, age 96, of Raytown, on Aug. 29, 2023. McMullin served in the U.S. Navy and the U.S. Marine Corps, including as a legal officer trying cases as both prosecutor or defense counsel in general court martials both in Korea and Japan. McMullin attended the University of Missouri-Kansas City and practiced law for over 60 years.Jerome E. Murphy, age 75, of Kansas City, on May 20, 2023. Murphy was admitted to The Missouri Bar in 1973 and practiced with Martin Pringle Attorneys at Law.Lee M. Nation, age 71, of Flagstaff, AZ, on Sept. 23, 2023. Nation earned his J.D. from the University of Missouri-Kansas City and joined The Missouri Bar in 1975. Nation argued before the Supreme Court of the United States and practiced criminal defense with Nation and Curley. He later practiced in Arizona and taught at Northern Arizona University.John Russell O’Malley, age 75, of Kansas City, on Oct. 2, 2023. O’Malley attended Saint Louis University School of Law and was admitted to The Missouri Bar in 1973. In addition to private practice, he served as assistant city counselor in St. Louis; a prosecutor in Grandview; an instructor at several colleges; on the circuit court of Jackson County; and as a federal U.S. immigration judge. O’Malley served in the U.S. Army Reserve Judge Advocate General’s Corps.Hon. Wilbur T. Osborne, age 106, of Grant City, on Aug. 20, 2023. Osborne served in the U.S. Navy before attending the University of Missouri School of Law, though he took two Naval Reserve cruises during summer breaks. Osborne was admitted to The Missouri Bar in 1949. He worked for Farmers Insurance Group until 1978, at which point he began an eight-year term as associate circuit judge in Worth County.Gene Overall, age 74, of St. Louis, on Aug. 21, 2023. Overall earned his J.D. from Saint Louis University School of Law and was admitted to The Missouri Bar in 1980. He practiced law with St. Louis County and later served as the sheriff of St. Louis County. Overall also taught at Lindenwood University.Scott W. Owens, age 58, of Kansas City, on Sept. 30, 2023. Owens earned his J.D. from the University of Missouri-Kansas City School of Law, was admitted to The Missouri Bar in 1992, and practiced bankruptcy law at Owens Law Office.James Kenneth Pendleton, age 92, of San Antonio, TX, on July 19, 2023. Pendleton was admitted to The Missouri Bar in 1959.Hon. Anthony J. Romano Sr., age 91, of Independence, on Sept. 12, 2023. Romano was in private practice for 20 years before serving as a judge on the Jackson County circuit court. Romano served as assistant Jackson County prosecutor, assistant Jackson County counselor, and assistant Missouri attorney general. He earned his J.D. from the University of Missouri-Kansas City and was admitted to The Missouri Bar in 1956.John L. Rooney, age 74, of St. Louis, on Oct. 2, 2023. Rooney attended Fernando Valley College of Law and was admitted to The Missouri Bar in 1981. He practiced personal injury and general liability law, specializing in representing members of the Brotherhood of Locomotive Engineers under the Federal Employers' Liability Act.Melvin A. (Mel) Saferstein, age 83, of Huron, OH, on April 27, 2022. Saferstein earned his J.D. from the University of Kansas and was admitted to The Missouri Bar in 1966. He practiced criminal law briefly in St. Joseph and was most recently with Smith & Lehrer Law Firm.Robert Louis Sweney, age 95, of St. Louis, on Oct. 19, 2023. Sweney earned his J.D. from Saint Louis University School of Law and was admitted to The Missouri Bar in 1951. He practiced banking law, most recently as a partner at Bryan Cave.Merrill R. Talpers, age 91, of Kansas City, on Oct. 4, 2023. Talpers worked for the Internal Revenue Service and in private practice before forming Olsen & Talpers. He served with the Judge Advocate Corps at the Wichita Falls Air Force Base and was admitted to The Missouri Bar in 1964.Lloyd J. (Jack) Vasquez Jr., age 76, of St. Louis, on Jan. 12, 2022. Vasquez earned his J.D. from Saint Louis University School of Law and worked with the U.S. Equal Employment Opportunity Commission. He was admitted to The Missouri Bar in 1983.Sandra Lee Wallace, age 64, of Columbia, on Oct. 13, 2023. Wallace attended the University of Missouri School of Law and was admitted to The Missouri Bar in 1984. Wallace was most recently employed with the office of the general counsel in the Social Security Administration’s Kansas City Region.Hannah Woofter, age 34, of Kansas City, on Oct. 29, 2023. Woofter received her J.D. from Washburn University School of Law and was admitted to The Missouri Bar in 2018. She practiced civil litigation, family law, insurance defense, and general liability.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 07 Dec 2023 10:11:00 -0600</pubDate>
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<title>How to make web meetings work in 2024</title>
<link>https://news.mobar.org/how-to-make-web-meetings-work-in-2024/</link>
<guid>https://news.mobar.org/how-to-make-web-meetings-work-in-2024/</guid><pp:caseid>613509</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/1b0dc119-5839-4d65-8930-098588ebdc64/1920_jeffreyschoenberger.jpg?10000">Jeffrey R. Schoenberger is a lawyer and senior consultant at Affinity Consulting Group. Schoenberger specializes in practice management advisory services, including content development, CLE presentations, and member consultations. He is also Affinity’s designated Apple expert. Schoenberger received a B.A. in history from Yale University and J.D. from the University of Virginia.Virtual meetings remain alive and well even with the official end of the pandemic. I expect they’ll be with us indefinitely. Web meetings are the collaboration equivalent of watching a Hollywood blockbuster at home. The chairs are more comfortable, you can rewind, use subtitles for dialog, and pause for bathroom breaks, and, hopefully, the floors aren’t sticky. But the picture is smaller, the sound lacks punch, and the popcorn doesn’t have the same flavor. With web meetings, there’s no commute, no dressing up, and recordings and transcripts are just a button press away. But it’s easy for email or instant messages to distract you, technical glitches and gremlins may raise their heads, and there is none of the spontaneous interaction of an in-person event.  You have likely attended dozens – if not hundreds – of web meetings over the last three years. Whether one-on-one, team meetings, trainings, or CLEs, they all function with the same core principles and tools.  Both Microsoft 365 and Google Workspace include tools to conduct online meetings, trainings, and webinars. For Microsoft subscribers, look into <a href="https://www.microsoft.com/en-us/microsoft-teams/group-chat-software" target="_blank">Microsoft Teams</a>. For Google subscribers, check out <a href="https://meet.google.com/" target="_blank">Google Meet</a>. Besides these two behemoths, there’s also <a href="https://www.webex.com/" target="_blank">Webex</a>, popular with governments and court systems; <a href="https://www.goto.com/" target="_blank">GoTo</a>, which offers products for meetings, webinars, and trainings; and of course, <a href="https://zoom.us/" target="_blank">Zoom</a>, the pandemic darling that got even grandma and grandpa doing web meetings. Visit The Missouri Bar’s Law Practice Management (LPM) website and review the <a href="https://mobar.org/site/Lawyer_Resources/Practice-Management/Checklists___Charts/site/content/Lawyer-Resources/Law_Practice_Management/Checklists___Charts.aspx?hkey=711f46bb-6d6c-40fc-a090-33a0ab42ac33" target="_blank">Web Meeting and Video Conferencing Services Feature Comparison Chart</a> to learn more about each vendor. Irrespective of your platform choice, the products share similar fundamental capabilities and mechanics. Think beyond the basics and consider your client base when deciding on a platform. Like many competitive markets, differences exist mainly at the margins, but the differences might be essential for you. They all provide meeting scheduling, screen sharing, and call-in numbers. But, for example, Google Meet and Zoom can run on a computer through a web browser, so no client needs to install the software. If you work primarily with corporate clients, it’s likely Teams is already installed and that your client is familiar with it.  As for hardware, all vendors above have Windows, Mac, iOS, and Android applications. But caveats exist. For example, Microsoft Teams will run in a Windows web browser, like Edge, but not in Safari on a Mac, requiring users to download and install Teams for Mac. Beyond such oddities, nearly all webcams and audio devices will work with any web meeting platform. In searches for audio devices and, to a lesser extent, webcams, you may see mentioned that a particular product comes in both Microsoft and Unified Communication (UC) certified versions. Unless you work in a company or firm that locks down your computer to prevent software installation by anyone outside IT, the UC version likely meets your needs. For webcams, my default vendor is <a href="https://www.logitech.com/en-us/products/webcams.html" target="_blank">Logitech</a>. I currently use a predecessor model of their <a href="https://www.logitech.com/en-us/products/webcams/4kprowebcam.960-001390.html" target="_blank">4K Pro Webcam</a>, with which I’ve been satisfied. However, 4K video probably exceeds your typical web meeting needs unless you have high-speed upstream internet or record videos. To save money, look to the <a href="https://www.logitech.com/en-us/products/webcams/brio-500-webcam.960-001427.html" target="_blank">Brio 500</a> or the C920s Pro HD Webcam. The Brio 500 includes high dynamic range color, an adjustable field of view, and is certified for Google Meet, Microsoft Teams, and Zoom. If months or years of work from home lead you to contemplate a “virtual-first” or “virtual-only” firm, whether for convenience or just to reduce overhead costs, subscribing, mastering, and seamlessly employing web meetings will be a critical component of that transition. Want to hire an associate who lives downstate but are not sure how you will be able to collaborate? Web meetings are a possible solution. Nearly all providers offer free versions or at least free trials. Try one or many. Being comfortable with your video tools leads to less stress, hopefully turning “yet another” web meeting into just a meeting.  ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 06 Dec 2023 14:40:00 -0600</pubDate>
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<title>Witness preparation and counseling: What’s ethical – and what crosses the line</title>
<link>https://news.mobar.org/witness-preparation-and-counseling-whats-ethical--and-what-crosses-the-line/</link>
<guid>https://news.mobar.org/witness-preparation-and-counseling-whats-ethical--and-what-crosses-the-line/</guid><pp:caseid>613508</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[<h2>Author</h2>Nancy Ripperger is staff counsel for the Office of Chief Disciplinary Counsel, where she has worked since 2003. As staff counsel, she investigates and prosecutes complaints brought against lawyers. Ripperger is a graduate of the University of Missouri School of Law. Prior to attending law school, she worked as a bank examiner for the Federal Deposit Insurance Corporation. After completing law school, Ripperger clerked for Hon. Ann K. Covington of the Supreme Court of Missouri and she also practiced law with a large firm for several years and handled commercial litigation.Careful and thorough witness preparation is a necessity for a lawyer who wants to put his or her best case before the trier of fact. This is because truth told badly can quickly lose a case. The list is endless as to the ways an unprepared witness can harm a case. For example: <ol style="list-style-type:decimal;"><li>An unprepared witness may make mistakes because the witness is nervous and is not thinking or listening carefully;   </li><li>Poor behavior upon the part of the witness, such as being argumentative or evasive, may affect the witness’ credibility;   </li><li>An inappropriately dressed witness may make a poor impression on the trier of fact; and </li><li>An unprepared witness may have trouble handling cross examination.   </li></ol>Typical witness preparation will often include the following: <ol style="list-style-type:decimal;"><li>Discussing deposition or courtroom procedures, such as who will be attending, where the witness will sit, what the witness should bring with them, who will be questioning the witness, how the witness’s testimony will be recorded, etc.; </li><li>Advising the witness that he or she is under oath and must testify truthfully; </li><li>Discussing what the witness should do if there is an objection by opposing counsel; </li><li>Discussing with the witness how he or she should respond if he or she does not understand the question, does not know the answer to a question, or does not recall what occurred; </li><li>Suggesting proper attire, demeanor, and decorum for the witness; </li><li>Discussing the witness’ recollection of events;  </li><li>Explaining how the law applies to the events in question; </li><li>Reviewing relevant documents and physical evidence with the witness; </li><li>Rehearsing the witness’ possible testimony; and  </li><li>Discussing how the witness should handle cross examination questions. </li></ol>None of the above activities are inherently wrong or unethical. In fact, in order to provide competent representation, a lawyer must perform most, if not all, of these activities.i However, witness preparation, if not done carefully, can lead to ethical violations for the lawyer preparing the witness. The same holds true for certain tactics by the lawyer while the witness is testifying.  Improperly influencing a witness while preparing the witness to testify One of the major ethical concerns involving witness preparation is improperly influencing a witness’ testimony. Rule 4-3.4(b) provides that a lawyer shall not counsel or assist a witness to testify falsely. Similarly, Rule 4-3.3(a)(3) provides that a lawyer shall not knowingly offer evidence that the lawyer knows is false. Obviously these rules address the situations where a lawyer directly advises the witness to fabricate testimony or the lawyer knows the witness intends to testify falsely. It also includes more subtle conduct upon the part of the lawyer and often creates a tension between the lawyer’s duty as an advocate to present the best case possible and the truth finding function of the legal system. Below are some examples of witness preparation activities where a lawyer needs to be especially cautious. Providing the witness with the lawyer’s theory of the case is often done with key witnesses. It can help the witness understand what facts are important and relevant and streamline the witness’s testimony. However, the lawyer must avoid using this tactic, either intentionally or unintentionally, as a way to influence the witness’s testimony. For example, in In re Rios, the lawyer was representing the client in a slip and fall case.ii The client initially advised the lawyer that she had fallen on a church’s sidewalk. The lawyer visited the accident site and noticed that the church’s sidewalk was in good repair but the sidewalk across the street was badly cracked and uneven. At their next meeting, the lawyer explained to the client that the condition of the sidewalk where the fall occurred was critical to her having a viable cause of action. The lawyer then showed the client pictures of the undamaged church sidewalk and the cracked and uneven sidewalk across the street. The client then advised the lawyer that she had initially misspoken and she “had really fallen” on the sidewalk across the street. The court found that the lawyer’s actions were designed to exert undue influence upon the part of the client to testify falsely. How can a lawyer avoid this but still adequately prepare the witness to testify? There are several ways. First, the lawyer must emphasize to the witness the duty to tell the truth, including what responsibilities the lawyer has if he or she knows the witness is providing false testimony.iii Second, the lawyer should delay discussing the theory of the case until after the lawyer has discussed the witness’s recollection of the event.iv   Preparing witnesses in a group setting can be a time saver for the lawyer and can also allow the witnesses to get a complete picture of what occurred. Generally, a lawyer should avoid discussing facts and the legal theories in a group setting.v Even when the lawyer emphasizes to the witnesses that they must testify truthfully, the pressure to conform testimony to other witnesses’ stories can be overwhelming and may to lead to distorted testimony.vi    Rehearsing testimony with a witness has many benefits. It allows the lawyer to present evidence in an orderly manner and allows the lawyer to focus the witness on the key facts so that testimony does not wander off into extraneous matters. It also may make the witness feel more comfortable and confident about testifying. Often when rehearsing testimony with a witness, the witness will state things in a manner that the lawyer may not think best advances his or her case. Suggesting that a witness change his or her words when testifying may be permissible providing the lawyer is merely clarifying what the witness has expressed or “cleaning up the image” of the witness. For example, if a witness answers a question with technical terminology, it is permissible for the lawyer to suggest that the witness answer the question using layperson’s terms instead. It is also permissible that the lawyer suggest that the witness refrain from swearing or using other impolite words on the stand. Neither suggested modification changes the witness’ underlying testimony as to what occurred. This is in contrast to the situation where the lawyer suggests the use of certain words as a means of distorting the witness’ substantive testimony. Take, for example, a situation where an EMT is describing the condition of an accident victim. If the EMT states that the victim was exhibiting tachycardia it is permissible to suggest that the witness state that the victim was exhibiting a heart rate over 100 beats per minute. This does not change the substance of the witness’s testimony but makes it easier for a layperson to understand. Contrast this with the situation where the lawyer asks the witness if he has ever seen the defendant drive while intoxicated. The witness advises that he has never seen the defendant “appear intoxicated ” while driving but has seen the defendant have four or five drinks and then drive. The lawyer should not suggest that the witness answer the question by stating “No, I have never seen the defendant drive while intoxicated.” This changes the substance of the witness’s testimony.   Often when preparing a witness, a lawyer will find that the witness’s memory is fuzzy or even inaccurate about what occurred, especially if the lawyer is asking the witness to testify about events that occurred months or years earlier. It is permissible to refresh a witness’s memory by showing the witness relevant documents or by telling the witness about another witness’s recollection as long as the lawyer does not insist or suggest that the witness testify falsely to a material fact.vii Stated in a slightly different manner, a lawyer may attempt to persuade a witness that the witness’s initial version of the facts is incomplete or inaccurate if, and only if, the lawyer has a good faith basis for believing it and does not coerce the witness into changing his or her testimony.    If a witness’s memory is unclear on a topic and is not refreshed by viewing other evidence, it is permissible to advise the witness to answer a question by stating he or she does not recall. However, a lawyer should never suggest or instruct a witness to answer a question with “I do not recall” as a way to avoid harmful information surfacing.   Improperly influencing a witness while the witness is testifying The problem of improper witness influence is not confined to conduct in preparing the witness to testify. There are numerous ways a lawyer can improperly influence a witness while the witness is testifying. These ways include, but are not limited to, making improper objections, improperly instructing a witness not to answer a question, improperly requesting a break, improper use of errata sheets, and the often joked about situation where the lawyer kicks the witness under the table. The rise in remote testimony has increased the possible ways in which a lawyer can improperly influence a witness and has made the detection of such more difficult.    These improper tactics are seen more often during depositions as there is no judge present to stop the improper behavior. Often opposing counsel will not seek a protective order or file an ethics complaint unless the lawyer’s behavior is especially egregious. As a result, the unethical behavior often goes unchecked.   Improper objections can be used to influence a witness’s testimony. Many objections during a deposition are appropriate and necessary to preserve the issue at trial.viii However, objections can be used in an abusive manner to “mold” a witness’ testimony. A “speaking objection” is “one in which a lawyer objects to a question during deposition or trial in order to instruct, coach, or otherwise transmit information to the witness or factfinder.”ix  A typical (and often used) example of this occurs when, after the witness is asked a question, counsel for the witness interjects “if you recall.” This statement clearly indicates to the witness that the witness should respond with some statement indicating that he or she does not remember. Contrast that with the situation where the lawyer is certain the witness misspoke or obviously did not understand the question. In these situations, the lawyer can openly ask the witness to correct the answer.x Similarly, it is permissible for a lawyer to object when opposing counsel misstates the witness’s prior testimony.    Kicking the witness under the table or making obvious facial expressions at the witness when the lawyer dislikes the witness’s answer are just as problematic as “speaking objections.” The lawyer’s actions improperly alert the witness that he or she should change their testimony.   While it should be obvious, it is worth mentioning that while remote testimony is being taken, a lawyer should not surreptitiously communicate with the witness via texts or other means.   Instructing a witness to refuse to answer a question is impermissible influence on a witness unless the instruction is given on the basis of privilege or the question posed is abusive to the witness. If either of these is applicable, the objecting lawyer should state such when instructing the witness not to answer the question.xi   Requesting a break during a deposition is generally permissible as long as the purpose of the break is not to improperly provide answers to the deponent or to disrupt the flow of the proceedings.xii Requesting a break after a question has been asked but before the witness answers is very suspect.xiii During a hearing, a lawyer would not be allowed to confer with his or her witness before the witness answers a question. In similar fashion, a lawyer should not use this tactic during a deposition to coach the witness on the answer to the question.    Deposition errata sheets also can pose a problem. Some deponents, at the request of their lawyer, use errata sheets as a means of changing unfavorable testimony. As the court stated in Greenway v. International Paper Co., a deposition is not a “take home examination” and errata sheets should not be used to alter what a witness said under oath. xiv Otherwise, “if that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.”xv Suggesting that a witness make substantive changes to their testimony via the errata sheet is improper.xvi    Conclusion Witness preparation and counseling can be fraught with ethical perils if a lawyer is not careful. However, taking the following advice to heart will go a long way in ensuring a lawyer does not cross any ethical line.    While a discreet and prudent lawyer may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.xvii ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 06 Dec 2023 14:20:00 -0600</pubDate>
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<title>The Flag: Expert testimony, fee-splitting, and more</title>
<link>https://news.mobar.org/the-flag-expert-testimony-fee-splitting-and-more/</link>
<guid>https://news.mobar.org/the-flag-expert-testimony-fee-splitting-and-more/</guid><pp:caseid>613654</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><description><![CDATA[W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.CASEWORKER FOR MISSOURI DEPARTMENT OF SOCIAL SERVICES WAS ENTITLED TO OFFICIAL IMMUNITY Forester v. May, No SC99928 (Mo. banc 2023). Christina Forester appealed the circuit court’s judgment dismissing her petition for wrongful death of her granddaughter on grounds Crystal May is entitled to official immunity. Forester claimed the circuit court erred in sustaining May’s motion to dismiss Forester’s petition because the petition alleges facts that, if true, were sufficient to prove May breached her duty to perform the ministerial task of completing and emailing a form within 72 hours of beginning a child abuse investigation. The Missouri Supreme Court affirmed the judgement.i Forester claims the circuit court erred in dismissing her petition because May owed M.S. a ministerial duty to make a timely SAFE CARE referral and had no official immunity for her failure to do so in that she lacked any discretion about whether, when, or how to make such a referral.  In the opinion, the court noted “Official . . . immunity protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.”ii In addition, the court said it recognized “a narrow exception to the application of the official immunity doctrine-i.e., when a public officer fails to perform a ministerial duty required of him by law, he may be personally liable for damages caused.”iii The language of the Department of Social Services Child Welfare Manual granted May the discretion, after receiving a child abuse report: (1) to complete and email the form; (2) not to complete the form because “the child has already been seen; or (3) not to complete the form because “it is known the child will be referred to a local SAFE-CARE provider.”iv The court found that because there was ‘room . . . for variation in when and how’ May would respond to the reports of abuse, including whether to make a referral at all, her acts were not ministerial.v Therefore, the factual allegations of Forester’s petition establish May is entitled to official immunity and fail to establish the ministerial-duty exception to immunity applies.   EXPERT TESTIMONY DID NOT MEET RELIABILITY TEST Huett v. Branson, ED 110991 (Mo. App. E.D. 2023). Jessica Huett, the natural mother and Next Friend of J.H., appealed the judgment entered on the jury’s verdict finding that Kent D. Branson, M.D., (“Defendant”) was not liable for medical negligence in the delivery of Huett’s son, J.H. On appeal, Huett contended that the circuit court erred in permitting a biomechanical engineer to testify as an expert about the general and specific causes of J.H.’s injury. The Missouri Court of Appeal-Eastern District reversed the verdict.vi  In the opinion, it was noted that "[e]xpert testimony in civil cases is only admissible if it satisfies the evidentiary requirements of § 490.065.”vii The court has previously held that the “admissibility of expert testimony under [§] 490.065.2 requires simply that it be relevant and reliable and proffered by a qualified expert.”viii  Further, the court wrote, “Reliability is determined by considering whether the testimony is based on sufficient facts or data, reliable principles and methods and reliable application thereof.”ix  The causation opinion of the defendant’s expert was inadmissible because it was not based on sufficient facts and data about the particular delivery in this case and because she did not reliably apply her computer program to the particular facts of this case as required by § 490.065.   The specific causation testimony discussed above was not only outside the expert’s qualifications, but also was based on insufficient facts and unreliable methods. Her opinion that J.H. was more susceptible to brachial plexus injury was based solely on the fact that he incurred that injury. This circular reasoning is not only an insufficient factual basis for the conclusion about J.H.’s susceptibility, it is not a reliable method for reaching this conclusion. It does not appear to have utilized any method at all in violation of § 490.065.2(1)(c). Additionally, the expert’s conclusion that J.H.’s injury was due primarily to maternal forces is based on speculation and conjecture and lacks any application of her modeling to the facts of this case as required by § 490.065.2(1)(d). The expert’s computer simulation program was not a reliable method for analyzing this specific case and was not reliably applied to the facts of this case as required by § 490.065.2(1)(c)-(d). “An expert witness’s opinion must have a ‘rational basis,’ the court noted, “and be founded on substantial information, not ‘mere conjecture or speculation.’x  NO PRIVATE CAUSE OF ACTION CREATED BY STATUTE BARRING USE OF PUBLIC FUNDS ON A BALLOT MEASURE Sullivan v. City of University City, No ED111084 (Mo. App. E.D. 2023). Thomas Sullivan and David Harris appealed the circuit court’s judgment dismissing with prejudice their first amended petition for a declaratory judgment against University City and numerous individual respondents. The appellants argued their petition sufficiently stated a cause of action under § 115.646, which prohibits public officials from expending public funds to advocate for or against any ballot measure. Finding that the appellants do not have a private cause of action under § 115.646, the Missouri Court of Appeal-Eastern District affirmed the judgment.xi Appellants argued that the trial court erred in dismissing their first amended petition because they believe § 115.646 provides taxpayers as a protected class with a private right of action to sue to enforce its provisions. Theappellants maintained such a right must be implied for the statute to achieve its purpose because the statute prohibits both purposeful conduct, which constitutes a crime, and nonpurposeful conduct, which is prohibited but not criminalized.  In the opinion, the court noted, “We decline to depart from the general rule that, ‘when the legislature has established other means of enforcement, we will not recognize a private civil action unless such appears by clear implication to have been the legislative intent.’xii ‘[T]he legislature would have manifested its intent in like manner had it intended to create additional or alternative means of enforcement.’xiii Conversely, when the legislature does not manifest this intent, the designated agency has the exclusive right to sue.”xiv  The appellants’ suit concerns solely a violation of § 115.646, and the court found the appellants have not demonstrated taxpayers’ interests are not protected adequately by the remedies provided by the legislature.  The court added, “Appellants urge this Court to fashion a remedy ‘appropriate to further the purpose and ensure the effectiveness’ of section 115.646, citing American Eagle Waste Industries, LLC v. St. Louis County, 379 S.W.3d 813, 830 (Mo. banc 2012). Appellants contend, because taxpayers have a legally protected interest in the proper use and expenditure of tax dollars, they should be afforded a private right of action under section 115.646.” Appellants admitted that the legislature has provided a method by which the Secretary of State, upon the complaint of a citizen, may investigate a possible violation of § 115.646 under § 115.642. This is their remedy. The court noted, “Because Appellants’ petition did not demonstrate a clear indication of legislative intent to create a private cause of action under section 115.646, Appellants’ petition does not give rise to a cognizable cause of action.” xv  FEE-SPLITTING BETWEEN AN ATTORNEY AND A NONLAWYER IS PROHIBITED  Nationwide Transfer LLC v. Neally Law LLC, No SD37267 (Mo. App. S.D. 2023).  Nationwide Transfer had an arrangement with Neally Law, LLC, to assist Nationwide Transfer customers with release from their timeshares. After a few years, the relationship soured and both sides sued each other. Nationwide referred customers to the law firm and customers entered into a separate engagement agreement with the law firm for legal representation. At the successful conclusion of the matter, the law firm was to transfer earned legal fees into its operating account and remit two-thirds of those fees to Nationwide. Nationwide filed suit for an accounting. After a bench trial, the circuit court denied Nationwide’s claims, and held that the agreement to split fees is unenforceable under Missouri law (§ 484.150) and public policy. On appeal by Nationwide, the Missouri Court of Appeal-Southern District affirmed the judgment.xvi The court determined the appellants had no right to any portion of legal fees paid by its customers to the law firm under a legal representation agreement to which appellants were not a party. Missouri law, disciplinary rules, and firm public policy clearly forbid such fee-splitting arrangements between an attorney and a lay agency.xvii  The court noted that the inability to recover in law or equity on the basis of an illegal agreement has been a fixture for more than a century: If there be one principle of the law well settled, it is this: That a contract, expressed or implied, based on an illegal consideration, whether that  consideration appear on the face of the contract or be proved aliunde, cannot be enforced either at law or in equity; that the moment the illegality of the contract is disclosed the gates of legal and equitable relief and  remedy are at once shut against the party who seeks to enforce such a  contract.xviii  The court noted, “Appellants also cite general principles of equity and an out-of-state case to argue that equitable relief should provide a remedy in cases where an attorney consents to or drafts an illegal fee-splitting agreement with non-attorneys. As an intermediate court of appeal, we are limited in function and authority.xix . . . We are bound constitutionally to follow Miller, the most recent, controlling decision of the Supreme Court of Missouri. ”xx   ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Tue, 05 Dec 2023 10:37:00 -0600</pubDate>
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<title>Chief Justice Russell addresses Missouri lawyers during Annual Meeting</title>
<link>https://news.mobar.org/chief-justice-russell-addresses-missouri-lawyers-during-annual-meeting/</link>
<guid>https://news.mobar.org/chief-justice-russell-addresses-missouri-lawyers-during-annual-meeting/</guid><pp:caseid>613085</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><pp:summary><![CDATA[Mary Rhodes Russell, chief justice of the Supreme Court of Missouri, delivered this address during the opening luncheon of the joint Annual Meeting of The Missouri Bar and the Judicial Conference of Missouri Sept. 14, 2023, in Kansas City.  ]]></pp:summary><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/afcea331-698c-4be1-8fe5-d3621482d3fe/1920_chiefjusticemaryr.russell.jpeg?10000">Thank you, President-Elect Phillips, and good afternoon to all of you!I’m back! Some of you might remember I spoke at this event nearly a decade ago, when I was first chief justice. We rotate this position, and because I am currently the longest serving judge, I get a second turn ... lucky me.A few people have asked me, what has changed since last time. Ha! What hasn’t changed? Well, except me, of course! I certainly do not look any older ... right?You know, change is a funny thing. The very utterance of the word “change” can evoke a range of responses. Some of you may view change as a great adventure to be embraced with relish. For the more normal of us in the room, it may cause anxiety, a rise in blood pressure, a quickening of pulse, fear, perhaps even panic. But whether we like it or not, the world around us keeps changing, and we either fight the inevitable (and fail) ... or find a way to adapt and grow.In some ways, we are lucky, because as legal professionals, our foundation remains constant. So, while the concepts of the rule of law and legal precedence remain steadfast, how we do our jobs has changed dramatically. But I think Mark Twain was right; he said, “I’m in favor of progress; it’s change I don’t like!”Technology is changingTechnology is the most obvious change. It has impacted our profession at an unprecedented pace. When I stood on this dais a decade ago, one of the biggest challenges we had was figuring out how to let an attorney present evidence electronically.But covid forced all of us to use unfamiliar technology such as WebEx to keep our courts functioning, whether remotely or with hybrid proceedings. It was incredibly stressful, but adapting to the reality of the pandemic was a necessity, and you know what they say about necessity. In hindsight, it showed us that not only can we change, but that change can also bring unanticipated benefits, saving time and expense for you and your clients. Driving hours to the courthouse and waiting long periods for your turn in the courtroom have become less frequent.Even the bar has changed how it provides legal education. It now offers CLEs remotely, making it easier for all of us to keep up with new developments in the practice of law while saving time. The learning curve may have been steep, but as a profession, we cleared the hurdles and embraced those changes, and our practices and proceedings are better for it.But despite their convenience and efficiency, there is a downside. The camaraderie of lawyers seeing each other at CLEs or in the courthouse, such as on law days, is lost. The loss of personal contact between lawyers must not compromise our civility. Now, more than ever, it is important for us all to treat one another with kindness and respect.And now we are in the throes of yet another major change – in public access to court records. We have been expanding transparency for nearly three decades. Of course, records of all courts are presumed to be open to the public, and attorneys always have had a legal obligation to redact confidential information from their public court filings. But, as the years passed, the expectation became that “public” should mean “available online” for anyone, not just licensed attorneys or court employees.This summer, remote public access arrived. For two years, the Missouri Court Automation Committee laid the groundwork for the expansion of remote public access. The Court provided a one-year roadmap to redaction, with more specific rules about what would be expected of filers. Some have argued we have been moving much too slowly, while others argued we are moving much too fast. People disagreeing – first time I’ve heard that!Working as a team, the bar and the judiciary have spent countless hours educating lawyers and judges alike and developing a web-based Q&A for pro se litigants and the public. I want to give a huge “thank you” to each and every one of you who has stepped up to help educate your fellow lawyers, judges, and staff about best practices for redacting confidential information.I understand this change is as monumental for lawyers and judges as it is momentous for the public. But don’t let the pressure of change discourage you. Please continue to provide your thoughtful feedback and suggestions, as we consider how to continue improving the access Case.net provides. You are an important part of this revolutionary journey of bringing public court files to anyone with an internet connection.Before you know it, redaction will be as routine as e-filing, and we will have succeeded in making our justice system so much more accessible and transparent for the public we all serve. And besides, by next year, we’ll be worrying about AI!Another part of our practice that continues to change is how cases are decided. For example, although the number of civil filings has increased slightly, the number of civil jury trials has been steadily declining for decades, with more cases being resolved through mediation, arbitration, and settlement. Since the year 2000, the number of civil jury trials in Missouri has dropped by 76%.At least one country lawyer from Illinois would view this as a good change: “Discourage litigation,” he said. “Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity” to do good. “There will still be business enough!” Anyone recognize that country lawyer? It was Abraham Lincoln.Changes in leadershipSignificant changes in our profession don’t stop with technology, public access, and caseloads. The makeup of our profession is changing, as well. Let’s start with the front tables here today: For the first time in the history of our bar … our president, president-elect, and vice president are all women. And, just yesterday, Athena Dixon was elected to become the next vice president!The composition of our judges also has been changing dramatically. Since I last spoke to you, 60% of our judges statewide are new, with Gov. Parson having appointed nearly a quarter of them just since 2021. To highlight, in the last year alone, three-fourths of Greene County’s judges, and more than a quarter of its commissioners, are new to their positions. This is a huge change!As a result of all this change, the diversity of our bench is shifting as well, with more judges who are female, younger, minorities, or with physical disabilities.Our profession is changingWith baby boomers entering retirement, law offices are also changing. In just the last couple of years, about 1,200 lawyers have taken inactive status. That leaves nearly 31,000 active lawyers licensed to practice law in Missouri, and another 378 new lawyers who will be sworn in later this month. Today, more than a third of Missouri attorneys are women, and approximately 12% are racially or ethnically diverse.In addition, the composition of our law schools continues to change. For the first time ever, all four Missouri law schools have more female than male students in their classrooms. The majority of the editors-in-chief of the schools’ major legal publications are also women. For example, here at UMKC, that woman is Naomi Buie, a non-traditional minority law student. This is revolutionary to me, given my own memories of law school. We had so few women, the women’s restroom was about the size of closet!Legal education is also changingWhen today’s first-year law students graduate, their entrance into the profession will be quite different from the one we experienced. To meet employers’ expectations that their new hires will be practice-ready, a new bar exam is being created to enhance skills testing. The focus will be on applying skills to legal doctrine. Beginning in July 2026, the National Conference of Bar Examiners will roll out what is being called the NextGen bar exam. A national leader in developing this test is our own Judge Cindy Martin of the Western District Court of Appeals. She is highly regarded for her hard work, leadership, and legal acumen on this major national project. Thank you, Cindy.Change as a means of continual improvementWe also have been national leaders in our willingness to look inward – critically examining what we find, and applying what we learn to improve how we do things. A wise person once told me that healthy things grow, and growing things change. Think about it. Change isn’t just reacting to circumstances around us. We should seek opportunities to embrace change because it means we are healthy … we are growing.Look how much we have grown already ... by making our courthouses physically safer, to providing better funding for our public defender system, and by developing stronger partnerships with private attorneys. We’ve also clamped down on the use of our municipal divisions as ATMs for local governments. But there is always room for improvement, and we must remain willing to do the work necessary to grow. We cannot shy away from criticism, whether we find it constructive or not. And we cannot ignore evidence demonstrating a need for improvement.Here is one example. A recent independent study by Missouri State University of more than a decades’ worth of criminal case records found systemic issues with procedural fairness in how we charge and sentence criminal cases, especially those involving domestic violence and armed criminal action. The results are just a beginning, and the university recommends further study, but one thing is clear: we must work harder to change how we treat all people who come into our courts.I believe we all can agree the bottom line is this: that every person – regardless of their age, gender, race, ethnicity, education, or ability – should be treated with respect from the moment they enter the criminal justice system through the final disposition of their case.Procedural fairness is the heart of our judicial system. Law enforcement and prosecutors must be fair in how they arrest and charge defendants. Prosecutors and defense counsel alike must be fair in how they engage in plea negotiations. Judges must be fair when determining who is eligible for diversion programs and how a convicted defendant should be sentenced. The courtroom is one place where the promise of everyone being treated equally must be true. Our system of justice requires it.It is not enough to say we are going to follow the law and treat everyone fairly and equitably – we have to act on that promise and not allow ourselves to be distracted by personal notions. We must do everything in our power to ensure procedural fairness in every case, for every litigant, every time.There are more changes on the horizonIf change is hard for all of us, it can be brutal on our staff on whom we rely to just magically make things work as we want.Ten years ago, I embarked on an “undercover judge” program to learn from the people who use our courts. It highlighted what we were doing well and what we could do better. One finding still resounds with me: Despite the outcome of a case, litigants just wanted to be heard in the courtroom.You can hear a lot, just by listening. Over the next two years, I plan to travel to every circuit in the state (there are 46 of them now!) to listen, learn, and thank our court employees for everything they do. They are our unsung heroes, overworked and underpaid, who in this past year alone have been transitioning to a new case management system, scouring thousands of court records for potential expungements; and helping us navigate remote public access, all while making sure the everyday work of the courts still gets done.It truly takes a whole network of villages for our legal system to function well. A court without its clerks, bailiffs, juvenile officers, jury supervisors, court administrators, and other staff would flounder, just as I suspect many of you would … without your assistants, paralegals, investigators, and office managers. In recognition of the change they all have to endure: please be kind to all staff.Some changes hit close to homeSome changes hit really close to home. For those of us on our Court, this gathering is bittersweet. Our longtime friend and colleague, George Draper, hung up his robe this summer and is now enjoying a well-earned retirement. Next month, we lose another longtime friend and colleague, Patty Breckenridge, as she also faces mandatory retirement. Please join me in thanking these two incredible jurists for a combined seven decades of judicial service to the state of Missouri!Thankfully, our court finished the summer with all of our cases resolved. This leaves a fresh slate for our newest member, Judge Kelly Broniec.For those of you who don’t know Judge Broniec, she has been a judge on the Eastern District appeals court since October 2020. She previously served as both associate circuit judge and elected prosecutor in Montgomery County.Judge Broniec, I know you will be an outstanding addition to the Court. I think you will find – as I have – that your new colleagues on our Court are intelligent, collegial, and they will welcome you with open arms. I am excited to welcome you to your new Court family.When I graduated from law school, there was only one woman on the U.S. Supreme Court, Justice Sandra Day O’Connor. It would be another seven years until Ann Covington became the first woman to serve on the Supreme Court of Missouri. Each time a woman joins the Court, it resonates deeply with me. Women of my generation spent years as the only woman in the room or at the table, so the thought of now having a majority of women on our Court, even if it is only for a month*, leaves me too emotional for words.Building resiliency for changeWe can’t stop the constant changes to our work and world around us. But to succeed, we need to change as well.Of course, that is easier said than done. Change is stressful. The nature of the work we do is stressful. Life is stressful. So, to be at our best – whether at work or at home – we need to take care of ourselves … and each other.The pressures on lawyers in trying to secure favorable results for their clients, in making payroll for the firm – or on judges in rendering a tough, unpopular decision – all while maintaining high ethical standards can be overwhelming. Our bar associations have taken active steps to boost resources available to all of us and address our needs in a healthy way. So, if you see a colleague who appears not to be themselves, ask how you might be helpful to them. Urge them to take a break when things get overwhelming. Then celebrate their decision to seek help.You all are important to me. I care about each and every one of you. We are part of a challenging profession in challenging times. It is exciting, demanding, rewarding, and stressful. If the last decade has taught us anything, it is this – we are capable of adapting to change, and it is worth it.Charles Darwin once said, “It is not the strongest or the most intelligent who will survive but those who can best manage change.”I need you … and we all need each other … to build resiliency and adapt to all the changes around us. I am counting on you to look after yourselves and one another. Together, we can all do our best to change, to grow, and to make our system of justice even better!Thank you.Editor’s note: On Oct. 30, 2023, following the retirement of Judge Patricia Breckenridge, Gov. Mike Parson named Judge Ginger K. Gooch as the newest member of the Supreme Court of Missouri. The choice cemented the Court’s status as a majority-female court.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 04 Dec 2023 15:26:00 -0600</pubDate>
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<title>The Corporate Transparency Act: A new federal reporting obligation for business that impacts almost everyone</title>
<link>https://news.mobar.org/the-corporate-transparency-act-a-new-federal-reporting-obligation-for-business-entities/</link>
<guid>https://news.mobar.org/the-corporate-transparency-act-a-new-federal-reporting-obligation-for-business-entities/</guid><pp:caseid>613084</pp:caseid><pp:subtitle>Vol. 79, No. 6 / Nov. - Dec. 2023</pp:subtitle><pp:summary><![CDATA[The Corporate Transparency Act (CTA) requires businesses operating in the United States to report human direct and indirect beneficial ownership and control information. The law requires businesses to report information into an online Beneficial Ownership Secure System (BOSS), administered by the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury. BOSS will go live on January 1, 2024.ii The information in BOSS will be accessible to federal, state, local, and tribal law enforcement, certain financial institutions (with their customers’ consent) and other authorized requestors.iii However, reports filed into BOSS are exempt from search and disclosure under the Freedom of Information Act, open government or similar laws, and are not accessible by the public.iv]]></pp:summary><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/50e933ea-ce44-40c5-9256-7e42f7544838/1920_billquick.png?10000">William (Bill) E. H. Quick is the Corporate Transparency Act chair at Polsinelli PC, an Am Law 100 firm with more than 1,000 lawyers in 22 offices nationwide. Why are we here?The CTA was passed into law Jan. 1, 2021, by the U.S. Congress over then-President Donald Trump’s veto. It is a component of the National Defense Authorization Act for Fiscal Year 2021 (NDAA). Nestled within the NDAA, the CTA is intended to combat the use of shell companies in the commission of money laundering, terrorist financing, financial and tax fraud, and other domestic and international illicit activity and corrupt practices, as well as to protect U.S. national security. A useful shorthand for understanding who is intended to be ensnared by the CTA dragnet is to think of individuals such as foreign oligarchs, kleptocrats, and despots.v Despite the limited number of bad actors who form the target of the CTA, the law casts a very wide net, with FinCEN estimating that 32.6 million “reporting companies” will exist as of Jan. 1, 2024, and that approximately 5 million new “reporting companies” will be formed each year thereafter.vi Much of the business community swept into the CTA net will be unwitting and innocent bycatch.What is the CTA?If you have not heard of the CTA, you are not alone. Many business owners, and their professional advisors, are taken aback upon first learning of the CTA’s existence and scope. At its core, the CTA requires reporting of personal identifying information (PII) of direct and indirect beneficial ownership and control information pertaining to businesses operating in the U.S. The PII to be reported includes names, birthdates, residential addresses, and photographs.vii This vast influx of PII will be received, stored, and managed by FinCEN in the BOSS, with the BOSS going live Jan. 1, 2024.viiiWho must report?PII must be reported for persons owning, directly or indirectly, 25% or more of the business or who have “substantial control” over the business (each a “beneficial owner”). Every business will have at least one person to report, regardless of its ownership or control structure. Once the initial report is filed, this information must be updated within 30 days of any subsequent event that causes such information to no longer be accurate. Attribution of ownership and what constitutes substantial control will vary from business to business and will require analysis and advice. Law enforcement authorities will use this information to streamline their investigations and enforcement activity, thus bypassing the “shell game” historically posed by multiple levels of business entity ownership and affiliation.ixWho does the CTA impact?The CTA impacts “reporting companies,”x their incorporators and organizers (i.e., “company applicants”), service providers (also, “company applicants”), and owners and control persons (i.e., “beneficial owners”), as well as the financial institutions (i.e., banks, credit unions, and money service businesses – think Venmo or PayPal) with whom they do business.xi The CTA also implicates the enforcement activity of federal, state, local, tribal, and foreign law enforcement agencies.xiiA “reporting company” is a corporation, limited liability company or other “similar entity”xiii that is created by the filing of a document (“domestic reporting company”) or registered to do business in the United States by the filing of a document (“foreign reporting company”) with a secretary of state or a similar Indian tribal officexiv so long as it does not fall within specific, limited, excluded categories.These exclusion categories generally include already-regulated business entities: Securities and Exchange Commission-regulated parties, utilities, financial institutions, insurance providers, commodity exchanges, pooled investment vehicles, Internal Revenue Code Section 501(c) federally tax-exempt nonprofits (but, importantly, not other nonprofit entities), and governmental and quasi-governmental entities.xv In addition, there is an exclusion from “reporting company” status for “large operating companies” that meet all three of the following criteria:xvi (1) have a physical street address in the U.S.;xvii (2) have 21 or more full-time employeesxviii; and (3) have more than $5 million in annual U.S. gross receipts or sales as reported on the business’s prior year’s filed federal tax filings.xix As a matter of logical inference, it bears note that virtually no business entity formed after Jan. 1, 2023, will have filed a prior year’s federal tax filing as of Jan. 1, 2024, and, as such, will not be eligible for the large operating companies exemption. Further, except for an entity that is a wholly owned subsidiary of an exempt entity, all business entities newly formed after Jan. 1, 2024, will not qualify for an exclusion, and will be required to file a CTA report with FinCEN within 30 days of their formation, because they will not be able to qualify for any of the exemptions at the point in time of their formation. The vast majority of U.S. small businesses will not meet any of the exceptions to reporting, including the “large operating company” exception, and will be CTA “reporting companies” requiring a BOSS filing. This fact likely will come as a shock to many small business owners, whose first reaction to learning of the CTA’s existence is a variant of: “well, that has to be for large businesses, right?”In addition, certain parent or subsidiary entities of exempt companies may themselves be CTA “reporting companies.” Each business entity is separately evaluated for a CTA exemption on its own merits. As such, even persons noting that their core business entity easily meets a CTA exemption may find that they are pulled into the CTA compliance regime through their affiliated entities and joint venture parties.When and how to reportNo CTA filings may be made prior to the BOSS system’s live date. Filings will be made via electronic interface with BOSS. Businesses in existence on Jan. 1, 2024, will have a one-year grace period to file their initial report with FinCEN, but they must file an initial report, even if they subsequently terminate or otherwise alter their structure in a manner to become compliant with a CTA exemption. Any change to the status quo of a business in existence on Jan. 1, 2024, will need to be reported as a separate amendment filing, delivered with the initial “as of Jan. 1, 2024,” report filing required to be made on or before Dec. 31, 2024. Notably, there is no grandfathering of previously-formed entities and the CTA will sweep in all business entities in existence on Jan. 1, 2024. Shockingly, for many legal practitioners and their clients who chose to “not bother” with formally terminating past business entities that are no longer actively conducting business, FinCEN has taken the position that all administratively dissolved entities not otherwise meeting an exemptionxx are required to file a CTA report like all other covered reporting companies.xxiBusinesses formed on or after Jan. 1, 2024, will have a shorter, 30-day grace period after formation to file their initial report. Businesses will need to compile, maintain, and update their reportable PII for their beneficial owners on an ongoing basis. After Jan. 1, 2024, all businesses will have 30 days to file any correction or change to their previously reported information.xxii This includes instances where a reporting company subsequently becomes eligible for an exemption from the reporting requirement.xxiii Any exempt company that no longer meets the criteria for an exemption must file an initial report within 30 days after the date that it no longer meets the exemption criteria.xxivWhat is a company applicant?The same PII as disclosed for beneficial owners must also be reported for company applicants (these are the entity’s incorporators or organizers), including those who directed the business’s formation filing.xxv However, this applies only for businesses newly formed after Jan. 1, 2024. Once reported, company applicant information is not required to be updated in the future.What is a FinCEN Identifier?The CTA contemplates that an individual may provide his or her PII to FinCEN, and may thereby obtain a FinCEN Identifier, an identification number that may then be provided to reporting companies and to FinCEN in the future in lieu of other required PII about that person.xxvi Reporting companies may obtain a FinCEN Identifier in a similar manner, but a reporting company may report an intermediate entity’s FinCEN identifier (rather than specific beneficial owner’s information) only when the intermediate entity and the reporting company have the same beneficial owners.xxviiWho may access the BOSS?Reporting company information and associated PII of such business entity’s beneficial owners and company applicants may be accessed for national security, intelligence, or law enforcement activity; for use in furtherance of such activity by officers or employees of any U.S. agency; by officers or employees of any state, local, or tribal agency; or by officers or employees of any permitted financial institution.xxviii Except as authorized by the CTA and the associated FinCEN promulgated protocols, however, company information and PII reported under the CTA is confidential and may not be disclosed by a U.S. officer or employee; an officer or employee of any state, local, or tribal agency; or an officer or employee of any financial institution or regulatory agency receiving information that was collected under the CTA.xxix Such officials are subject to stiff sanctions for any instance of violation of the CTA’s access parameters.xxxPenalties for CTA noncomplianceThere are steep, escalating fines ($500 per day up to $10,000 per violation) and possible jail time (up to two years) for those failing to timely comply with the CTA’s requirements.xxxi It bears note that failure to timely file a required initial report could result in up to a $10,000 fine, but that subsequent events that would necessitate an amendment to such required but missing filing, had the initial report been made, also accrue — meaning that a failure to file an initial report may result in aggregate fines accruing well in excess of $10,000 prior to an initial notification of violation coming from FinCEN to the reporting company. One may assume that the intent behind noncompliance of a reporting company and its agent(s) will serve as a factor in FinCEN’s assessing of possible criminal penalties.What is the CTA’s application to professional associations, including law practices?The CTA applies to professional associations — such as law practices and many accounting practices. There is no specific CTA exemption for professional associations (other than an express exemption for “[a]ny public accounting firm registered in accordance with Section 102 of the Sarbanes-Oxley Act of 2002.”).xxxii The only likely category of potential CTA exemption for a professional association would be through the “large operating company” exemption noted above. Some professional associations (including law firms) may be particularly susceptible to reporting company compliance obligations based on their ownership structure, whereby the entity’s professional owners may be excluded from the “full time employee” count based on their non-employee status for federal income tax purposes, which may impede meeting a “large operating company” exception.xxxiiiConclusionThe CTA is intended to cause the collection, maintenance, safeguarding, and disclosure of beneficial ownership information, with the stated goal to facilitate important national security, intelligence, and law enforcement activities. Reporting under the CTA is designed to help prevent criminals, terrorists, proliferators, and other bad actors from abusing business entity structures in their efforts to hide illicit proceeds in the United States. The CTA is a new extension of federal oversight to the regulation of business entities and their operations. This oversight traditionally has resided with U.S. states. Attorneys and their clients will now need to swiftly adjust to this new legal compliance landscape.For some businesses, CTA compliance will require nothing more than filing a simple, straightforward, online report into the BOSS. For many sophisticated businesses, however, CTA compliance will be a minefield for potential failures. The CTA’s reporting obligations touch on the sensitive issue of personal anonymity historically enjoyed by U.S. beneficial owners. Providing personal identifying information (and a photograph) into a governmental law-enforcement database implicates considerations of personal privacy, attribution of associations with business partners and association with particular types of investment,xxxiv data security, and other meaningful considerations.Business owners and their control persons have only the waning remainder of 2023 to take actions to best avail themselves of a CTA exemption or otherwise influence their ownership or control position within their business entities, to limit or eliminate their required disclosure into the BOSS. Business owners and their control persons will also have the same time period to establish necessary authorized personnel, policies, procedures, protocols, and systems to ensure timely compliance with the CTA’s short compliance windows commencing and continuing from Jan. 1, 2024. Now is the time to engage expert, professional advisors to prepare for this new business world order.Endnotes[1] §§ 6401 – 6403 under Title LXIV of the National Defense Authorization Act for Fiscal Year 2021.[2] See FinCEN Frequently Asked Questions 3 and 5; <a href="https://www.fincen.gov/boi-faqs">https://www.fincen.gov/boi-faqs</a> (last visited July 28, 2023) (“No one needs to report beneficial ownership information to FinCEN until January 1, 2024. FinCEN is currently not accepting any beneficial ownership information reports.” “Beneficial ownership information reports will not be accepted before then.” [Issued March 24, 2023]).[3] 31 C.F.R. § 1010.380 (b)(5).[4] See 31 U.S.C. § 5319; 31 C.F.R. § 1010.960.[5] E.g., for the Wall Street Journal readers, envision the “Pandora Papers” (circa 2021) (<a href="https://en.wikipedia.org/wiki/Pandora_Papers">https://en.wikipedia.org/wiki/Pandora_Papers</a>), “Panama Papers” (circa 2016) (<a href="https://en.wikipedia.org/wiki/Panama_Papers">https://en.wikipedia.org/wiki/Panama_Papers</a>) and “Paradise Papers” (circa 2017) (<a href="https://en.wikipedia.org/wiki/Paradise_Papers">https://en.wikipedia.org/wiki/Paradise_Papers</a>). For the Netflix fans, think of “Gunter’s Millions” (“Was the 'world's richest dog' a front to avoid taxes? Netflix documentary exposes truth behind Italian pharma heir's infamous hoax claiming German Shepherd Gunther VI is worth $400M”: <a href="https://www.dailymail.co.uk/news/article-11692671/Netflix-documentary-Gunthers-Millions-exposes-truth-worlds-richest-dog.html">https://www.dailymail.co.uk/news/article-11692671/Netflix-documentary-Gunthers-Millions-exposes-truth-worlds-richest-dog.html</a>); see also “Liechtenstein Papers” (circa 2008) (<a href="https://en.wikipedia.org/wiki/2008_Liechtenstein_tax_affair">https://en.wikipedia.org/wiki/2008_Liechtenstein_tax_affair</a>).[6] See 31 C.F.R. § 1010.380.[7] 31 C.F.R. § 1010.380(b) (2022).[8] See note 3 supra.[9] CTA § 6403(c)(2)(B)(i). See 31 C.F.R. § 1010.380 (printed page 59547).[10] It is important to note that these are “reporting companies” as defined in the CTA only, and NOT “reporting companies” obligated to file reports under Sections 13 or 15(d) of the Securities Exchange Act (which entities are expressly excluded from the CTA’s “reporting” company classification).[11] § 6403 under Title LXIV of the National Defense Authorization Act for Fiscal Year 2021.[12] CTA § 6403(c)(2)(B)(i). See 31 C.F.R. § 1010.380 (printed page 59547).[13] See, e.g., limited partnerships, limited liability partnerships, limited liability limited partnerships, business trusts, decentralized autonomous organizations (DAOs), cooperative associations, series of a series LLC and other entities created through filings with a secretary of state or tribal authority.[14] 31 U.S.C. § 5336 (a)(11)(A) (2021).[15] 31 U.S.C. § 5336 (a)(11)(B).[16] Failure to meet any one or more of these three criteria will result in the exemption not applying to the business entity in question, and such business entity being classified as a “reporting” company under the CTA.[17] See 31 C.F.R. § 1010.380(f)(6) (“The term ‘has an operating presence at a physical office within the United States’ means that an entity regularly conducts its business at a physical location in the United States [which] the entity owns or leases, and [which] is physically distinct from the place of business of any other unaffiliated entity.” Neither shared space (e.g., WeWorks or Regis facilities), nor a registered agent’s office nor the law office of a client’s attorney may serve as such an address.).[18] 31 U.S.C. § 5336(a)(11)(B)(xxi)(A) (2014). 31 C.F.R. § 1010.380(f)(1). A full-time employee must average 30 hours per week or 130 hours per month. See 26 C.F.R. § 54.4980H-1(a) (21) (2014). This may not include part-time employees, independent contractors or leased employees, nor full-time-equivalents. But note that FinCEN, in its FAQs (Question 8, Answer XXI, <a href="https://www.fincen.gov/boi-faqs">https://www.fincen.gov/boi-faqs</a> (last visited July 28, 2023), describes this threshold as “Large operating companies with at least 20 full-time employees…”(emphasis added) (internal citation omitted); note: this position is contrary to the express provision in the CTA, requiring more than 20 full-time employees. See 31 U.S.C. § 5336 (a)(11)(B)(xxi)(I).[19] 31 U.S.C. § 5336(a)(11)(B)(xxi)(I). A “large operating company” must have filed “a Federal income tax or information return in the United States for the previous year demonstrating more than $5,000,000 in gross receipts or sales, as reported as gross receipts or sales (net of returns and allowances) on the entity's IRS Form 1120, consolidated IRS Form 1120, IRS Form 1120-S, IRS Form 1065, or other applicable IRS form, excluding gross receipts or sales from sources outside the United States, as determined under Federal income tax principles. For an entity that is part of an affiliated group of corporations within the meaning of 26 U.S.C. 1504 that filed a consolidated return, the applicable amount shall be the amount reported on the consolidated return for such group.” 31 C.F.R. § 1010.380(c)(2)(xxi)(C). It bears note that aggregation on consolidated returns only applies to federal tax purposes “corporations” and not federal tax purposes “partnerships,” the tax category selected by most limited liability companies and limited partnerships.[20] See “Inactive Entities” exemption at § 5336(a)(11)(B)(xxiii); 31 C.F.R. § 1010.380(c)(2)(xxiii).[21] Anything short of a formal termination of an existing entity by December 31, 2023, would constitute that entity as a reporting company under the CTA, absent its qualification for an exemption. See 31 C.F.R. § 1010.380 (printed pages 59545 and 59553), discussing how dissolved entities will have CTA reporting obligations because the vast majority of company dissolutions are temporary and do not prevent a dissolved entity from conducting business, with many such entities in a temporary administrative dissolution status. Administratively dissolved entities typically may be reinstated with a simple remedial filing, with retroactive good standing effect.[22] 31 C.F.R. § 1010.380(a)(2).[23] 31 C.F.R. § 1010.380(a)(2)(i).[24] 31 C.F.R. § 1010.380 (a)(1)(iv). However, 501(c) exempt companies, “for the 180-day period beginning on the date of the loss of such tax-exempt status” “shall be considered to be continued to be [exempt under that CTA exemption].” 31 C.F.R. § 1010.380(c)(2)(xix).[25] 31 C.F.R. § 1010.380 (b)(1)(ii); 31 C.F.R. § 1010.380(e).[26] 31 C.F.R. § 1010.380 (b)(5).[27] See Proposed 31 C.F.R. § 1010.380(b)(4)(ii)(B).[28] CTA § 6403(c)(2)(B)(i).[29] CTA § 6403(c)(2)(B)(ii).[30] 31 U.S.C. §§ 5336(h)(2), 5336 (h)(3)(B).[31] 31 U.S.C. §§ 5336(h)(1), 5336(h)(3)(A).[32] See Proposed 31 C.F.R. § 1010.380 (c)(2)(xv); (NPRM 87 Fed. Reg. 77404). See FinCEN FAQs (Question 8, Answer XV; <a href="https://www.fincen.gov/boi-faqs">https://www.fincen.gov/boi-faqs</a> (last visited July 28, 2023).[33] 31 C.F.R. § 1010.380 (c)(2)(xxi), referencing 26 C.F.R. § 54.4980H-1(a); see 26 C.F.R. § 54.4980H-1(a)(15): “Employee. The term employee means an individual who is an employee under the common-law standard. See § 31.3401(c)-1(b). For purposes of this paragraph (a)(15), a leased employee (as defined in section 414(n)(2)), a sole proprietor, a partner in a partnership, a 2-percent S corporation shareholder, or a worker described in section 3508 is not an employee.” (emphasis added).[34] Consider co-investments with notorious individuals. Or in businesses receiving poor press and investigative attention, such as payday lending. Or investments in businesses with challenging legal status (such as businesses in the cannabis industry, which, while legal under Missouri law, remains illegal in other states (including Kansas), and under federal law for any purpose – see the Controlled Substances Act of 1970, 21 U.S.C. § 801 et. seq.).]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 04 Dec 2023 15:09:00 -0600</pubDate>
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<title>Meet #MOLawyers: Quinn P. Benson</title>
<link>https://news.mobar.org/meet-molawyers-quinn-p-benson/</link>
<guid>https://news.mobar.org/meet-molawyers-quinn-p-benson/</guid><pp:caseid>612746</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><pp:summary><![CDATA[As a child, Quinn Benson watched his father practice law; now, the two work side-by-side at The Benson Law Firm in Kirksville. In March, Benson, a Leadership Academy alumni, was first elected to the Young Lawyers’ Section Council, representing District 2. A graduate of the University of Missouri-Kansas City School of Law, Benson was admitted to the bar in 2020.  ]]></pp:summary><description><![CDATA[ You’re currently on YLS council. Why is participating in the section important to you?  YLS is the public service arm of the bar for new and recently admitted Missouri lawyers. I've been thrilled to serve our communities in much needed ways. Not only am I passionate about giving back to the communities that support us and have supported us throughout our lives, but it's been an honor to do so alongside such great and kind-hearted Missouri lawyers.   What are some of the unique aspects of practicing in Kirksville?  Although there are plenty of aspects I love about rural practice, the familiarity with those I work with and for is what is the most special to me. Growing up in Kirksville, everyone knew everyone. Today, I appear in court in front of and beside lawyers whom I grew up aspiring to be like. In that same courtroom, I advocate for some of those same faces that I grew up running into, whether it be former teachers or coaches.   What do you like most about practicing in a small/family firm?  Growing up, I watched my father, Jay Benson, work endlessly to help his clients get justice in their darkest days. As early as middle school, I remember skipping class to watch him argue his case to a jury. His desire to advocate for his clients and their broken hearts ignited a spark in me from an early age. As a result, I knew as a kid that I not only wanted to do what my dad did, but I wanted to do it with him. Today, I feel so fortunate to be right down the hallway fighting the fight I watched from such an early age with the man I watched do it. I would be remiss not mentioning the several others that work so hard to help keep business running, including the third lawyer in our firm, Polly Petree-Hampton, who continues to make me a better lawyer every day, and our incredible staff, Jody, Wanda, and Megan.  What do you enjoy doing outside of the office?Outside of the office, I enjoy spending time at Arrowhead Stadium, Faurot Field, or on the golf course. Beyond my love for Missouri sports and golf, I enjoy traveling and spending time with my girlfriend, Lucy Leonard, with our two golden retrievers, Riley and Frankie, and with the rest of my family, including my parents and my sister and brother-in-law, Lara and Carter Templeton, who are attorneys in the DC area.   Do you have any resolutions for the new year?My resolution for 2024 is to be more patient.  ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Fri, 01 Dec 2023 15:50:31 -0600</pubDate>
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<title>Top Takeaways from the Journal of The Missouri Bar – Sept./Oct. 2023</title>
<link>https://news.mobar.org/top-takeaways-from-the-journal-of-the-missouri-bar--septoct-2023/</link>
<guid>https://news.mobar.org/top-takeaways-from-the-journal-of-the-missouri-bar--septoct-2023/</guid><pp:caseid>601725</pp:caseid><description><![CDATA[by Hannah Kiddoo Frevert, editorHappy New Year! Annual Meeting culminates a Missouri Bar year and launches another anew. In her <a href="https://news.mobar.org/executive-summary-happy-new-year/">latest Executive Summary,</a> Mischa Buford Epps reviews how lawyers can get more involved in 2024.Megan Phillips was sworn in as the 2023-24 president of The Missouri Bar this September. <a href="https://news.mobar.org/megan-phillips-2023-24-president-of-the-missouri-bar/">Learn more about Phillips,</a> including her passion for helping those around her and her goals for her time in office.   No matter where you turn today, you read about the opportunities – and – perils of artificial intelligence (AI) tools like ChatGPT. In this edition of Management Matters, Jeffrey R. Schoenberger <a href="https://news.mobar.org/management-matters/">focuses on the banalities that legal professionals need to know</a> when approaching AI.There are many reasons why business owners end up in litigation against each other. No matter what causes the dispute, considering statutory framework, case law, and potential remedies is key. Learn more in <a href="https://news.mobar.org/shareholder-oppression-and-the-quest-for-fairness/">this piece</a> by Gerard V. Mantese, Michael Butterfield, and Theresamarie Mantese.<a href="https://news.mobar.org/writing-it-right-advice-about-written-advocacy-from-the-washington-court-of-appeals/">In his final Writing it Right,</a> Doug Abrams shares advice about written advocacy from the Washington Court of Appeals. The Journal of The Missouri Bar offers a tremendous amount of thanks to Abrams for his years of thoughtful contributions.  ]]></description><category><![CDATA[molawyers,journal]]></category>
<pubDate>Wed, 18 Oct 2023 14:56:34 -0500</pubDate>
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<title>Ethics: Nine new informal advisory opinion summaries published in 2023</title>
<link>https://news.mobar.org/ethics-nine-new-informal-advisory-opinion-summaries-published-in-2023/</link>
<guid>https://news.mobar.org/ethics-nine-new-informal-advisory-opinion-summaries-published-in-2023/</guid><pp:caseid>601729</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><description><![CDATA[As determined by the Advisory Committee to the Supreme Court of Missouri, nine new informal opinion summaries have been published.Pursuant to Rule 5.30, written summaries of select informal opinions are published for informational purposes as determined by the Advisory Committee. Informal opinion summaries are advisory in nature and are not binding. The first four digits of the opinion summary number indicate the year the opinion was issued. The full text of attorneys’ requests and the Legal Ethics Counsel’s responses are confidential. Informal advisory opinions are issued by the Legal Ethics Counsel pursuant to Missouri Supreme Court Rule 5.30. The Legal Ethics Counsel issues opinions to members of the bar about Rules 4, 5 and 6 for prospective guidance about an attorney’s own conduct involving an existing set of facts. Informal advisory opinions will not be issued about past conduct, hypothetical scenarios, or the conduct of an attorney other than the one asking for the opinion.For a searchable database and information about requesting an informal opinion, go to: <a href="http://www.mo-legal-ethics.org/" target="_blank">Mo-Legal-Ethics.org</a>, click “For Lawyers,” and choose “Informal Advisory Opinions.”  <h3>2023-01</h3>Question: Lawyer is appointed by the court as counsel for Client who is the respondent in a guardianship proceeding. Lawyer believes that the statute, RSMo 475.075.4, requires the court appointed counsel to represent the respondent’s desires regarding the guardianship, but that the statute requires Lawyer to obtain all possible aid from the respondent if Lawyer believes that respondent is capable of understanding the proceedings and can help advance the respondent’s interests. Lawyer seeks clarification as to the application of Rule 4-1.14 – Client with Diminished Capacity in this representation given the statutory requirements.Answer: This office cannot interpret statutes or other sources of law, and can only provide guidance regarding Rules 4, 5, and 6. It is important to remember that “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Rule 4, Scope [14]. As explained in Rule 4, Scope [15], a larger legal context outside of the Rules of Professional Conduct shapes the lawyer’s role, including court rules, laws defining specific obligations of lawyers, and substantive and procedural law in general. Additionally, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.” Rule 4, Scope [17].It should be noted that a lawyer has an ethical duty to comply with court orders, and a lawyer is prohibited from knowingly disobeying an obligation under the rules of a tribunal. Accordingly, Lawyer should seek to follow any obligations imposed by a court order appointing the lawyer, statute or other law with respect to the representation. See, Rule 4-3.4(c) and Comment [4]. The interpretation of statutes or other law governing Lawyer’s obligations when appointed to represent a client in a matter governed by that statute is a matter of law for a court to decide and beyond the scope of an informal ethics opinion. Lawyer must use independent professional judgment, based on the facts and substantive law, to make a determination on a case-by-case basis as to when Lawyer may act pursuant to Rule 4-1.14 when representing a respondent in a guardianship proceeding.As to the application of Rule 4-1.14 to this Question, Lawyer should consider that Client has presumably been alleged to have some degree of diminished capacity, which may or may not be true. Pursuant to Rule 4-1.14(a) if Lawyer believes that a client’s capacity to make adequately informed decisions in connection with the representation is diminished, Lawyer is required, as far as reasonably possible, to maintain a normal client-lawyer relationship. See also Informal Opinion 2020-27.Rule 4-1.2(a) requires Lawyer to abide by a client’s decisions concerning the objectives of the representation and to consult with the client as to the means by which the client’s objectives are to be pursued. However, Comment [6] to Rule 4-1.2 provides guidance that “[a]n agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” It is the informal advisory opinion of this office that “other law” in the scope of representation context could include an order appointing an attorney to represent a client, specific statutory authority, or case law. Rule 4-1.4(b) requires Lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment [2] to Rule 4-1.4 states that the client “should have sufficient information to participate intelligently in the decisions concerning the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Therefore, a client who may have diminished capacity retains the right, to the extent that the client is able to do so, to determine the goals and objectives of the representation and to consult with Lawyer regarding the means by which those goals and objectives are pursued. However, as noted in the guidance provided in Comment [1] to Rule 4-1.14, “[w]hen the client …suffers from a diminished mental capacity, … maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions.”As explained in Informal Opinion 2020-27, Rule 4-1.14(b) sets forth a continuum of potential protective actions which a lawyer may take in regard to a client with diminished capacity, beginning with those that involve minimal intrusion into the client’s decision-making autonomy and ending with the most intrusive. In considering the application of Rule 4-1.14(b), Lawyer appointed to represent a respondent in a guardianship proceeding must consider that requesting the appointment of a guardian is the most drastic action on the end of the continuum of possible protective actions involving the greatest intrusion into the client’s decision-making autonomy. When the appointment of a guardian for a client has been sought by a third party, the most drastic protective action on behalf of the client with diminished capacity has already been taken by a party other than Lawyer. Therefore, it may not make sense for Lawyer to take protective action authorized by Rule 4-1.14(b) when the client’s capacity is the subject of the proceeding and should only be considered by Lawyer for use when the high criteria of that Rule are met.<h3>2023-02</h3>Question: Lawyer A represents Lawyer B in a contract dispute in which Lawyer B represented an LLC and is alleged to have filed actions on behalf of non-members of the LLC without their knowledge or consent. Lawyer B’s conduct is at issue in the underlying lawsuits. Lawyer A asks if there is a requirement to report Lawyer B’s alleged misconduct to the Office of Chief Disciplinary Counsel pursuant to Rule 4-8.3. Answer: Missouri Rule of Professional Conduct 4-8.3, Reporting Professional Misconduct, provides guidance in Comment [4] that “[t]he duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.” Based on Comment [4] to Rule 4-8.3, Lawyer A does not have an obligation to report Lawyer B because Lawyer A has an attorney-client relationship with Lawyer B in which Lawyer B’s conduct is in question. <h3>2023-03</h3>Question: Lawyer receives payment of attorney fee for awards in permanent total disability cases or work-related death cases, and those fees are for work previously performed. Lawyer is considering retirement and asks if Lawyer may continue to receive those payments of attorney fees for work previously performed, and if those future attorney fee payments may be made to Lawyer’s heirs or a trust? Answer: Based on Rules 4-1.5 and 4-5.4(a), if the fees were earned prior to Lawyer’s retirement, Lawyer may continue to receive those payments after retirement. See also Missouri Informal Opinions 2010-0005, 20000195, and 930079. This is true whether the Lawyer retires and remains on active status with a full Category 1 license pursuant to Rule 6.01, or inactive status pursuant to Rule 6.03. See also Informal Opinions 2022-02 and 2020-02. Rule 4-5.4(a) states that “[a] A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons….”  In this scenario, future payments may be made to Lawyer’s heirs so long as it is permissible at law. This office cannot provide legal advice on the appropriate legal mechanisms to do so, as that is an issue outside the Rules of Professional Conduct. See also Informal Opinion 2011-02. <h3>2023-04 </h3>Question: Lawyer represents Client in seeking an order of protection, and assisted Client in completing paperwork for the petition such that portions are in the handwriting of Lawyer. Opposing Counsel claims that Lawyer is now a necessary witness and files a Motion to Disqualify Lawyer. Lawyer asks if there is an issue in assisting future clients in drafting order of protection pleadings in a similar manner. Answer: If Lawyer is representing Client, Lawyer may assist Client in carrying out the objectives of that representation pursuant to Rule 4-1.2 (Scope of Representation).  Whether Lawyer will be considered to be a “necessary witness” for the purposes of Rule 4-3.7 (Lawyer as Witness) is really a question of law and fact outside the Rules of Professional Conduct and must be determined by the Court. See e.g., Missouri Informal Opinions 2015-06, 2014-03, 20040012, 20000234, 990148, 980098, and 950226. In examining whether Lawyer will be a “necessary witness” for the purposes of Rule 4-3.7, in addition to substantive law, Lawyer should consider the guidance provided in the Comments to Rule 4-3.7, specifically Comment [2] as it addresses the possibility of the tribunal being misled or confused by the lawyer’s role in the matter or opposing party’s right to object if the combination of roles by Lawyer may prejudice that party’s rights in the litigation. Comment [4] to Rule 4-3.7, provides factors to be considered in balancing the interest of client, tribunal and opposing party, and states: “[w]hether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client.” <h3>2023-05 </h3>Question 1: Lawyer is found guilty of felony driving while intoxicated (DWI) and asks if there is an obligation to self-report this to the Chief Disciplinary Counsel.Answer 1: While Lawyer is not required by Rule 4-8.3 to self-report an alleged or actual violation of the Rules of Professional Conduct to the Office of Chief Disciplinary Counsel, a criminal conviction or discipline in another jurisdiction is different. See Informal Opinion 2011-04. In this matter, Lawyer is required to report the felony conviction for driving while intoxicated to the Chief Disciplinary Counsel within 10 days. Rule 5.21(a) requires a lawyer licensed in Missouri to report to the Chief Disciplinary Counsel within 10 days a guilty or nolo contendere plea, or a finding of guilt of a crime in this state, any other state, or the United States, whether a sentence is imposed or not. A crime for the purposes of Rule 5.21 is defined by Rule 5.21(c) to include:<blockquote>(1) Any felony of this state, any other state, or the United States;     (2) Any misdemeanor of this state, any other state, or the United States involving interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or moral turpitude; or     (3) Any misdemeanor involving attempt, conspiracy, or solicitation of another to commit any misdemeanor of this state, any other state, or the United States as described in this Rule 5.21(c)(2).</blockquote>Whether a misdemeanor plea or finding of guilt for driving while intoxicated is subject to required reporting pursuant to Rule 5.21(c)(2) or (3) is a question of law and should be considered by each lawyer on a case-by-case basis.Additionally, Lawyer may wish to consider if the resources of the Missouri Lawyers’ Assistance Program of The Missouri Bar, or those available pursuant to Rule 16 on substance abuse intervention, may be helpful to Lawyer’s overall well-being.Question 2: Lawyer is also licensed to practice law in another U.S. jurisdiction, State A, and is disciplined by State A. Does Lawyer have an obligation to report the discipline by State A to the Chief Disciplinary Counsel?Answer 2: While Lawyer is not required by Rule 4-8.3 to self-report an alleged or actual violation of the Rules of Professional Conduct to the Office of Chief Disciplinary Counsel, discipline of Lawyer by another jurisdiction is different. See Informal Opinion 2011-04. Rule 5.20(a) requires a lawyer licensed in Missouri to report being disciplined by another jurisdiction to the Chief Disciplinary Counsel within 10 days. In this matter, Lawyer is required to report the discipline by State A to the Chief Disciplinary Counsel within 10 days. <h3>2023-06 </h3>Question: Client filed a complaint against Lawyer with the Office of Chief Disciplinary Counsel (OCDC) alleging misconduct that is being investigated by a Regional Disciplinary Committee (RDC). Lawyer has been asked by the Regional Disciplinary Committee to provide evidence related to financial records for the client trust account that includes information of numerous represented clients other than just Client who filed the complaint with the Office of Chief Disciplinary Counsel. May Lawyer provide evidence and a statement to the Regional Disciplinary Committee without receiving a waiver of confidentiality from the other clients who did not file the complaint?Answer: The Legal Ethics Counsel cannot give Lawyer legal advice regarding any matter, specifically, in this inquiry, regarding a disciplinary investigation. Lawyer may choose to seek private legal counsel for legal advice regarding this matter. The Legal Ethics Counsel is limited to providing an informal advisory opinion pursuant to Rule 5.30(c) and cannot interfere with a pending proceeding, in this case an investigation by OCDC or a Regional Disciplinary Committee or division thereof.With those considerations in mind, the Legal Ethics Counsel provides the following informal ethics opinion regarding the application of the Rules of Professional Conduct to the facts presented.Pursuant to Rule 5.08(a), the Chief Disciplinary Counsel is authorized, with or without complaint, to investigate professional misconduct alleged to have been committed by a lawyer licensed to practice in this jurisdiction. Each regional disciplinary committee or division thereof may conduct an investigation upon request of the Chief Disciplinary Counsel. Rule 5.08(a); see also Rule 5.02.Rule 4-8.1 states in relevant part that a lawyer in connection with a disciplinary matter shall not “knowingly fail to respond to a lawful demand for information from …[a] disciplinary authority, except that this Rule 4-8.1 does not require disclosure of information otherwise protected by Rule 4-1.6.” In Missouri, the disciplinary authority is the Office of Chief Disciplinary Counsel or a regional disciplinary committee. Failure to cooperate with the Chief Disciplinary Counsel or a regional disciplinary committee with regard to a disciplinary matter constitutes conduct prejudicial to the administration of justice and conduct that reflects adversely on a lawyer’s fitness to practice law. See Formal Opinion 117; Rule 4-8.4(d).Rule 4-1.6 on confidentiality provides in relevant part that a lawyer shall not reveal information related to the representation of a client unless the client gives informed consent, or the disclosure is permitted by Rule 4-1.6(b).Rule 4-1.6(b)(3) permits a lawyer to disclose information related to the representation to the extent the lawyer reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”  (Emphasis added.) The plain language of Rule 4-1.6(b)(3) does not limit the exception to disclosure of confidential client information contained therein to a complaint by the client or a controversy between the lawyer and the client. Comment [8] to Rule 4-1.6 states in relevant part:<blockquote>Where a … disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a … disciplinary… proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person…. The lawyer's right to respond arises when an assertion of such complicity has been made. Rule 4-1.6(b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.</blockquote>As stated above, Rule 5.08(a) authorizes the disciplinary authority to investigate professional misconduct with or without complaint. Thus, Rule 4-1.6(b)(3) permits Lawyer to comply with a request from the Chief Disciplinary Counsel or a Regional Disciplinary Committee for information, including testimony, relating to the representation of a client regardless of whether that client has made a complaint to the Chief Disciplinary Counsel or whether the representation of that client was the subject of a complaint. Comment [13] to Rule 4-1.6 notes that some Rules, including Rule 4-8.1, “require disclosure only if such disclosure would be permitted by Rule 4-1.6(b).” Since Lawyer is permitted to disclose the information requested by the disciplinary authority, it is the informal advisory opinion of this Office that such disclosure is required by Rule 4-8.1.It is important to note that Rule 4-1.6(b) only allows disclosure in a limited form by stating that the lawyer “may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary” to meet the exception permitted in (b)(1)-(5). Comment [12] to Rule 4-1.6 provides guidance that the disclosure pursuant to Rule 4-1.6(b) must be “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”<h3>2023-07</h3>Question:  Lawyer is planning to retire in a few months and is no longer holding funds in a client trust account. Does lawyer need to do anything besides close out the client trust account?Answer: Upon retirement, Lawyer must do a reconciliation of the client trust account and ensure that all funds are accounted for and distributed appropriately. Rule 4-1.15(a)(7). Only if there are no undistributed funds may Lawyer close the trust account. Records of the client trust account, including of the final reconciliation, must be maintained for at least 6 years in accordance with Rule 4-1.15(f). Once the account is closed, Lawyer should contact the Missouri Lawyer Trust Account Foundation to notify it of the closure of the account and provide an appropriate certification as to Lawyer’s annual enrollment statement pursuant to Rule 4-1.15(h)(1) that Lawyer is not engaged in the practice of law.If Lawyer has unidentified funds in the client trust account, Lawyer should follow Formal Opinion 118 and the guidance provided by Informal Opinions 2020-18, 2011-01, 990217, 960158, 940091. If Lawyer has funds of a missing client or third person in the trust account, Lawyer should follow Formal Opinion 118 and the guidance provided by Informal Opinions 2020-17, 20000129, 990102, and 960053. <h3>2023-08 </h3>Question: Lawyer is preparing estate planning documents for Client, an elderly individual with no immediate family members. Client will be named as trustee on a revocable living trust, but Client asks Lawyer to serve as successor trustee in the event Client dies or resigns as trustee. The revocable living trust would provide reasonable compensation for services rendered as successor trustee in the event Client dies or resigns as trustee. May Lawyer ethically prepare and participate in such an arrangement?Answer: Lawyer must comply with the requirements of Rule 4-1.8(a) to agree to serve as successor trustee and receive reasonable compensation for such services in the event Client dies or resigns as trustee. See Missouri Informal Opinions 970138 and 970130.Rule 4-1.8(a) provides:A lawyer shall not enter into a business transaction with a client (…) unless:<blockquote>(1)  the transaction and terms on which the lawyer acquires an interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;   (2)  the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and    (3)  the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.</blockquote>Lawyer should carefully review Comments [1] – [4] to Rule 4-1.8 for further guidance, as well as Missouri Informal Opinions 20050041 and 20030019.<h3>2023-09</h3>Question: May Lawyer accept payment from a client through a third-party online payment program that holds the funds outside of a client trust account?Answer: Rule 4-1.15(a) requires that a lawyer hold property of client’s or third persons that is in the lawyer’s possession in connection with a representation in a client trust account that is either an IOLTA account, non-IOLTA account, or exempt trust account. If a third-party online payment program holds funds belonging to a client or third party, such as advance paid fees or expenses, use of such platform is not permitted unless the funds constitute an advance paid flat fee that does not exceed $2,000 which may be deposited into another account per Rule 4-1.15(c). See Missouri Informal Opinions 2018-10 and 2018-05.Even if Lawyer is collecting funds meeting the exception of 4-1.15(c), an advance paid flat fee that does not exceed $2,000, or is collecting earned fees, the lawyer must still fully consider the terms of use of such program to ensure that client confidentiality is maintained in accordance with Rule 4-1.6. See Rule 4-1.6, Comments [15] and [16]; Rule 4-1.1, Comment [8]; and Missouri Informal Opinions 2021-03, 2018-10, and 2018-09.If Lawyer uses a third-party online payment provider that will allow client or third-party funds to be deposited directly into a client trust account, and ensures client confidentiality, Lawyer should handle such payments akin to the proper procedure for credit card transactions explained in Missouri Informal Opinions 2014-05, 2019-05, and 2020-22, and maintain appropriate records in accordance with Rule 4-1.15(f).]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Tue, 17 Oct 2023 15:40:00 -0500</pubDate>
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<title>Megan Phillips, 2023-24 president of The Missouri Bar</title>
<link>https://news.mobar.org/megan-phillips-2023-24-president-of-the-missouri-bar/</link>
<guid>https://news.mobar.org/megan-phillips-2023-24-president-of-the-missouri-bar/</guid><pp:caseid>601423</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><pp:summary><![CDATA[Megan Phillips is all about conversation. Conversation about the future of the profession, the law’s impact on Missourians, and the value of working together. “To advance the causes of equality, justice, and civic education, The Missouri Bar is where I – and more importantly we – can do the most good,” she says. ]]></pp:summary><description><![CDATA[Phillips was sworn in as the 2023-24 president of The Missouri Bar this September during the bar’s Annual Meeting in Kansas City. Ascending to the rank of Missouri Bar president is no small feat, but Phillips is the type of individual who thrives in the face of a challenge and doesn’t hesitate to step into the role of leader. The St. Louis lawyer has spent the last 17 years as a law clerk for a string of judges in the state appellate and federal district courts. She describes her career trajectory as “an ampersand,” but at the core of all her professional positions is a passion for helping those around her and being a catalyst for the widest influence for good. Phillips grew up in Kansas City, the daughter of a teacher and a lawyer. After attaining her bachelor’s degree at the University of Missouri, she moved to France, where she nannied for a Parisian family and obtained advanced degrees in French. That wasn’t her only brush with the City of Lights, however. She later returned to work for the Paris office of the New York law firm Coudert Brothers, where she focused on contracts and translations. After returning to Missouri for good, Phillips worked in the corporate group at Bryan Cave before accepting a fellowship in Mizzou’s Family Violence Clinic, where she taught with Mary Beck. “I loved working with students and seeing their eyes light up when they helped someone,” Phillips says. When the fellowship ended, she transitioned into a position with the St. Louis County Family Court before stepping into the role of president of the Women Lawyers’ Association in St. Louis. During her time heading the WLA chapter, the group spearheaded a variety of initiatives, including conducting a statewide survey of workplace policies and practices affecting the advancement of women lawyers. Phillips also led the charge to create a taskforce that examined due process violations against battered mothers in juvenile dependency proceedings and organized a multi-disciplinary symposium on the topic for lawyers and social services professionals. “I’ve found nothing more rewarding than public service,” she says. Most recently, Phillips stepped down from her clerking duties to focus on bar work and open her own practice. She notes this new journey is an opportunity to learn more about The Missouri Bar’s numerous tools for solo and small firm lawyers, joking that she’s now the “posterchild” for the bar’s law practice management resources. As president, Phillips wants to steer the course of the bar through its ongoing strategic plan and draw out the best in others. That includes building on wellbeing and diversity initiatives within the bar. “Let’s normalize real talk about tough subjects,” she told lawyers at Annual Meeting. “Lawyers experience alarming rates of depression, anxiety, substance use, and even suicide. Lawyers of color leave the profession at twice the average rate. The bar strives to be a place of inclusion and belonging, where your lived experience is valued and celebrated, and your well-being matters.” Phillips is also focused on capturing the voices of our newest lawyers, who can off er fresh perspectives and knowledge. “We need to talk to each other more,” Phillips says. “We need to cross-pollinate. [New lawyers] need to inform our decisions, and we need to leave the ladder down and start pulling them into our dialogue on policy issues that impact the bar.” Phillips understands the value of early opportunities for service through The Missouri Bar. Previously, she held committee leadership roles in the Young Lawyers’ Section and was eventually elected to the Board of Governors as a representative. She has also chaired the Missouri Joint Commission on Women in the Profession, established by the Supreme Court of Missouri and The Missouri Bar. Her enthusiasm for the bar can be traced to her time with Leadership Academy in 2003. That year, the class focused on overhauling curriculum for the law track at The American Legion Auxiliary Missouri Girls State. She later ended up serving as the program’s law faculty chair, communicating information about the profession with young, ambitious minds. “It was so rewarding to see these girls get so excited about the law and advocacy,” she says. Phillips is continuously looking for ways to share civics lessons with the public and young adults. It’s not uncommon to find her in a classroom, using a Citizenship Education teaching plan as she speaks to students about the rule of law, how it impacts them on a daily basis, and how they can help shape it. “Lawyers are uniquely positioned to correct misconceptions and explain the principle of judicial independence,” she notes. “Next time you’re feeling burned out, go spend an afternoon at your nearest school presenting one of the bar’s lesson plans.” Even outside of work, Phillips likes to stay busy. When she’s not spending time with her friends and family – particularly her son Leo – you can find her teeing off a golf ball, volleying on the tennis court, or rollerblading around Forest Park. ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Mon, 16 Oct 2023 15:00:00 -0500</pubDate>
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<title>Meet #MOLawyers: Peter Stragand</title>
<link>https://news.mobar.org/meet-molawyers-peter-stragand/</link>
<guid>https://news.mobar.org/meet-molawyers-peter-stragand/</guid><pp:caseid>596343</pp:caseid><description><![CDATA[Not everyone gets the chance to work with future generations of lawyers. But for 22 years, Peter Stragand has been able to do just that – even in his retirement. Stragand received his J.D. from Washington University in 1978 and practiced in both private and public settings before transitioning into teaching. As coach of the Kirkwood High School Mock Trial Team, Stragand applies his legal background to help educate students and provides an opportunity for Missouri lawyers to get involved as attorney-coaches. Why do you enjoy coaching the mock trial team?   It provides the opportunity to work with two groups of people: teenagers and attorney-coaches. As every teacher knows, working with young people is exciting and rewarding to see growth in skills and intellect. My other pleasure comes from working with lawyers who volunteer their time. Our mock trial team could not operate or have had any of the success we have without their time and expertise. And I am very proud to say that while I have benefited from the assistance of several local lawyers through the years, our team is currently assisted by six lawyers, including four who were students on teams I coached. How has your background in law impacted your civics education lessons?   I originally became a lawyer because of my interest in government and politics. Once I became a teacher, my legal background supplemented my teaching of the U.S. Constitution, the post-Civil War amendments, and the expanded role of the federal government during the New Deal. What are some of your favorite moments from coaching the mock trial team?   Since I could talk about mock trial forever (ask my friends) it is difficult to choose only a couple of favorite moments. But I have to include a set of moments that always brings me a smile. I try to review every type of preparation that the students create, including all direct and cross examinations, opening statements, and closing arguments. I am careful to make “suggestions” rather than “edits” because I think it is important that the students do their own work while being provided coaching guidance. When I see my experienced students “rejecting” my suggestions, I know that the students have taken full ownership of their work and have reached a level of confidence, knowing they are qualified to make those decisions. What is the best advice (professional or personal) you’ve received?   I would say two suggestions have influenced me professionally as well as personally when confronted with a complex or challenging task. First, I find it is best to break that task down into its essential components and then learn and master each of them, one at a time. The other piece of advice that I have adopted is to determine the ultimate goal and then work backwards as you prepare your work. Regarding trial work, either as a lawyer or as a coach of high school mock trial students, it’s important to formulate the points you need to convey in a closing argument and then work backwards to prepare direct and cross examinations, so they support the points needed for the summation. I believe that is the best way to present a clear and concise case. What is a favorite activity or adventure you’ve experienced since retiring?   I have volunteered as an interpreter at Henry Shaw’s Tower Grove House at the Missouri Botanical Garden and I have given tours of our magnificent Central Public Library as a docent. Also, traveling with my wife, Mary K. Hoff, our children, and friends, to various countries in Europe and to China. I also spend a lot of time walking our golden retriever, Morgan.  Editor’s note: These responses have been edited for clarity and brevity. Do you know someone who should be featured in Meet #MOLawyers? Let us know by emailing <a href="mailto:hkiddoo@mobar.org" target="_blank">hkiddoo@mobar.org</a>. ]]></description><category><![CDATA[molawyers,journal]]></category>
<pubDate>Fri, 13 Oct 2023 15:25:16 -0500</pubDate>
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<title>The Flag: Mistrials, scare zones, and more</title>
<link>https://news.mobar.org/the-flag-long-arm-jurisdiction-error-in-granting-mistrial-negligence-and-more/</link>
<guid>https://news.mobar.org/the-flag-long-arm-jurisdiction-error-in-granting-mistrial-negligence-and-more/</guid><pp:caseid>596210</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left" style="width:127px;" src="https://content.presspage.com/uploads/2361/500_journal-w.dudleymccarter.jpg?x=1643317756219" alt="Journal - W. Dudley McCarter">W. Dudley McCarter W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.<h3>PLAINTIFF MUST PLEAD FACTS TO ESTABLISH LONG ARM JURISDICTION</h3>Creative Compounds, LLC v. ThermoLife International, LLC, No. ED111095 (Mo. App. E.D. 2023).Creative Compounds, LLC appealed the Circuit Court of Cape Girardeau County’s judgment granting ThermoLife International, LLC’s motion to dismiss for lack of personal jurisdiction. Creative argued the trial court erred in dismissing the case for lack of personal jurisdiction because ThermoLife’s tortious conduct was directed at and injured Creative in Missouri, subjecting ThermoLife to the personal jurisdiction of this state.1Because Creative did not satisfactorily plead ThermoLife committed the tort of tortious interference with contract or business expectancy or injurious falsehood in Missouri, Creative did not adequately plead facts establishing personal jurisdiction over ThermoLife. The Missouri Court of Appeal-Eastern District affirmed the dismissal.2The plaintiff has the burden to show the trial court’s exercise of jurisdiction is proper when a defendant raises the issue of personal jurisdiction in a motion to dismiss.3The Supreme Court of Missouri has found that personal jurisdiction refers “to the power of a court to require a person to respond to a legal proceeding that may affect the person’s rights or interests.”4 Additionally, a court evaluates personal jurisdiction by considering the allegations in the pleadings to determine whether, if true, they establish facts that can invoke Missouri’s long-arm statute and support a finding of minimum contacts with Missouri that satisfy due process.5 In Missouri, to invoke long arm jurisdiction, a party must make a prima facie showing of the validity of his claim.6 Because Creative did not satisfactorily plead prima facie facts ThermoLife committed the tort of tortious interference with contract or business expectancy or injurious falsehood in Missouri, Missouri’s long arm statute does not attach.7 Thus, Creative did not adequately plead facts establishing personal jurisdiction over ThermoLife.8 <hr><h3> AFFIDAVIT REQUIRED FOR MEDICAL MALPRACTICE CLAIMS MUST BE SIGNED</h3>Cook v. Parkland Health Center, No. ED 111044 (Mo. App. E.D. 2023).Jimmy D. Cook appealed the circuit court’s dismissal of respondents Dr. Lawrence R. Brown and Dr. Michael Clippard from Cook’s medical malpractice action. Cook asserted that a signed affidavit is not required to comply with the merit-certifying requirements of § 538.225 for medical malpractice claims and that the circuit court erred in dismissing Cook’s claim against Brown on the grounds that Cook failed to file a signed affidavit prior to the running of the statute of limitations. Because Cook’s claim against Clippard sounded in medical negligence and necessitated expert medical testimony, an affidavit of merit was required. The Missouri Court of Appeal-Eastern District affirmed the circuit court’s judgment.9Missouri courts have a two-part test to determine whether the plaintiff must file an affidavit of merit required by § 538.225.10 First, a court must determine whether a healthcare provider-patient relationship existed between the parties.11 Second, a court determines whether the “’true claim’ relates only to the provision of health care services.”12 Because both prongs of the test for an affidavit under § 538.225 are met here, an affidavit of merit was required for the claim against Clippard. Cook asserts that because § 538.225 does not define the term “affidavit” we must apply the rules of statutory interpretation, which he claims supports a finding that the affidavit did not need a signature. However, Missouri holds that the signature of the affidavit is required for an affidavit to be effective.13 Specifically, the Supreme Court of Missouri held that “[t]he rule is well established in Missouri that an unsigned affidavit is no affidavit at all.”14 The Court held that Cook identified no Missouri jurisprudence allowing deviation from the clearly stated requirement that an affidavit must contain the signature of the affiant.15 The Court said it must follow this precedent and thus hold that a signature of the affiant is required for an affidavit to comply with § 538.225, otherwise it “is no affidavit at all.”16 Because the affidavit lacked a signature, Cook failed to comply with §538.225, and the circuit court was statutorily required to dismiss the claims against Brown, the Court held. Cook alternatively argued that the circuit court erred in dismissing his claims because he should have been permitted to retroactively sign the affidavit under Rule 55.03(a). Although Rule 55.03 generally allows a lawyer to correct a missing signature that certifies a filing, the rule does not supersede the signature requirement for affidavits set forth in Zitko and §538.225. The Court has noted that statutory language, both in terms of directing a plaintiff to file an affidavit and directing the court to dismiss the action if an affidavit is not filed, demonstrates that the legislature intended the requirement that a plaintiff file an affidavit with the court be mandatory.17 <hr><h3> TRIAL COURT ERRED IN GRANTING MISTRIAL NOT REQUESTED</h3>Collier v. Steinbach, No. ED 110937 (Mo. App. E.D. 2023).Andrea Steinbach appealed from the order of the trial court granting Anastasia Collier a new trial. Collier and Steinbach were involved in a motor vehicle accident on Hampton Ave. in the City of St. Louis. Collier filed a petition alleging Steinbach was negligent in turning left in front of her vehicle, causing a collision. During closing argument, Steinbach’s counsel stated, “This isn’t a game of Monopoly. This woman got up in front of you – and think about it. Put yourself in her shoes. She has to get up." Collier interrupted, approached the bench, and requested, “not only an instruction to disregard and admonish [counsel] in front of the jury, but [also] a mistrial, and sanctions, and fees, and fines.” Collier’s counsel then asked, “Is the Court inclined to grant a motion for mistrial?” The Court responded that it was inclined “to entertain anything that you guys want to do,” noting, “if you say, Judge, we want a mistrial, I just want you to know – you’ve got to pick. . .” Collier consulted with her counsel, who told the trial court, “We would ask the Court instruct the jury to disregard those comments, admonish [counsel for Steinbach] in front of the jury, and then we’ll move on.” When the jury returned, the court stated, “All right, ladies and gentlemen of the jury, I want you to disregard the previous statement you heard from [counsel for Steinbach]. [His] argument was totally improper, and has no place in any court, you are ordered to not consider it in your deliberations. Does everyone understand?” It was determined that a yes was heard. The jury returned a verdict in favor of Collier in the amount of $100,000 and assessed 85% fault to Steinbach and 15% to Collier. Collier filed a motion for a new trial. The trial court granted Collier’s motion for new trial, finding that although she only requested an instruction to the jury and admonishment of Steinbach’s counsel, it had “erroneously granted those requests and permitted the trial to continue.” The Missouri Court of Appeal-Eastern District reversed the granting of a new trial.18During closing argument, it is improper personalization for counsel to ask the jury to put themselves in the place of the victim or another party.19 It has been repeatedly held that, “when the trial court sustains an objection to improper argument, and no further remedial action is requested, no error is preserved for appellate review.”20 Numerous Missouri cases have affirmed the trial court’s denial of a motion for new trial where a party fails to request a mistrial because the party has waived the right to claim error.21 The Court concluded, as in Glasgow v. Cole,22 that by declining to seek a mistrial, Collier implicitly decided the comment made by Steinbach’s counsel during closing argument was not so significant to require the drastic remedy of a mistrial and waived any potential prejudicial effect. <hr><h3> PATRON OF AMUSEMENT PARK ASSUMED RISK OF INJURY</h3>Munoz v. Six Flags, St. Louis, LLC, No. ED 111118 (Mo. App. E.D. 2023).Carly Munoz appealed from the grant of summary judgment in favor of Six Flags St. Louis, LLC d/b/a Six Flags St. Louis on Munoz’s negligence claim. The trial court granted Six Flags’ motion for summary judgment based on assumption of the risk due to the nature of the event, i.e., actors scaring guests during the park’s annual Fright Fest. The Missouri Court of Appeal-Eastern District affirmed the judgment.23 On Oct. 19, 2019, Munoz attended Six Flags’ Fright Fest with her cousin. Before attending Fright Fest, Munoz understood characters in the park would try to scare her. Munoz recalled walking when a clown jumped out in front of her “out of nowhere” and started “chasing” after 10-15 other guests in that area. Munoz was injured when she tripped. The court found that the implied primary assumption of the risk doctrine states “if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it.”24 Further, the court noted the participant “is deemed to have assumed the risk of injury from inherent risks of an activity that are known and understood.”25 and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks.”26 The doctrine is generally applied to bar claims for injuries resulting from recreational or sporting activities as their inherent risks cannot be eliminated. The court affirmed the trial court’s finding that Munoz’s injury was caused by the inherent risk she assumed, not by any allegedly negligent act by Six Flags or its actor. The court ruled that alleging a defendant was negligent is not enough to overcome the implied primary assumption of the risk doctrine, adding, “Munoz knew of and accepted the risk of being around other guests who were likely to run from Fright Fest actors, something she witnessed and was ‘perfectly obvious‘ to her for three hours before she was injured.” Finally, though the court found no other Missouri cases involving assumption of the risk and “haunted” attractions, other jurisdictions have found attraction operators have no duty to protect a patron from his or her reaction to scares, including Griffin v. The Haunted Hotel, Inc.,27 where the California court applied the same test Missouri courts apply for assumption of risk as a bar to recovery.28 The court determined that Munoz knew characters at Fright Fest are expected to frighten patrons and knew the risk that frightened guests might fall while running away. <hr><h3> ENDNOTES  </h3>1 Creative Compounds, LLC v. ThermoLife International, LLC, No. ED111095 (Mo. App. E.D. 2023).2 Id.3 Babb v. Bartlett, 638 S.W.3d 97, 104 (Mo. App. E.D. 2021) (quoting Consol. Elec. & Mechs., Inc. v. Schuerman, 185 S.W.3d 773, 775 (Mo. App. E.D. 2006)). 4 State ex. Rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490, 493 (Mo. banc 2019) (quoting State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 230–31 (Mo. banc 2017)). 5 State ex rel. Key Ins. Co. v. Roldan, 587 S.W.3d 638, 641 (Mo. banc 2019) (quoting Cedar Crest Apartments, LLC, 577 S.W.3d at 496 n.5).6 State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 139 (Mo. banc 1987) (citing State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970)).7 Roldan, 587 S.W.3d at 643; Hartenbach, 742 S.W.2d at 139.8 Roldan, 587 S.W.3d at 643; Babb, 638 S.W.3d at 104.9 Cook v. Parkland Health Center, No ED 111044 (Mo. App. E.D. 2023).10 Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 331–32 (Mo. banc 2011).11 Id.12 Id.13 See Land Clearance for Redevelopment Auth. Of City of St. Louis v. Zitko, 386 S.W.2d 69, 78 (Mo. Banc 1964).14 Id.15 See Zitko, 386 S.W.2d. at 69.16 Id.17 Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d at 260, 271–72 (Mo. banc 2014).18 Collier v. Steinbach, No ED 110937 (Mo. App. E.D. 2023).19 Henderson v. Fields, 68 S.W.3d 455, 473 (Mo. App. W.D. 2001).20 Maloney v. Benchmark Ins. Co., 628 S.W.3d 667, 680 (Mo. App. W.D. 2021).21 See Maloney, 628 S.W.3d at 681.22 Glasgow v. Cole, 168 S.W.3d 511, 515 (Mo. App. E.D. 2005),23 Munoz v. Six Flags, St. Louis, LLC, No. ED 111118 (Mo. App. E.D. 2023).24 Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014).25 Ferbet v. Hidden Valley Golf and Ski, Inc., 618 S.W.3d 596, 606 (Mo. App. E.D. 2020).26 Ferbet, 618 S.W.3d at 606 (quoting Coomer, 437 S.W.3d at 197).27 Griffin v. The Haunted Hotel, Inc., 242 Cal App. 4th 490 (2015).28 Id. at 501.]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Fri, 13 Oct 2023 08:00:00 -0500</pubDate>
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<title>Writing It Right: Advice about written advocacy from the Washington Court of Appeals</title>
<link>https://news.mobar.org/writing-it-right-advice-about-written-advocacy-from-the-washington-court-of-appeals/</link>
<guid>https://news.mobar.org/writing-it-right-advice-about-written-advocacy-from-the-washington-court-of-appeals/</guid><pp:caseid>596175</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><description><![CDATA[<img class="image_resized image-style-align-left " style="height:130px;margin:3px 10px;width:100px;" src="//content.presspage.com/uploads/2361/500_doug-abrams-100x130.png?x=1581792723103" alt="">Douglas E. AbramsDouglas E. Abrams, a University of Missouri law professor, has written or co-written six books, which have appeared in a total of 22 editions. Four U.S. Supreme Court decisions have cited his law review articles. His writings have been downloaded more than 49,000 times (in 153 countries). His latest book is Effective Legal Writing: A Guide for Students and Practitioners (West Academic 2d ed. 2021).In 1940, veteran U.S. Supreme Court advocate John W. Davis delivered his essay, “The Argument of an Appeal.”1 The essay primarily explored oral argument, but also weighed in on the art of brief writing.2 Davis knew his subject well. The U.S. solicitor general during Woodrow Wilson’s presidency, he briefed and argued more appeals before the Supreme Court than any other lawyer in the 20th century (141 in total).3The esteemed Davis opened his essay with a light touch and a creative analogy. The most constructive advice about effective appellate advocacy, he wrote, would come not from an advocate, but from a judge, who is “the target and the trier of the argument.”4[S]upposing fishes had the gift of speech,” Davis reasoned, “who would listen to a fisherman’s weary discourse on fly casting . . . and all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach?”5 An appellate advocate, Davis analogized, “is angling . . . for the judicial mind.”6Advocacy’s “targets” and “triers”Davis stated a truism: In opinions, law journal commentary, continuing legal education lectures, and similar venues, judges – the “targets” and “triers” who read and hear advocacy – contribute valuable perspectives about what persuades and what does not.This article concerns “Briefly Speaking: Brief Writing—Best Practices,” a collection of sound advice that appears on the website of the Washington Court of Appeals, the state’s intermediate appellate court.7 The court’s judges explore strategies of appellate practice, but that is not all. In this article, I select five of the court’s insights about effective written expression, insights that can enhance the quality not only of brief writing, but also of much other legal writing. The five entries below are quotes by the court of appeals, and I add supportive commentary.1) “BE BRIEF. There is no correlation between length and likelihood of success. Typically, the shorter briefs that get right to the point are better organized and more likely to inspire careful reading.”8At the core of effective brief writing is the advocate’s judgment call about the virtues of brevity and the potentially harmful effects of overwriting.On the one hand, consider the wisdom that opera singer Dorothy Sarnoff prescribed years ago for success on stage: “Make sure you have finished speaking before your audience has finished listening.”9 An advocate should similarly strive to finish writing before the audience finishes reading.Brevity, the core of Sarnoff’s wisdom, remains a prudent advocate’s lodestar because undue length risks camouflaging the brief’s central points amid verbal underbrush. This underbrush may impose factual or legal haze that would enable opponents to distinguish or deflect central points made in the brief.Not only that, but as judicial dockets have swelled in recent decades, judges managing heavy caseloads have reportedly grown increasingly impatient with overwritten briefs. “I have yet to put down a brief,” reports U.S. Supreme Court Chief Justice John G. Roberts Jr., “and say, ‘I wish that had been longer.’ . . . Almost every brief I’ve read could be shorter.”10The Washington Court of Appeals quotes these cautionary words to advocates from federal D.C. Circuit Judge Patricia M. Wald: “Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; if short, they read slower. Figure out yourself which is better for your case.”11On the other hand, brevity’s virtues mark only half of the advocate’s expressive calculus because unwarranted brevity may disserve the client’s interests. In the exercise of professional judgment, the advocate may conclude that a case’s factual or legal complexity requires a longer rather than a shorter writing. Each case has its own distinctive character, and impulses that warrant brevity must co-exist with the ultimate goal of effective presentation.In the final analysis, the advocate’s soundest goal is a healthy balance – a writing (a) that is as brief as possible, consistent the court’s maximum-page rule but (b) that also fulfills the professional obligation to the client and the court to effectively recite the facts, law, and argument.122) “EDIT. Feel free to throw away your first drafts. . . .”13Editing begins with the writer. “There is no such thing as good writing. There is only good rewriting,” said U.S. Supreme Court Justice Louis D. Brandeis, who reportedly sometimes rewrote his draft opinions for substance or style a dozen or more times before the final product satisfied him.14 Self-editing works for judges, and it also works for the lawyers who argue before them.Self-editing is ideally only the beginning of brief writing’s editorial process. Pride of authorship energizes serious writers, but prudent brief writers also remain receptive to careful editing of early drafts, when time permits, by a colleague or other third person who can offer fresh, candid review and critique. Brief writing can be a team effort, with third-person editors as the writer’s valued teammates.For the client’s sake, the advocate’s true pride of authorship should reside in the final submission to the court, and not in preliminary drafts that are destined for revision or discard.3) “PROOFREAD.”15Lawyers prevail on the merits in some cases but not in others. Win or lose, however, a track record of competent brief writing encourages respect among bench and bar for the lawyer’s work product. A solid professional reputation is difficult to earn and difficult to maintain, but easy to lose.Judges may remain tolerant of a brief’s occasional typo or similar failing,16 perhaps because perfection is elusive and judges are typically former practitioners who recall that time pressures, tight deadlines, and financial constraints can define a lawyer’s practice. As lawyers strive to get everything right, an occasional miscue may evade attention and remedy.At some point, however, a brief riddled with misspellings, grammatical errors, or similar shortcomings may lead judicial readers to suspect that the writer might also be less than careful about substantive or procedural recitation and argument.174) “STAY WELL UNDER THE PAGE LIMIT. Do not use footnotes and other devices to squeeze more words onto each page.”18This entry is related to entry one above. Facing swelling dockets and increasingly complex litigation in recent years, courts have mandated page limits for briefs and other written submissions. Page limits are maximums that an advocate must heed (unless, in the unusual case, the court grants leave to submit a filing that exceeds the limit). The advocate is under no compulsion to approach or meet the maximum, however, and may “finish early.” Balanced brevity, grounded in an economy of words, remains the advocate’s ambition.Judges spend their judicial careers reading briefs and other filings, and they are unlikely to be fooled by an advocate’s effort to evade maximum-page limits by larding the submission with excessive footnotes in a smaller font. Rules prescribing generally applicable maximum-page limits reflect the court’s good faith effort, in the interests of justice, to enable advocates to fully present the facts, law, and argument. Like other generally applicable court rules, page limits drawn from experience work more often than they do not.Self-discipline remains a legal writer’s ally. If an advocate feels especially constrained by the maximum-page limit in an exceptional case, the most ethical approach is not footnote abuse, but instead disciplined editing until the submission remains within bounds. If an advocate forecasts that disciplined editing will not bring the brief within the limit, the advocate may consider moving for leave to file a brief whose length exceeds the rules’ maximum.5) “Include some type of short summary or introduction.”19Judges are generalists and not specialists.20 They acknowledge that the dueling advocates may initially be more familiar with the case’s facts and law than the court is.21 The advocates may have lived with the case or their clients’ circumstances before the court receives the papers, and the issues may be within the advocates’ specialty and experience.“Frontloading” – opening a brief, section, or other lengthy presentation with a short summary and overview of what follows – helps remedy any initial imbalance between advocates and the court. Space devoted to frontloading counts in calculating compliance with maximum-page limits; however, efficient frontloading is space well spent because the resulting roadmap orients the court and enables it to focus more fruitfully on the dispositive procedural and substantive issues.22* * *After all these years, this is my final “Writing It Right” article. I remain grateful for the encouragement and support I have received from The Missouri Bar and from individual members. Thank you very much. -D.E.A.ENDNOTES1 96 A.B.A. J. 895 (1940), reprinted in John W. Davis, The Argument of an Appeal, 3 J. App. Practice & Process 745 (2001).2 3 J. App. Practice & Process, supra note 2 at 746-47.3 Listening to John W. Davis, 3 J. App. Practice & Process 743, 744 (2001).4 3 J. App. Practice & Process, supra note 2 at 745.5 Id. at 746-47.6 Id. at 745.7 Washington Court of Appeals, Div. 1, CLE, “Briefly Speaking”: Brief Writing – Best Practices, <a href="https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.display_divs&folderID=div1&fileID=briefWriting" target="_blank">https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.display_divs&folderID=div1&fileID=briefWriting</a>; <a href="https://www.courts.wa.gov/appellate_trial_courts/" target="_blank">https://www.courts.wa.gov/appellate_trial_courts/</a> (Click on link in right-hand column).8 Id.9 Western Mail (Cardiff, Wales), May 20, 2008, at 17 (quoting Sarnoff). See also Douglas E. Abrams, Effective Legal Writing: A Guide for Students and Practitioners 46 (2d ed. 2021) (same).10 Bryan A. Garner, Interviews with United States Supreme Court Justices: Chief Justice John G. Roberts, Jr., 13 Scribes J. Legal Writing 35 (2010); see also, e.g., Bryan A. Garner, Interviews with United States Supreme Court Justices: Justice Stephen G. Breyer, id. at 167 (2010) (most briefs are “[t]oo long. Don’t try to put in everything”).11 Patricia M. Wald, 19 Tips From 19 Years on the Appellate Bench, 1 J. App. Practice & Process 10 (1999).12 Douglas E. Abrams, supra note 10 at 50. 13 Washington Court of Appeals, supra note 8.14 Eugene C. Gerhart, Quote It II: A Dictionary of Memorable Legal Quotations 462 (1988) (quoting Justice Brandeis); Pride of Authorship, 37 A.B.A. J. 209 (1951) (editorial).15 Washington State Court of Appeals, supra note 8.16 See, e.g., Gaskins v. Baltimore City Public Schools, 2016 WL 192535 at * 3 (D. Md. Jan. 15, 2016), aff’d sub nom. Gaskins v. Abiodun, 649 F. App’x 307 (4th Cir. 2016) (“While an occasional typo is perhaps inevitable and certainly forgivable, an abundance of errors tends to discredit the substance of a brief.”).17 Gaskins v. Baltimore City Public Schools, supra note 17 at * 3.18 Washington Court of Appeals, supra note 8.19 Id.20 Indiana Lumbermens Mut. Ins. Co v. Reinsurance Results, Inc., 513 F.3d 652, 658 (7th Cir. 2008).21 Douglas E. Abrams, supra note 10 at 17.22 Id. at 16-17. ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Thu, 12 Oct 2023 13:00:25 -0500</pubDate>
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<title>Executive Summary: Happy New Year!</title>
<link>https://news.mobar.org/executive-summary-happy-new-year/</link>
<guid>https://news.mobar.org/executive-summary-happy-new-year/</guid><pp:caseid>596055</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/1920_mischabufordepps.jpg?10000"> Mischa Buford EppsHappy New Year! No, that is not a typo. Annual Meeting culminates a Missouri Bar year and launches another anew. During this gathering, we celebrate colleagues, collaborate with peers, and transition leadership. Special thanks to the attendees, speakers, sponsors, exhibitors, volunteers, and staff who made the 2023 Missouri Judicial Conference and The Missouri Bar Annual Meeting a success. Be sure to flip through the list of award recipients recognized during Annual Meeting by the bar, foundation, and Young Lawyers’ Section. These lawyers uphold some of the highest standards in our profession and have been recognized accordingly. If someone in your circle is doing great work, I implore you to nominate them for consideration next year.  I want to take a moment to thank Lauren Tucker McCubbin, 2022-23 Missouri Bar president, for her service to the profession during her term.  I also want to welcome Megan Phillips to the role as 2023-24 president of The Missouri Bar. Please take a few minutes to read her first President’s Page and profile piece in this issue. At The Missouri Bar, leadership takes place at all levels. A new bar year ushers in new committee appointments and board members, selected to represent you –Missouri lawyers. We are  fortunate  to have an impressive slate of volunteer leaders. Some are new to the profession; others are seasoned in their careers. Some operate solo or in small firms; others work in-house or at large firms. Some represent large cities; still others come from rural areas of our state. All are valuable and appreciated. And they make an impact. As we welcome our newest lawyers during the Fall Enrollment ceremonies, we pause to consider how we can best help them better serve their clients and communities. The lawyers and judges who graciously contribute their time and expertise as leaders are guiding figures for these incoming cohorts, serving as the very embodiment of The Missouri Bar and its myriad benefits. They set a tremendous example. I also hope that those transitioning into their well-deserved retirements feel proud when they cross paths with our current leaders, knowing they are passing on the baton of the profession into capable hands. If you’re ready to dive in and be more involved this bar year, a possible first step is to sign up for one or more of The Missouri Bar’s 40+ committees and sections. Many of them will be meeting this November, offering the perfect opportunity to participate and connect. Committees are the life blood behind the work and activities of The Missouri Bar, from developing legal education offerings, keeping pace with issues impacting the practice,  to advocating for relevant legislative matters. You’ve probably noticed the recent work of the Standing Committee on Well-being in the Profession, which has created a range of resources and events in observation of Suicide Prevention Awareness Month. No matter which groups you choose to join or where you provide volunteer service in bar efforts, I’m confident you’ll build professional relationships and grow even more excited about law as your chosen career.  Please join us in this new year, as we work together across the state to improve the quality of legal services available to our fellow Missourians.   Best regards, Mischa]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Wed, 11 Oct 2023 15:00:00 -0500</pubDate>
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<title>President's Page: The widest influence for good</title>
<link>https://news.mobar.org/presidents-page-the-widest-influence-for-good/</link>
<guid>https://news.mobar.org/presidents-page-the-widest-influence-for-good/</guid><pp:caseid>595880</pp:caseid><pp:subtitle>Vol. 79, No. 5 / Sept. - Oct. 2023</pp:subtitle><description><![CDATA[<img src="https://content.presspage.com/uploads/2361/56c590d7-693f-451d-9e33-3aa6024b13e0/1920_meganphillipsheadshot.jpg?10000">Megan Phillips is 2023-24 president of The Missouri Bar.I’ve always been a joiner. In college, I joined a sorority founded by women who, in 1870, sought equal access to education and the social support of a chosen family. They aspired to challenge themselves intellectually, conduct themselves nobly, and effect the widest influence for good. To be sure, our social shenanigans may have slipped below the nobility standard occasionally, but my college experience among leading women shaped who I am and what I do. It’s my “why” behind my bar service because The Missouri Bar is where I – and more importantly we – can effect the most good.Within the profession, the bar facilitates our support for each other by providing education, practice resources, and networking opportunities to help us thrive and succeed in our service to clients. The bar strives to be a place where your lived experience is valued and celebrated, your well-being matters, and you can find help without judgment.  Within our communities, the bar serves as a conduit for public service and civic education. For a high return on investment, I’ve found few things in life are as fun and rewarding as donating your time and expertise to a classroom or civic group. Next time you’re feeling burned out, spend an hour at your nearest school presenting one of the bar’s ready-made lesson plans, or sign in to Missouri.FreeLegalAnswers.org and make someone’s day by answering their question. It feels good to do good. Within our society, the law is unlike any other profession. Lawyers are the guardians of democracy and the rule of law. We take an oath to uphold and defend the Constitution. Our rules of professional conduct require truth, civility, and integrity because these qualities are vital to the public’s confidence in our justice system. The bar collaborates with and serves the judiciary in furtherance of its critical role as the co-equal Third Branch. I cannot fathom a wider influence. Every president strives to carry on the tremendous work of our predecessors in executing the bar’s strategic plan and adapting to new challenges facing our profession.  Unfortunately, disinformation abounds and fuels public distrust, undermining our courts and the rule of law. Lawyers are uniquely positioned to correct misconceptions and defend the principles of a judiciary free from undue influence to make impartial decisions based solely on the law and facts. With the privilege of our profession comes this civic responsibility. Advances in technology, including generative artificial intelligence and alternative models for the provision of legal services, are barreling toward us. Courts and bars nationwide are working to identify best practices to utilize new tools for efficiency and access while protecting the public from an unregulated market.  Our profession is experiencing a major demographic shift. As Baby Boomers approach retirement, Generation X now comprises the largest group of Missouri lawyers, followed closely by Millennials, with Gen Z just joining.  As our membership evolves, the bar seeks to ensure that underserved communities throughout the state have access to legal services.  And friends, many of us are struggling. We experience alarming rates of depression, anxiety, substance use, and even suicide. Lawyers of color leave the profession at twice the average rate. That’s why the bar will continue its wellness and diversity initiatives and deepen its work at the intersection of the two.  The Supreme Court of Missouri created our unified Bar almost 80 years ago. Today, we enjoy the collective strength of nearly 31,000 members. Like siblings in a family, we may have our internal differences, but we are unified in our common goal to improve the profession, the law, and the administration of justice on behalf of all Missourians. Here, we set aside our differences, optimize our diverse perspectives, and collaborate to best serve our clients and communities. One of the profound benefits of bar service, for me, has been the genuine and otherwise unlikely friendships with lawyers outside my own bubbles. From our interactions and collective success, I have learned that we really are in this life together. Our civility within and beyond the profession is what makes us noble. Unified, we effect the widest influence for good. ]]></description><category><![CDATA[journal,molawyers]]></category>
<pubDate>Tue, 10 Oct 2023 17:00:00 -0500</pubDate>
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