KC attorney challenges local pro bono rule

Lawyer says pro bono system does not benefit clients

By Jessica Shumaker
The Daily Record Newswire

ST. LOUIS, MO - A Kansas City appellate attorney is taking aim at a local rule he says deprives attorneys of professional choice and forces attorneys to work for free in juvenile cases.

Jonathan Sternberg's arguments have already gained some traction before the state's highest court.

On April 11, the Missouri Supreme Court ordered a preliminary writ in response to his petition seeking to block Family Court Administrative Judge David Byrn from enforcing orders appointing him as counsel in a child custody case.

The February appointment was the fourth time in the last eight years Sternberg was randomly selected from a list of attorneys to represent an indigent client in juvenile proceedings.

He was ordered to represent the minor's father through the 16th Circuit's Local Rule 21.6.1, which allows for the appointment of attorneys for family court cases. The rule requires appointees to serve for all stages of proceedings, including appeal.

In his petition for the writ, Sternberg wrote that although the rule states attorneys may ask the court to assess fees and costs, except in termination of parent rights cases, "in Jackson County this generally does not result in payment of fees to appointed attorneys because there is no source of funding for these payments."

Sternberg said there are several reasons why the rule needed to be challenged. One is that the work is "a huge time commitment," particularly for small and solo firms. One case he was a part of took about two years to be disposed.

"It's unjust to solo and small firm attorneys who bear the brunt of this," he said, noting that large firms have pro bono counsel who specialize in handling this type of work, while others do not.

He also questioned the adequacy of attorneys handling family court cases without experience in that area.

"It's not right to the appointed clients to have lawyers who really don't know what they're doing and are deprived of choice," he said. "I think there's a large feeling there is inadequate representation in what are very sensitive cases and I felt it was time for this to be challenged."

To underscore that point, Sternberg said the only full trial he's taken part in over the course of his eight years practicing law has been a family court appointment.

"Frankly, I don't know what I'm doing," he said. "Imagine a tax lawyer or a corporate lawyer, or someone who just does transactional stuff. How can that possibly serve these individuals?"

Jackson County Circuit Court officials declined to comment on either Sternberg's case or the local rule itself. Court records list Diane Olmsted, assistant legal counsel for the Family Court Division, as the circuit's attorney.

In court records, Olmsted wrote that it is believed the local rule stems from the 1980s, after discussion and input was sought from the local Bar.

"The policy basis for the rule was to attempt to share pro bono responsibilities equitably among the members of the local Bar," Olmsted wrote.

Attorneys can qualify to withdraw from an appointed case in certain circumstances. Those include serving on two or more appointed cases within the current year, being 70 or older or retired from practice, not practicing law for ill health or having a conflict of interest in a particular case.

Olmsted wrote Sternberg did not qualify for withdrawal.

Sternberg's arguments against the rule hinge on a portion of the Missouri Constitution's Bill of Rights that states Missourians have the right of "the enjoyment of the gains of their own industry," in addition to rights of life, liberty and the pursuit of happiness.

Sternberg argued that his appointment, and the court's refusal to allow him to withdraw from it, violates his constitutional rights to those gains.

He points to the court's 1985 opinion in State ex rel. Scott v. Roper, a case about an attorney appointed to represent an indigent client in a civil case, where the court held the attorney could not be forced to represent an indigent client without pay.

Olmsted argued that the circumstances between Roper and the underlying case are different.

"The appointment in Roper was discretionary and required the attorney to represent an inmate in a civil medical malpractice suit," she wrote in response to Sternberg's request to modify the writ. "The appointment in Roper did not involve constitutionally-protected rights."

Sternberg said he's not against pro bono work, but he would like to see the system reformed so that it's voluntary.

"On some superficial level, I might seem like a Grinch, but that's not the intention," Sternberg said.

Published: Mon, May 16, 2016

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