Supreme Court of Missouri
en banc
October 2, 2007
Effective January 1, 2008
Effective January 1, 2008
[CORRECTED]
In re:
(1) Repeal of Comment [9], entitled "Disputes Over Fees," to subdivision 4-1.5, entitled "Fees," of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of a new subdivision (f) of subdivision 4-1.5, entitled "Fees."
(2) Adoption of a new subdivision 4-6.6, entitled "Provision of Legal Services Following Determination of Major Disaster," of Rule 4, entitled "Rules of Professional Conduct," and a Comment thereto.
(3) Repeal of subdivision 5.10, entitled "Resolution of Complaints," of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of a new subdivision 5.10, entitled "Resolution of Complaints," and new Lawyer-to-Lawyer Dispute Resolution Program Guidelines thereto.
ORDER
1. It is ordered that effective January 1, 2008, Comment [9] of subdivision 4-1.5 be and the same is hereby repealed and a new subdivision 4-1.5(f) adopted in lieu thereof to read as follows:
4-1.5 FEES
* * *
(f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.
- 4-6.6 PROVISION OF LEGAL SERVICES FOLLOWING
DETERMINATION OF MAJOR DISASTER
(a) Determination of existence of major disaster. Solely for purposes of this Rule 4-6.6, this Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster has occurred in:
- (1) this jurisdiction and whether the emergency caused by the major disaster affects the entirety or only a part of this jurisdiction, or
(2) another jurisdiction but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction.
The authority to engage in the temporary practice of law in this jurisdiction pursuant to Rule 4-6.6(c) shall extend only to lawyers who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.
(b) Temporary practice in this jurisdiction following major disaster. Following the determination of:
(1) an emergency affecting the justice system in this jurisdiction pursuant to Rule 4-6.6(a), or
(2) that persons displaced by a major disaster in another jurisdiction and residing in this jurisdiction are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is required to help provide such assistance,
(c) Temporary practice in this jurisdiction following major disaster in another jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction and who is not disbarred, suspended from practice, or otherwise restricted from practice in any jurisdiction may provide legal services in this jurisdiction on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyer's practice of law in the jurisdiction or area of such other jurisdiction where the major disaster occurred.
(d) Duration of authority for temporary practice. The authority to practice law in this jurisdiction granted by Rule 4-6.6(b) shall end when this Court determines that the conditions caused by the major disaster in this jurisdiction have ended. A lawyer then representing clients in this jurisdiction pursuant to Rule 4-6.6(b) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients.
The authority to practice law in this jurisdiction granted by Rule 4-6.6(c) shall end 60 days after this Court declares that the conditions caused by the major disaster in the affected jurisdiction have ended.
(e) Court appearances. The authority granted by this Rule 4-6.6 does not include appearances in court except:
- (1) pursuant to Rule 9; or
(2) if this Court, in any determination made under Rule 4-6.6(a), grants blanket permission to appear in all or designated courts of this jurisdiction to lawyers providing legal services pursuant to Rule 4-6.6(b).
For appearances under this Rule 4-6.6(e), the fee specified by Rule 6.01(m) and the receipt therefore are waived.
(f) Disciplinary authority and registration requirement. Lawyers providing legal services in this jurisdiction pursuant to Rule 4-6.6(b) or (c) are subject to this Court's disciplinary authority as provided in Rule 4-8.5. Lawyers providing legal services in this jurisdiction under Rule 4-6.6(b) or (c) shall, within 30 days from the commencement of the provision of legal services, file a registration statement with the clerk of this Court. The registration statement shall be in a form prescribed by the clerk.
Any lawyer who provides legal services pursuant to this Rule 4-6.6 shall not be considered to be engaged in the unlawful practice of law in this jurisdiction.
(g) Notification to clients. Lawyers authorized to practice law in another United States jurisdiction who provide legal services pursuant to this Rule 4-6.6 shall inform clients in this jurisdiction of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and that they are not authorized to practice law in this jurisdiction except as permitted by this Rule 4-6.6. They shall not state or imply to any person that they are otherwise authorized to practice law in this jurisdiction.
COMMENT
[1] A major disaster in this or another jurisdiction may cause an emergency affecting the justice system with respect to the provision of legal services for a sustained period of time interfering with the ability of lawyers admitted and practicing in the affected jurisdiction to continue to represent clients until the disaster has ended. When this happens, lawyers from the affected jurisdiction may need to provide legal services to their clients, on a temporary basis, from an office outside their home jurisdiction. In addition, lawyers in an unaffected jurisdiction may be willing to serve residents of the affected jurisdiction who have unmet legal needs as a result of the disaster or, though independent of the disaster, whose legal needs temporarily are unmet because of disruption to the practices of local lawyers. Lawyers from unaffected jurisdictions may offer to provide these legal services either by traveling to the affected jurisdiction or from their own offices or both, provided the legal services are provided on a pro bono basis through an authorized not-for-profit entity or such other organizations specifically designated by this Court. A major disaster includes, for example, a hurricane, earthquake, flood, wildfire, tornado, public health emergency, or an event caused by terrorists or acts of war.
[2] Under Rule 4-6.6(a)(1), this Court shall determine whether a major disaster causing an emergency affecting the justice system has occurred in this jurisdiction, or in a part of this jurisdiction, for purposes of triggering Rule 4-6.6(b). This Court may, for example, determine that the entirety of this jurisdiction has suffered a disruption in the provision of legal services or that only certain areas have suffered such an event. The authority granted by Rule 4-6.6(b) shall extend only to lawyers authorized to practice law and not disbarred, suspended from practice, or otherwise restricted from practice in any other manner in any other jurisdiction.
[3] Rule 4-6.6(b) permits lawyers authorized to practice law in an unaffected jurisdiction and not disbarred, suspended from practice, or otherwise restricted from practicing law in any other manner in any other jurisdiction to provide pro bono legal services to residents of the affected jurisdiction following determination of an emergency caused by a major disaster, notwithstanding that they are not otherwise authorized to practice law in the affected jurisdiction. Other restrictions on a lawyer's license to practice law that would prohibit that lawyer from providing legal services pursuant to this Rule 4-6.6 include, but are not limited to, probation, inactive status, disability inactive status, or a non-disciplinary administrative suspension for failure to complete continuing legal education or other requirements. Lawyers on probation may be subject to monitoring and specific limitations on their practices. Lawyers on inactive status, despite being characterized in many jurisdictions as being "in good standing," and lawyers on disability inactive status are not permitted to practice law. Public protection warrants exclusion of these lawyers from the authority to provide legal services as defined in this Rule 4-6.6. Lawyers permitted to provide legal services pursuant to this Rule 4-6.6 must do so without fee or other compensation or expectation thereof. Their service must be provided through an established not-for-profit organization that is authorized to provide legal services either in its own name or that provides representation of clients through employed or cooperating lawyers. Alternatively, this Court may instead designate other specific organizations through which these legal services may be rendered. Under Rule 4-6.6(b), an emeritus lawyer from another United States jurisdiction may provide pro bono legal services on a temporary basis in this jurisdiction provided that the emeritus lawyer is authorized to provide pro bono legal services in that jurisdiction pursuant to that jurisdiction's emeritus or pro bono practice rule. Lawyers may also be authorized to provide legal services in this jurisdiction on a temporary basis under Rule 4-5.5(c).
[4] Lawyers authorized to practice law in another jurisdiction, who principally practice in the area of such other jurisdiction determined by this Court to have suffered a major disaster and whose practices are disrupted by a major disaster there, and who are not disbarred, suspended from practice, or otherwise restricted from practicing law in any other manner in any other jurisdiction are authorized under Rule 4-6.6(c) to provide legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be reasonably related to the lawyer's practice of law in the affected jurisdiction.
For purposes of this Rule 4-6.6, the determination of a major disaster in another jurisdiction should first be made by the highest court of appellate jurisdiction in that jurisdiction.
For the meaning of "arise out of and reasonably related to," see Rule 4-5.5 Comment [14].
[5] Emergency conditions created by major disasters end, and when they do, the authority created by Rule 4-6.6(b) and (c) also ends with appropriate notice to enable lawyers to plan and to complete pending legal matters. Under Rule 4-6.6(d), this Court determines when those conditions end only for purposes of this Rule 4-6.6. The authority granted under Rule 4-6.6(b) shall end upon such determination except that lawyers assisting residents of this jurisdiction under Rule 4-6.6(b) may continue to do so for such longer period as is reasonably necessary to complete the representation. The authority created by Rule 4-6.6(c) will end 60 days after this Court makes such a determination with regard to an affected jurisdiction.
[6] Rules 4-6.6(b) and (c) do not authorize lawyers to appear in the courts of this jurisdiction. Court appearances are subject to Rule 9. This Court may, in a determination made under Rule 4-6.6(e)(2), include authorization for lawyers who provide legal services in this jurisdiction under Rule 4-6.6(b) to appear in all or designated courts of this jurisdiction without need for such pro hac vice admission. If such an authorization is included, any pro hac vice admission fees shall be waived. A lawyer who has appeared in the courts of this jurisdiction pursuant to Rule 4-6.6(e) may continue to appear in any such matter notwithstanding a declaration under Rule 4-6.6(d) that the conditions created by major disaster have ended. Furthermore, withdrawal from a court appearance is subject to Rule 4-1.16.
[7] Authorization to practice law as a foreign legal consultant or in-house counsel in a United States jurisdiction offers lawyers a limited scope of permitted practice and may therefore restrict that person's ability to provide legal services under this Rule 4-6.6.
[8] The ABA National Lawyer Regulatory Data Bank is available to help determine whether any lawyer seeking to practice in this jurisdiction pursuant to Rule 4-6.6(b) or (c) is disbarred, suspended from practice or otherwise subject to a public disciplinary sanction that would restrict the lawyer's ability to practice law in any other jurisdiction.
3. It is ordered that effective January 1, 2008, subdivision 5.10 of Rule 5 be and the same is hereby repealed and a new subdivision 5.10 and new Lawyer-to-Lawyer Dispute Resolution Program Guidelines adopted in lieu thereof to read as follows:
- 5.10 RESOLUTION OF COMPLAINTS
The chief disciplinary counsel may refer complaints that may be resolved best outside of the formal disciplinary proceedings to either The Missouri Bar Complaint Resolution Program or The Missouri Bar Lawyer-to-Lawyer Dispute Resolution Program, as appropriate. Upon receipt, the designated program shall attempt to resolve the matters raised by the complaint.
If the matter is not successfully resolved or if it appears further consideration by the chief disciplinary counsel is required, the complaint must be returned to the office of the chief disciplinary counsel for appropriate disposition pursuant to this Rule 5.10.
Governance of The Missouri Bar Complaint Resolution Program and The Missouri Bar Lawyer-to-Lawyer Dispute Resolution Program shall be in accordance with the guidelines established for such program and approved by this Court.
When a complaint is referred to either program under this rule by the chief disciplinary counsel, records of all referrals, complaints, conferences and proceedings shall be filed with the chief disciplinary counsel and are subject to the confidentiality restrictions of Rule 5.31.
THE MISSOURI BAR
LAWYER-TO-LAWYER DISPUTE RESOLUTION
PROGRAM GUIDELINES
Overview
Complaints or disputes arising among lawyers concerning financial, property, or professional matters unrelated to any lawyer-client relationship among those lawyers may be submitted to the Lawyer-to-Lawyer Dispute Resolution Program. That complaint or dispute may be:
- 1) submitted by any lawyer involved in the complaint or dispute, or
2) referred pursuant to Rule 5.10 by the office of chief disciplinary counsel where it believes the complaint or dispute may be resolved through alternative resolution rather than formal disciplinary procedures.
All complaints and disputes shall be processed as these guidelines provide.
The program shall be administered by a five-person Lawyer-to-Lawyer Dispute Resolution Committee that will oversee the activities and proceedings in the program. The committee shall be appointed by The Missouri Bar board of governors, with the chair designated by the president of The Missouri Bar. The terms of the committee appointees shall be four years. No committee member shall be requested to serve more than two successive terms.
The committee shall solicit and maintain a list of Missouri attorneys who will serve as a panel of neutrals. In compiling the list of neutrals, the committee shall consider the following criteria: (1) years of practice; (2) years of practice in Missouri; (3) specific training or experience; (4) specific training provided by The Missouri Bar on the relevant Missouri Rules of Professional Conduct; (5) minority representation, and (6) other relevant factors. The neutrals of the program shall be appointed to four-year terms and may be reappointed to successive terms, provided they agree to serve.
Unless the parties stipulate otherwise, disputes will be assigned to a neutral from outside the parties’ geographic regions. For this purpose, the neutral may neither reside nor maintain an office in the county in which any of the parties practice or reside unless the parties, in their agreement for facilitation, agree that the neutral from that geographic region be appointed.
All program proceedings are confidential. All inquiries, all proceedings and all communications with the committee, the administrator, the parties, and the neutral are not subject to discovery or production in any other forum or for any other purpose. See section 435.014.2, RSMo. Even information as to the identity of the parties and the fact of a dispute is confidential. No neutral or candidate for appointment as a neutral shall disclose to any person any confidential information acquired as a result of or in connection with a complaint or dispute processed under these guidelines, except with the consent of the parties, or as required by Rule 4-8.3, or as otherwise required by law.
The dispute resolution administrator shall be responsible for maintaining all files received, assigning neutrals, giving notices, making arrangements for all conferences, record keeping, compiling reports to The Missouri Bar and chief disciplinary counsel, and handling administrative tasks. The administrator shall be designated by the executive director of The Missouri Bar. The administrator may delegate program administrative tasks as appropriate and as approved by the executive director of The Missouri Bar.
By participating in the program and submitting to these rules, the parties agree that The Missouri Bar, its agents and employees, and any assigned neutral shall not be liable to any person for any act or omission in connection with any proceeding conducted under these guidelines. The parties further agree that The Missouri Bar, its agents and employees, and the assigned neutral shall have the same immunity from civil suit or claim in connection with any conduct or actions under the proceedings described herein that a judicial officer or body would have in a court preceding.
The goal of this program is to provide an efficient, private, cost-effective and voluntary mechanism for resolving economic and professional disputes between and among lawyers. This program is intended to protect the interests of clients and benefit the judicial system, the public, and the profession by preventing additional burdens on an already over-burdened court system.
Procedures
The Missouri Bar offers the parties non-binding facilitation as the preferred mechanism for dispute resolution. In the event that non-binding facilitation is not successful in resolving any complaint or dispute, binding arbitration will be offered. Submission of the dispute to non-binding facilitation shall be a prerequisite to the offer of binding arbitration.
1. The first step in the process is the submission of the complaint or dispute to the program by any party to the dispute by the filing of a notice of dispute and request for facilitation with the administrator or referral of the complaint or dispute to the program by the chief disciplinary counsel.
2. Upon receiving the complaint or dispute, the administrator shall open a dispute resolution program file. The administrator shall assign a chronological docket number to the matter using as a prefix the year the complaint was received; prepare a manual index for each matter; and maintain a computerized record of each matter, which shall contain the same information as the manual index.
3. For each matter, the administrator shall open a confidential file, which shall contain the original of all documents submitted to the program. This file will remain at all times in the custody of the program. The file and manual index will each prominently be marked “confidential,” and the computerized docket will be password protected. The administrator will take all reasonable steps to maintain confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the confidential files of the program are the committee, administrator, program secretary, personnel authorized by the Supreme Court of Missouri, the parties, and their respective counsel, if any. The office of chief disciplinary counsel also shall have access to the confidential files, except for internal memoranda, if the complaint or dispute was referred by that office.
4. All written communications from the program to the parties shall bear the legend, “ALL PROCEEDINGS OF THE DISPUTE RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED.” In addition, all envelopes should be marked, “PERSONAL AND CONFIDENTIAL.”
5. Promptly after receipt of the submission or referral, the administrator shall contact all parties or their counsel by facsimile or mail and advise them regarding all appropriate administrative agreements and the neutral selection process. All parties will be asked to sign an agreement for facilitation, developed by the committee, agreeing voluntarily to participate in the program.
6. If any party fails to sign the agreement for facilitation, the administrator shall mail a second written inquiry as to the willingness to execute the agreement. If any party initially failing to sign an agreement does not do so within ten days after the administrator mails the second written inquiry, the file shall be closed and all parties notified of such closure.
7. Upon execution of all agreements for facilitation, the administrator will assign a neutral from the panel.
8. Before determining the neutral's availability to serve, the administrator shall advise the neutral of the identities of the parties in order to determine the possibility of conflicts of interest. The neutral should attempt to determine whether members of the neutral's firm or organization have any relationship with any party. In doing so, the neutral should keep in mind that the process is confidential and that any inquiries concerning conflicts should be made discreetly. If the neutral does not believe that he or she can serve as an impartial neutral, the administrator should be advised to assign the matter to another neutral.
Within ten days of the receipt of notification of the name of the assigned neutral, any party may exercise a peremptory challenge to the person serving as the neutral, at which time the neutral must be excused. A new neutral must be assigned to the case. Only one peremptory challenge shall be allowed to each party for each process initiated under this program. Upon application within such ten-day period by any party who has previously exercised its peremptory challenge and an opportunity for all other parties and the assigned neutral to respond, the committee may disqualify an assigned neutral for good cause. Upon such disqualification, a new neutral will be assigned.
9. The assigned neutral shall make the initial contact with each of the parties to ascertain the nature of the dispute and the parties’ respective positions. The neutral shall request such information from all parties as may be reasonably necessary to promote a thorough understanding of the issues and to produce meaningful suggestions for resolving the dispute.
10. All sessions shall be scheduled at the earliest date practicable. Sessions shall take place at a site mutually agreed upon by the parties and the neutral. If the parties are unable to agree upon a site, the neutral shall designate a neutral site. The neutral’s offices, courthouses, and the offices of the state and county bar associations shall be considered neutral sites for this purpose. Any neutral may request the administrator’s assistance in scheduling sessions and notifying parties of the time and place of such sessions.
11. Time shall be provided at each facilitation session for the frank exchange of all parties' views. At the request of any party or the neutral, the neutral may caucus individually with one party at a time. All statements made during the caucus shall be kept confidential between the neutral and the caucusing party, except insofar as the caucusing party permits the neutral to disclose such statements to the other parties. There shall be no limitation on the duration or the number of facilitation sessions. After the first session, additional sessions may be scheduled by mutual agreement of the parties and the neutral. If a party fails to appear at a facilitation session, the remaining parties may agree to proceed with the session if they feel that progress can be made in the absence of a party.
12. Parties shall be entitled to legal representation if they choose. Parties shall be responsible for arranging and paying for their own legal representation. Subject to other of these guidelines, additional persons may be allowed to attend the facilitation sessions; however, the neutral shall have the discretion to exclude from any session any person who she or he considers counterproductive to the process and may limit the number of legal representatives who may speak for each side.
13. The neutral shall not be considered legal counsel for any party and shall not provide legal advice to any party. The neutral may, however, identify legal issues as they arise during the course of the session. The neutral shall attempt to alert the parties to the requirements of the Rules of Professional Conduct and other applicable ethical codes and shall not knowingly participate in the formation of a resolution of a complaint or dispute in violation of any such codes.
14. The services of the neutral shall be on a volunteer basis and the neutral’s expenses shall be reimbursed by The Missouri Bar.
15. The administrator will consult with the neutral about requests to postpone a scheduled session or requests for adjournment. The neutral shall consider and decide all requests for adjournments, but adjournments should be granted sparingly.
16. The neutral will conduct all facilitation sessions informally. At the initial session, the neutral should make clear to the parties that the neutral is not serving as a judge. The neutral's role is to promote communication and suggest ways of resolving the dispute; the neutral is not to impose a settlement on the parties. The neutral shall make every effort to hear all the relevant facts, review all the documents, be familiar with any controlling relevant legal principles, and seek to bring about an acceptable resolution for the parties. The neutral should advise all lawyers before the initial session begins that the neutral must report any serious ethical violations, pursuant to Supreme Court Rule 4-8.3. If the neutral takes notes during the conference, they should be either destroyed immediately thereafter or returned in a marked sealed envelope to the administrator's office to be stored in a secure location for five years. The neutral should make sure that any proposal offered for resolution of the matter is clearly understood by the parties, perceived to be fair, and freely entered into by the parties.
17. The neutral shall suspend any facilitation session upon any of the following occurrences: the parties reach an agreement; one of the parties refuses to continue with the process; the neutral assesses that nothing meaningful is to be gained in continuing the process; or upon the request of all parties.
18. The neutral shall attempt to complete the facilitation process within 30 days after its initiation. If the parties reach an agreement, the neutral may assist the parties in reducing their agreement to a written settlement agreement, which shall be binding upon the parties. If the parties fail to reach an agreement, the neutral may recommend binding arbitration.
19. If the parties agree to binding arbitration, it shall be conducted in a manner as agreed by the parties and consistent with these guidelines. If the administrator believes that any process for binding arbitration to which the parties have agreed is in conflict with any of these guidelines, the administrator shall refer the matter to the committee before any neutral is assigned as an arbitrator. The committee's determination as to whether to proceed with such proposed arbitration under this program shall be final. Any neutral previously assigned to facilitate the resolution of the complaint or dispute shall be ineligible for assignment as the neutral for the binding arbitration of the complaint or dispute under this program.
20. Within ten days after the conclusion of the last scheduled session, or if the matter is closed prior to the initial session, the neutral will prepare a brief report reflecting the disposition of the matter, along with a copy of any settlement agreement, which will promptly be sent to the administrator.
21. The administrator should keep in mind that performance of any settlement agreement should take place within a reasonably short time after the facilitation so that the program may close the file. The administrator should advise the parties that they may contact the administrator if they have any difficulty enforcing the agreement.
22. At the conclusion of the matter, the administrator will prepare a brief memorandum reflecting the resolution reached, if any, along with a copy of the settlement agreement or comments from the neutral if a resolution was not reached, which will be forwarded to the committee chair for a final review. The committee chair will review and sign the closing memorandum and return it to the administrator within ten days. The administrator will close the file and forward the closing memorandum, settlement agreement, if any, and the report from the neutral to the parties. If the initial referral of the matter was by the chief disciplinary counsel, the administrator shall also forward a copy of the entire contents of the file to the chief disciplinary counsel.
4. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
5. It is ordered that this order be published in the South Western Reporter.
Day – to – Day
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LAURA DENVIR STITH
Chief Justice