Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivisions (5) and (6) of subdivision 2.03, Canon 3B, entitled "Adjudicative Responsibilities," of Rule 2, entitled "Code of Judicial Conduct," and in lieu thereof adoption of a new subdivision (5) and a new subdivision (6) of subdivision 2.03, Canon 3B, entitled "Adjudicative Responsibilities."

(2) Adoption of new subdivisions (e), (f), and (g), of subdivision 4-7.2, entitled "Advertising," of Rule 4, entitled "Rules of Professional Conduct," and additional paragraphs to the Supplemental Missouri Comment thereto.

(3) Repeal of subdivision (g) of subdivision 4-8.4, entitled "Misconduct," of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of a new subdivision (g) of subdivision 4-8.4, entitled "Misconduct."

(4) Repeal of subdivision (d) of subdivision 8.105, entitled "Limited Admission for In-House Counsel," of Rule 8, entitled "Admission to the Bar," and in lieu thereof adoption of a new subdivision (d) of subdivision 8.105, entitled "Limited Admission for In-House Counsel."


1.  It is ordered that effective January 1, 2004, subdivisions (5) and (6) of subdivision 2.03, Canon 3B, be and the same are hereby repealed and a new subdivision (5) and a new subdivision (6) of subdivision 2.03, Canon 3B adopted in lieu thereof to read as follows:

2.03, CANON 3  A JUDGE SHALL PERFORM THE DUTIES OF       JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY


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(5) A judge shall perform judicial duties without bias or prejudice.  A judge, in the performance of judicial duties, shall not by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, sexual orientation, religion, national origin, disability or age, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.


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  (6) A judge shall require lawyers in open court or in chambers to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, sexual orientation, religion, national origin, disability or age against parties, witnesses, counsel or others.  This Canon 3B(6) does not preclude legitimate advocacy when race, sex, sexual orientation, religion, national origin, disability or age or other similar factors are issues in the proceeding.
 

2.  It is ordered that effective January 1, 2004, subdivisions (e), (f), and (g) of subdivision 4-7.2 of Rule 4 be and the same are hereby adopted.  It is further ordered that effective January 1, 2004, three additional paragraphs shall be added to the Missouri Supplemental Comment to subdivision 4-7.2 of Rule 4.  The new subdivisions and the complete Missouri Supplemental Comment as amended shall read as follows:

4-7.2  ADVERTISING


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(e) A lawyer or firm that advertises in the public media shall disclose the geographic location, by city or town, of the lawyer’s or firm’s principal office.  A lawyer or firm shall not advertise the existence of any office other than the principal office unless:

This paragraph (e) shall not apply to line advertisements in telephone directories or similar publications that contain no illustrations or information other than the lawyer’s or firm’s name, address and telephone number.

(f) A lawyer may not, directly or indirectly, pay all or a part of the cost of an advertisement in the public media unless such advertisement discloses the name and address of the financing lawyer, the relationship between the advertising lawyer and the financing lawyer, and whether the advertising lawyer is likely to refer cases received through the advertisement to the financing lawyer.
(g) If an advertising lawyer knows or should know at the time of an advertisement in the public media that a case or matter will likely be referred to another lawyer or firm, a statement of such fact shall be conspicuously included in such advertisement.


Supplemental Missouri Comment

The last part of paragraph (a) as proposed by the ABA Model Rules of Professional Conduct is rewritten to better express the relation between this Rule 7.2 and Rule 7.3.  No substantive change is intended.

Paragraphs (e), (f), and (g) address the issue of advertising that experience has shown misleads the public concerning the location where services will be provided or the lawyer who will be performing these services.  Together these paragraphs prohibit the same sort of “bait and switch” advertising tactics by lawyers that are universally condemned.

Paragraph (e) prohibits advertising the availability of a satellite office that is not staffed by a lawyer at least on a part-time basis.

Paragraph (e) does not require, however, that a lawyer or firm identify the particular office as its principal one.  Experience has shown that, in the absence of such regulation, members of the public have been misled into employing a lawyer in a distant city who advertises that there is a nearby satellite office, only to learn later that the lawyer is rarely available to the client because the nearby office is seldom open or is staffed only by lay personnel. 

Paragraph (e) is not intended to restrict the ability of legal services programs to advertise satellite offices in remote parts of the program’s service area even if those satellite offices are staffed irregularly by lawyers.  Otherwise low-income individuals in and near such communities might be denied access to the only legal services truly available to them.

When a lawyer or firm advertises, the public has a right to expect that lawyer or firm will perform the legal services.  Experience has shown that lawyers not in the same firm may create a relationship wherein one will finance advertising for the other in return for referrals.  Nondisclosure of such a referral relationship is misleading to the public.  Accordingly, paragraph (f) prohibits such a relationship between an advertising lawyer and a lawyer who finances the advertising unless the advertisement discloses the nature of the financial relationship between the two lawyers. 

Paragraph (g) addresses the same problem from a different perspective, requiring a lawyer who advertises the availability of legal services and who knows or should know at the time that the advertisement is placed in the media that business will likely be referred to another lawyer or firm to include a conspicuous statement of that fact in any such advertising.  This requirement applies whether or not the lawyer to whom the business is referred is financing the advertisements of the referring lawyer.  It does not require, however, disclosure of all possible scenarios under which a referral could occur, such as an unforeseen need to associate with a specialist or the possibility of a referral if a prospective client turns out to have a conflict of interest precluding representation by the advertising lawyer.

3.  It is ordered that effective January 1, 2004, subdivision 4-8.4(g) of Rule 4 be and the same is hereby repealed and a new subdivision 4-8.4(g) adopted in lieu thereof to read as follows:

4-8.4  MISCONDUCT


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(g) manifest by words or conduct, in representing a client, bias or prejudice based upon race, sex, sexual orientation, religion, national origin, disability or age.  This Rule 4-8.4(g) does not preclude legitimate advocacy when race, sex, sexual orientation, religion, national origin, disability, or age, or other similar factors are issues.

4.  It is ordered that effective January 1, 2004, subdivision 8.105(d) of Rule 8 be and the same is hereby repealed and a new subdivision 8.105(d) adopted in lieu thereof to read as follows:

8.105   LIMITED ADMISSION FOR IN-HOUSE COUNSEL


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(d) A limited license issued pursuant to this Rule 8.105 shall be automatically nullified if the lawyer's employment in this state by the employer qualifying under Rule 8.105(a)(1) is terminated or if the lawyer is no longer licensed to practice law in another state or territory of the United States as required by Rule 8.105(a).
 
The limited license shall be reinstated if a lawyer's employment is terminated and:

(1) Another employer qualifying under Rule 8.105(a)(1) immediately thereafter employs the lawyer, and
(2) The lawyer notifies the clerk of this Court of the new employer.  

A lawyer admitted pursuant to this Rule 8.105 is required to immediately notify the clerk of this Court of any change in the lawyer’s employment or in the lawyer’s licensure status in other states or territories.

In conjunction with the annual enrollment statement required by Rule 6.01, a lawyer admitted pursuant to this Rule 8.105 shall certify that the lawyer is still employed by the employer qualifying under Rule 8.105(a)(1) or that the lawyer is no longer qualified for the license provided by this Rule 8.105.

5.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

6.  It is ordered that this order be published in the South Western Reporter.

Day – to – Day

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RONNIE L. WHITE
Chief Justice