KC attorney challenges local pro bono rule

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?”

The rule

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. “The Missouri Bar provides an annual list of attorneys who either practice in or reside in Jackson County, and attorneys are appointed in rolling order from that list.”

The list included 6,193 attorneys in 2015, 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.

Since the court approved the preliminary writ, Byrn entered an order to stay the underlying case, in line with what the court ordered in the writ.

Sternberg filed a motion requesting that the court not stay the underlying case and hold it up, noting he was specifically seeking in his petition that the court would stay his appointment. The court sustained his motion to modify on Tuesday.

A constitutional argument

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.”

In her response to his initial petition, she wrote that Sternberg’s appointment in the juvenile case is not unconstitutional because the appointment is required by both the Missouri Supreme Court and by state statute.

She pointed to Missouri Supreme Court 115.03 and R.S.Mo. 211.211, which require the appointment of counsel for indigent parents or guardians in cases where there is a potential loss of parental custody.

Sternberg said that the court is right in that it has to appoint counsel, but disagrees with the execution of that responsibility.

He also argued that his client in the underlying case’s right to counsel is “purely a statutory right,” by the rule and law the court cited.

“Relator’s natural right not to be forced by the government to labor for free, constitutionally guaranteed … outweighs that statutory right,” he wrote in his petition.

Sternberg said Jackson County is the only circuit that has this appointment system. In other circuits, judges have lists of volunteer attorneys who do the work, or work with legal aid groups to find counsel.

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. “My intention is to remedy a bad system for lawyers and most importantly, the litigants.”

Mary Kay O’Malley, law professor and director of the Child and Family Services Clinic at the University of Missouri-Kansas City, said public defenders are overloaded and underfunded, and the court must find ways to provide what the legal system requires.

“I don’t think it’s overburdensome to have one case every two to three years, I just don’t think that’s compelling,” she said. “(It’s) a lot less compelling than the fact that people don’t have access to lawyers.”

O’Malley also disagreed with Sternberg’s point about adequacy of representation. She said attorneys can find assistance or contract out portions of the work to others who are more specialized.

“I think to say such a thing is almost a condemnation on the entire profession,” she said. “I realize they may not be comfortable with it, they may not want to do it, but there are options available to them.”

It also benefits the court to have a variety of experience present, O’Malley said.

“When you have new blood in there, they challenge those assumptions and challenge the status quo and thinking, ‘that’s how we’ve always done it,’” she said. “It’s good for the system and everyone involved, including clients.”

The case is State ex rel. Jonathan Sternberg v. The Hon. David Byrn, SC95610.