16th Circuit updates juvenile-appointment rule

The judges of the Jackson County Circuit Court have changed a local rule that allows the court to appoint attorneys to serve as pro bono counsel in juvenile cases, giving attorneys a process in which they can seek removal from an appointment if they show “good cause.”

The move follows a Kansas City attorney’s decision to dismiss his challenge of the rule.

At the May 15 court en banc meeting, judges unanimously agreed to change the language of Local Rule 21.6.1.

Judge James Kanatzar, a member of the court’s rules committee, introduced the change, saying the committee fielded input from judges who are familiar with the issue.

“I think everyone who has family court experience, either currently or in the past, has weighed in on this and believes this is the best draft we could come up with in the surrounding circumstances,” he said.

He said the rule change comes out of an interest in giving family court judges more leeway to make decisions about allowing an attorney to withdraw from an appointment, especially in cases of extreme hardship.

In the new rule, the court says that an attorney may be relieved from an appointment if he or she files a motion with the appointing court, demonstrating that he or she meets approved criteria to be released.

Under that point, the court includes criteria from the old version of the rule, which permitted an attorney to be relieved from such an appointment if he or she is 70 or older, in ill health or does not hold an active license. The new rule adds another condition for being released from an appointment: “Other good cause exists for granting the attorney relief from the appointment.”

John Ziegelmeyer, an attorney for HKM Employment Attorneys, moved to dismiss his challenge to the rule on May 8, three weeks after the Missouri Supreme Court granted a preliminary writ blocking his appointment to a custody case involving three children.

His decision to dismiss prevents the high court from considering the constitutionality of the rule, as his attorney Jonathan Sternberg, a solo appellate attorney, expected the court might do.

Ziegelmeyer could not be reached for comment on the dismissal.

Sternberg was the first attorney to challenge the rule, which has been in place since the 1980s.

In writ petitions, both Ziegelmeyer and Sternberg argued they had the right to “the enjoyment of the gains of their own industry” as listed in the Missouri Constitution’s Bill of Rights, and as such, their appointments and the court’s refusal to allow them to withdraw violated their rights.

Sternberg said from his perspective, the Missouri Constitution does not allow the appointment of attorneys in pro bono cases against their will.

How judges interpret “good cause” going forward will be key, he said.

“That’s good enough for me if they’re going to consistently interpret that as meaning any attorney who invokes his or her right to not handle a forced free appointment for the government gets to withdraw,” he said. “Otherwise, I don’t think that changes much.”

Sternberg said he remains interested in seeing if he’ll receive new appointments — he hasn’t since his 2016 case.

“The bottom line is, I choose to do my pro bono work — which I do lots of — in other ways,” he said. “I have no problem with people wanting to participate under the Jackson County rule — more power to them. It’s a good thing for people who want to do it.”

He added that he and many other attorneys want to exercise choice in how they spend their time and resources for pro bono work.

“I hope this is a change for the better, but we’ll see,” he said.