Joe B. Whisler

The issue of tort reform was a significant focus of the Missouri General Assembly during the session that came to a close in mid-May, and promises to be the subject of future legislation. As president of The Missouri Bar, I am often asked about the bar's involvement in this issue. In particular, some members question whether The Missouri Bar should have been more actively involved in these issues, which undeniably have a direct effect on the practice of law and the administration of justice.

A committee of the Board of Governors, the Special Committee to Review the Tort System, carefully studied the various tort reform proposals introduced this year. The committee, led by Board of Governors member Vincent F. (Mike) Igoe, Jr. of Liberty, is composed of some of Missouri's best lawyers, evenly balanced between plaintiff's and defense counsel, and they took their charge seriously. While unable to agree about many of the more high profile issues, such as damage caps and venue, the committee did reach a consensus about numerous provisions included in the omnibus tort reform legislation. The committee's conclusions were reviewed by The Missouri Bar's Executive Committee, with those findings endorsed by the Executive Committee communicated in writing to the bill sponsors and other key members of the legislature.

Some of our members would have preferred that The Missouri Bar would take an affirmative position. However, the deliberative and measured input given arises out of The Missouri Bar's long-held legislative policy.

Because of The Missouri Bar's status as a unified bar, restraint is exercised in taking positions on legislation that would offend a substantial portion of the membership. See Keller v. State Bar of California, 496 U.S. 1 (1990). The court in Keller held that where membership in a state bar is mandatory, caution must be taken as to legislative positions taken. In response to Keller a formal policy was adopted by the Board of Governors. First, all positions on legislation must be agreed upon by a two-thirds majority of the board. Before the Board votes on the substance of each bill, a vote is first taken on whether the bill is properly within the scope of The Missouri Bar. Scope is defined by the Policy Statement Regarding Legislative Procedures (revised 2003):

The Missouri Bar limits its legislative activities to proposed legislation that affects the administration of justice, the integrity of the judiciary or the dignity of the profession of law.

The policy further provides: "The Board of Governors may determine to take no position on proposed legislation that is or may be factional, partisan, narrow in interest or as to which substantial constituencies of the bar may in good faith differ."

The seven-person Executive Committee has authority to act on legislation on behalf of the Board of Governors between regularly-scheduled Board meetings. A Missouri Bar Protest and Dues Refund Procedure adopted by the Board of Governors on November 1, 1990, recently amended, allows any bar member to object and request consideration of a pro rata refund of that portion of their dues that supports those activities the member feels are inappropriate.

When the unified Missouri Bar chooses to weigh in on an issue, its expertise and political neutrality are accorded significant weight. Though individual members may be politically active, The Missouri Bar is non-partisan. We need to remain an "honest broker" in the eyes of the legislature.

Participation by the unified bar in legislative activities is an art rather than a science, as complete unanimity on any issue rarely - if ever - exists. Just as judicial precedents evolve, opinions of the bar sometimes change over time. I believe that the common thread of integrity, political neutrality, technical expertise and a commitment to providing constructive input should earn respect for the bar among members of the legislature and an appreciation of the unique contribution the unified bar makes to the legislative process.