Annual Attorney Education Events

U.S. Chief District Judge Fernando J. Gaitan and Judge Kenneth Starr

U.S. Chief District Judge Fernando J. Gaitan
and Judge Kenneth Starr


Eleventh Annual D. Brook Bartlett Lectures


This year’s Bartlett Lecture attendees enjoyed Supreme Court case analysis not only from Erwin Chemerinsky, dean of the University of California, Irvine School of Law, but also from Ken Starr, president of Baylor University and former federal judge and solicitor general. Hosted annually by the Western District in honor of the late D. Brook Bartlett, the event was held at the Midland Theater, which accommodated more than 500 attorneys drawn by the speakers and the traditional barbecue lunch.

Dean Chemerinsky began with some continuing trends and historic firsts. He reiterated that the Supreme Court’s caseload each term continues to hover in the low 70s, compared to an average of 200 cases being decided each term throughout most of the 20th century. He noted that Justice Anthony Kennedy remains in the majority on the highest percentage of 5-4 decisions. And due to the ages of the justices, President Barack Obama will be unlikely to change the ideological makeup of the court in this or a potential second term. Chemerinsky also highlighted three historic milestones—for the first time, the Supreme Court included three women, no Protestants and four justices hailing from academia.

Ken Starr echoed the concerns about the diminishing Supreme Court docket, and he observed a trend by the court to allow conflicts among the circuits to percolate or fester much longer. He also emphasized the Supreme Court’s “remarkable willingness to defer to administrative agencies” in recent cases.

Richard Fink, Sherri Wattenbarger and Dean Chemerinksy

Richard Fink, Sherri Wattenbarger
and Dean Chemerinksy

Bartlett Lectures Attendees

The speakers reviewed freedom of speech cases, including Snyder v. Phelps, involving the Westboro Baptist Church in Topeka. The church stipulated to commission of the tort of intentional infliction of emotional distress in relation to their behavior and the parent of a service member attending his child’s funeral. However, Chemerinsky reminded the audience of the abundant case law prohibiting the government from punishing speech simply because it is deeply offensive. The Supreme Court was ultimately unwilling to carve out a small, categorical exception to First Amendment doctrine despite the heart-wrenching facts. While Chemerinsky remains unconvinced that the Roberts court is pro-free speech, Starr argued that the current court has a robust regard for First Amendment protections, with student and government employee speech as the exceptions.

Both speakers identified the recent class-action cases AT&T Mobility v. Concepcion and Wal-Mart Stores, Inc. v. Duke as two of the most important decisions of the term, agreeing that those decisions raised the bar for “commonality” and substantially restricted class-action cases. Chemerinsky drew the biggest laugh of the morning when explaining the AT&T case, which involved a typical consumer cellphone contract containing an arbitration clause. The Supreme Court ultimately found a class ban embedded in the arbitration clause to be enforceable. Chemerinsky then described his own encounter with such contracts of adhesion when purchasing a new Dell computer. The new computer required him to “click” his agreement to a standard contract that contained an arbitration clause. Unwilling to click it, he sent Dell a letter declining to agree to their arbitration clause and declaring that by opening his letter, they were agreeing that he could sue them.

Burnele Powell and U.S. District Judge Gary A. Fenner

Professor Burnele Powell
and U.S. District Judge Gary A. Fenner

Overall, the presenters offered real-time insight on Supreme Court decisions and trends as well as proof that differences can be debated collegially and with humor. Their Supreme Court case summaries may be found at http://www.mow.uscourts.gov/outreach/dbb/dbb_s_ct_sum.pdf.

Following the Supreme Court review, Burnele V. Powell, professor at University of South Carolina School of Law and former dean at UMKC Law, spoke about the ethics of “Protecting Lawyer Confidences in the Internet Age.” Professor Powell described the ease of inadvertently disclosing metadata when sharing electronic documents. He traced the evolution of ethical obligations from the release of unintended hard copies to the current dilemma of releasing electronic documents that can be probed for hidden data.

The court was delighted to present these three distinguished speakers and wishes to thank the members of the bar for their continued support of programming that honors the memory of Judge Bartlett.

 


Fourth Annual Frank W. Koger Bankruptcy Symposium

Judges Venters, Federman and Chief Bankruptcy Judge Dow

Judges Venters, Federman and
Chief Bankruptcy Judge Dow

Each year, the Western District of Missouri bankruptcy judges search for speakers to both educate and entertain at the Koger Symposium, and this year’s presenters definitely fit the bill. Professor Laurie L. Levenson of Loyola Law School and Bankruptcy Judge Eugene R. Wedoff of the Northern District of Illinois spoke to a capacity crowd at the fourth annual symposium on May 13.

Professor Levenson described “The 10 Trickiest Ethical Issues of Our Time,” and she presented ethics dilemmas ranging from whether you should “friend” a judge on Facebook to your obligation if a law partner has a substance-abuse problem. Hailing from Los Angeles, the professor provided good advice for lawyers on giving expert commentary to the press. Because of a lack of ethics code direction in this area, Levenson suggested that lawyers consider the following before commentating: (1) Are you competent and knowledgeable to speak about the particular case? (2) Do you have any conflicts of interest, such as your own ongoing disagreements with the judge on the case? And (3) Why are you doing this? Are your motives for sharing your expertise pure? Levenson cautioned potential commentators against making predictions or using the opportunity as their own personal soapbox.

Levenson also addressed advertising issues where lawyers must distinguish between responding to a potential client that has reached out to them versus an improper solicitation. She reminded the audience of how tweeting, texting and emailing must be evaluated under the same ethics rules we use when sending out hard copy materials. For Missouri lawyers, she advised strict compliance with Rules of Professional Conduct 4-7.2 and 4-7.3. As the ethics rules are slow to catch up with the Internet and social networking, one of Levenson’s overriding themes was for lawyers to exercise good judgment even if an action is not expressly prohibited–just because we can do something doesn’t make it the best choice, she offered.

Following the ethics discussion, Judge Gene Wedoff spoke on means testing in the aftermath of the Supreme Court rulings in Lanning and Ransom. Judge Wedoff gave a comprehensive review of the means test as a presumption of abuse under Chapter 7, including exemptions, calculating current monthly income (CMI) and deductions. He highlighted the problem of non-filing spouse income under the definition of CMI, and the statutory language that allows a deduction for health insurance even if the debtor is uninsured and incurs no actual expense. In exploring the “many mysteries of BAPCPA,” Judge Wedoff also discussed the disconnect between the IRS standards and actual living expenses.

John Trader and Kathy Sullivan attend the symposium

John Trader and Kathy Sullivan attend the symposium.

As chair of the Advisory Committee on Bankruptcy Rules, Judge Wedoff provided attendees with drafts of the new means test forms proposed by his committee in light of the Lanning decision. Final versions of the forms would not be expected to go into effect until December 2012, but practitioners in the Western District can now preview the recommendations.

To conclude the symposium, the guest speakers joined Judges Dow, Federman and Venters as well as Assistant U.S. Trustee Dan Casamatta and attorney Dana Estes of the Chapter 13 Trustee’s Office for a panel discussion. Casamatta shared what his office looks for to ensure that CMI and taxes are stated correctly, and Estes reminded practitioners that her office still needs tax returns to be filed timely. The judges reviewed the 8th Circuit’s “totality of the circumstances” test for hardship discharges on student loans and discussed persuasive fact patterns. Practitioners quizzed the panelists on other topics until the smell of the barbecue in the adjacent room signaled that it was time for lunch.

For those unable to attend, symposium video casts as well as an informal transcript of the Q&A session can be found on the court’s website or via the following link: http://www.mow.uscourts.gov/outreach/koger/2011_program_materials.html.

Home button

Mission | Site Map | Employment | Holidays | Help & Comments | Contact Us | FAQs | Accessibility